Tarun Kumar vs State Of U.P. And Others
2011 Latest Caselaw 4529 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 28 
 
Case :- WRIT - A No. - 37003 of 2005
 
Petitioner :- Tarun Kumar
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Rajeev Sisodia
 
Respondent Counsel :- C.S.C.,R.D. Khare
 

 
Hon'ble Ran Vijai Singh,J.

Heard learned counsel for the petitioner and learned Standing Counsel for the State and perused the record.

The petitioner claiming himself to be an adopted son of late Naubahar Singh has filed this writ petition with the following prayer :-

(i) issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 to decide the case of the petitioner about giving service under Dying-in-Harness Rules.

(ii). Issue any suitable writ, order or direction of this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

It is contended that the father of the petitioner died on 28.12.1997 and after his death, the petitioner had filed an application on 06.01.1998 before the respondent no. 2, Executive Engineer, Electricity Distribution Division, Dhampur, District-Bijnor for appointment on compassionate ground under the provisions of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the 'Rules of 1974'). The claim of the petitioner has yet not been decided by the respondent no. 2.

It is also submitted that The Rules of 1974 has been framed with a view to provide immediate financial assistance by providing job to a dependent of the family of deceased employee with a view to mitigate the hardship which has fallen on the family of the deceased employee. Rule 5 of 1974 Rule Provides that one dependent of the deceased family is entitled to be considered for compassionate appointment after the death of an employee.

A counter affidavit has been filed by the respondent no. 2 in which it is stated that a succession case is pending in between the petitioner and the elder brother of the deceased ( the respondent no. 3) Sri Chandra Pal Singh and the said case has yet not been decided. therefore, the application of the petitioner cannot be considered at this stage. It is also stated that the said adoption deed has also been challenged by the elder brother of the deceased, therefore, the application of the petitioner cannot be considered at this stage.

Further the application of the petitioner is not on the proper format,as along with the application the required documents such as educational qualification, date of birth, character certificate and income certificate etc has not been given. It is further submitted that the adopted son cannot be said to be eligible under the Rules of 1974 for compassionate ground and after a such long delay the petitioner's case for compassionate appointment is not worth while to consider.

Heard learned counsel for the petitioner, learned Standing Counsel and Sri Rajendra Kumar Mishra, learned counsel appearing for the contesting respondent and with the consent of the learned counsel for the parties, the writ petition is taken up for final disposal.

From the perusal of the record as well as the submissions made by the learned counsel for the parties, it transpires that the petitioner is a adopted son of late Naubahar Singh who was an employee of Uttar Pradesh Electricity Board (now Uttar Pradesh Power Corporation) who died-in-harness while in service on 28.12.1997. After the death of father, the petitioner has filed an application in January, 1998 seeking an appointment on compassionate ground under the Rules of 1974 but no decision has been taken on the aforesaid application by the respondents. From the perusal of record and rival submissions made by learned counsel for the parties, I find that following questions would arise to decide this case

(1) Whether because of the pendency of the case challenging the adoption deed as well as for obtaining the succession certificate, the petitioner's appointment on compassionate ground could be left pending till the decision of those cases.

(II) Whether it was proper on the part of the respondents to sit over the matter for a such long time merely for the reason that the application did not contain the details of qualification, date of birth and income certificate etc.

(III) Whether the adopted son cannot be put at par with a natural son and on this ground non consideration of the petitioner's application is justified.

(IV) Whether the respondents are right in saying that after such long lapse of time no appointment can be offered.

For deciding this question, it would be necessary to look into entitlement of a person seeking appointment under the Rules of 1974 and the object of the Rules of 1974: Rule 5 of the aforesaid Rule provides that in case a Government servant dies in harness after the commencement of this Rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission in relaxation of the normal recruitment rules if he fulfills the educational qualification prescribed for the post and otherwise qualified for Government service. An amendment has been made in the Rule in the year 1999 providing limitation for filing this application which is said to be five years from the date of death but in appropriate cases, power of relaxation of period of limitation has also been vested with State Government. Rule 2 of the aforesaid Rule provides the definition of the family of the dependent and it is not in dispute the sons are included and treated as a dependent of the deceased employee and are entitled to get an appointment on compassionate ground in accordance with Rules.

The object of this Rules is to provide a suitable job to dependent of a deceased employee who has given his flesh and blood while serving the department with a view to save out his family from financial crunch which has fallen upon the family after the death of the employee. The purpose is to provide immediate help with a view to mitigate the hardship. Here in this case immediately after the death of the father, the petitioner has applied for compassionate appointment but his case has not been considered for the reason that a case setting aside the registered adoption deed and another for grant of succession certificate are pending.

I am of the view that the petitioner is claiming appointment on the strength of the registered adoption deed and unless that adoption deed is set aside by the court of competent jurisdiction, the validity of the aforesaid registered adoption deed cannot be overlooked. Mere, pendency of a case will not dilute the effect and consequences of registered adoption deed. Hence, I am of the considered opinion that the respondent authorities had erred in law by not considering the petitioner's case merely on the basis of pendency of the litigation with respect to the validity of the adoption deed and issuance of the succession certificate. The respondent authority were due bound to consider the claim of the petitioner on the basis of the registered adoption deed without being influenced by the pendency of the cases. Of course, it was open to the respondents, if after consideration of the petitioner's case they had found entitlement of the petitioner for appointment and in that situation they were at liberty to put a condition in the appointment letter itself that this appointment shall be subject to the decision in the pending cases or any other conditions particularly in the circumstances when there is no rival claim for appointment on the compassionate ground.

The point no. 1 is answered in negative.

Point No.2

So far as point no.2 is concerned which takes about the non consideration of the petitioner's application for the absence of details of date of birth, income, character certificate etc., suffice it to say that under the Rules of 1974 no proforma is prescribed for making an application seeking appointment on compassionate ground. What I find from the perusal of the Rules 6 of the aforesaid Rules is that while making an application the information with regard to the date of death of the deceased Government servant, names, age and other details pertaining to all the members of the family of the deceased particularly about their marriage, employment and income, financial condition of the family and the educational and other qualification if any is to be furnished. The Rule 6 of the Rules of 1974 although mentions about the giving particulars as has been noticed but this Rules do not make any provisions that in any case these details are not furnished the application be rejected or will not be considered. What I gather from the perusal of the above Rule, the petitioner seeking appointment on compassionate ground is an under obligation to furnish these details, but, here a question would arise  as to whether for not furnishing the details, the respondents can be right in their submissions in not considering the same in absence of certain details or it is also obligatory on them to require these details for proceeding with the matter looking into the object of the Rules, which is meant for providing immediate relief with a view to mitigate the hardship fallen on the family of the deceased employee. I am of the view that even if few details were missing the respondents were under an obligation to require those details from the applicant who is seeking an appointment on compassionate ground instead of lingering the same for these shortcomings in the application.

It is well settled law that the technicalities cannot and shall not stand while doing substantial justice to the party. The technicality could be removed either by the applicant suo motu or after requirement by the respondents. Here in this case, I do not find any material on record from which it cannot be inferred that the respondent has ever shown the reason for non consideration of the petitioner's application for not supplying the details along with the application. Therefore, at this stage it is too late to say and something unbelievable that the respondents have not considered the case because of shortcomings in the application. In this back drop, I am of the view that even if there was some shortcomings in the application, it was incumbent upon the department to require those details from the applicant instead of sitting tight over the matter without disclosing the same to the applicant or rejecting the application for this reason. Point no.2 is also answered in negative.

Point No.3 :-

So far as the third point is with regard to non consideration of the petitioner's case for the reason that the petitioner's is a adopted son and he will not fall under the definition of dependent as contemplated in Rule 2 of the Rules of 1974 is concerned, suffice it to say that this controversy is no more res integra and this court in the case of Jagat Pal Vs. State of U.P. and others reported in 2011 (2) ADJ 511 considering this type of problem held that the adopted son as well as the natural son shall be put at par. For appreciations few paragraphs of the aforesaid judgment are reproduce below:

17. In so far as the lis involved in this case with regard to equivalence of adopted son with natural son ( aurasa ) under the Rules of 1974 is concerned, it has tobe looked into in the context of the word 'family' as defined under Rule 2 (c) of the Rules of 1974 which runs as under.

(i) Wife or husband

(ii) Sons

(iii) Unmarried and widowed daughters.

(iv) If the deceased was unmarried government servant, brother unmarried sister and widowed mother dependent on the deceased government servant.

From the perusal of Rule 2 (c) (ii) and 2 (c) (iii) of the Rules of 1974 it transpires that the word 'sons' and 'unmarried and widowed daughters' have been mentioned whereas in Clause (iv) the word 'brother' and 'unmarried sister' has been mentioned. Here, in Sub-Rule 2 (c) (ii) and 2 (c) (iii) plurality is attached with the word 'son' and 'daughter' whereas with respect to Sub-Rule 2 (c) (iv) it is in singular form by mentioning (brother and sister) and not 'brothers' and 'sisters'.

18. The problem which is wriggling in my mind is that why the framer of the Rules of 1974, in Rule 2 (c) (ii) and (iii) has attached plurality with the word 'son' and 'daughter' as 'sons' and 'daughters' and why singularity is attached with the word 'brother' and 'sister' in Rule 2 (c) (iv), whereas either it is son, daughter, brother or sister they constitute one class and in each category their number may be more than one, therefore, in view of Rule 5 which provides that only one member of the family is entitled to be considered for appointment, attaching plurality with the word 'son' and 'daughter', the framer of the rule has intended to mean something more behind the attachment of plurality with the word 'son' and 'daughter' and that looking into the object of the rule in recent perspective is to attach plurality means not to infer number of the 'son' and 'daughter' but the kind of the 'son' and 'daughter' who are legally recognized under law, as after the enactment of the Act of 1956 the kind of 'son' and 'daughter' has become more than one i.e. natural/real/son/daughter and adopted son/ daughter. It may be noticed that according to the Act of 1956 right of adoption has been given to a male and female both to adopt either a male or female child. The effect of such adoption is that by virtue of adoption a male or female child becomes a 'son' or 'daughter' as the case may be of the adopter and this constitute a separate category i.e. adopted son/daughter and that is why plurality is not attached with the words 'brother' and 'sister' under Rule 2 (c) (iv) as the kind of 'brother' and 'sister' for the purposes of this rule or other rules is not more than one.

19. Otherwise also the Act of 1956 has been enacted by the Parliament and the provisions contained in this Act, unless something otherwise is provided under this Act, will prevail over any Act of the State legislation or Rules framed under Article 309 of the Constitution of India. In the present case, the Rule which is under consideration has been framed under Article 309 of the Constitution of India, therefore, also the effect of adoption providing same status to adopted child as of a natural child will prevail over the rule in question and both the adopted child as well as the natural child will be treated at par, without there being any difference amongst two.

For the above reason, I am of the view that the Rules of 1974 itself provide that the adopted son/daughter is also included in the definition of family as defined under Rule 2 (c) (ii) and (iii) of the Rules.

In view of that I find that the respondents were not justified in not considering the petitioner's case merely because he is a adopted son. The point No.3 is also answered in negative.

Point No.4:-

So far as the point no. 4 with regard to the submissions of the learned counsel for the respondents in respect to the non consideration of the application at this stage on the ground of long lapse of time is concerned, it is to be noted that it was not the lapse on the part of the petitioner as he has filed an appropriate application well within time in this regard and it is the fault of the respondents to not consider the petitioner's case well within time as intended by the Rules of 1974. I am of the view that no one can be permitted to take advantage of his own wrong and the respondents at this point of time can not say that the petitioner's case is not worth consideration because of long lapse of time. A Division Bench of this Court in Writ Petition NO. 33452 of 2008 Chief Commissioner Central Excise and Customs Lucknow and Others decided on 9.8.2011 has observed as under:-

We are surprised to note that now the respondents are taking shelter of various decisions of Apex Court wherein it has been held that after a long lapse of time no appointment can be made on compassionate ground. We find from the perusal of the judgement that in that case default was not on the part of department therefore that case is distinguishable on facts. Here in this case as we have noticed the default is on the part of government in not considering the petitioner's case for compassionate ground well within time. While dealing with such matter where the delay or lapse was on the part of the employer, learned Single Judge of this Court in writ petition no. 11507 of 2006 -Surendra Prasad Gond vs Union of India and others decided on 27.11.2006 has observed as under:-

Although it is well settled by numerous decision of this Court as well as of the Apex Court that no appointment on compassionate ground be made after lapse of long time but in the present case it has to be examined whether on any kind of lapse,(long delay in appointment) may be, on the part of the respondents the appointment on compassionate ground can not be made. I am afraid that if the long lapse of time irrespective of lapse on whose part is taken into consideration for the purposes of ignoring the appointment on compassionate ground then it would lead to in justice as in each and every case the respondents may cause delay in considering the appointment on compassionate ground and then come with the case that long delay has occurred, therefore, it cannot be said that family is still in financial crunch and no appointment on compassionate ground be offered to the Dependant of the deceased.

It is noticeable that this kind of appointment is offered to a person in exception of normal mode of recruitment of service. This is special kind of benefit extended by the ( legislator) employer in favour of the Dependants of the deceased employee who had been serving in the department with the utmost devotion and contributed in the smooth working of the department. Like the duty of the disciplined parent to their Dependants the employers are also supposed to behave/act, quickly, promptly and softly with the Dependants of the deceased of their own department within four corner of law, where a person seeking appointment is in crisis after the death of the employee. Their act has to be transparent reasonable and prompt while considering this kind of matter. Otherwise the purpose of the legislature will be defeated. To my mind every care and caution as required under law has to be weighed and followed in its true prospective promptly without any delay.

While considering the aspect of long lapse of time, it has to be seen that during this long time how the family has survived. The distress, the pain, the misery and the mental agony which the family has faced during this time has also to be weighed by the authorities particularly in the circumstances where the lapse is on their part. Mere survival for a long time is not sufficient for the purposes of ignoring the appointment under dying-in-harness Rules. The survival is the law of nature, a person will survive irrespective of the fact whether he is employed or not. It is very often said that time and tide wait for none, it will pass away in its own way. There are many persons who are not in employment and without means even then they are surviving. To my mind, while considering this type of a problem the paramount consideration should be the following of law in its true, letters and spirit meaning thereby the quick and prompt steps has to be taken by the responsible persons under the Rules while considering the appointment under dying-in-harness rule. The delay in considering such appointment will defeat the purpose of the Rule and put the family of deceased in distress which is not the spirit of Rule and intention of the legislature ( the maker of the Rule).

Keeping the settled law on the point, the point no.4 is also answered in negative.

In view of the forgoing discussion, the writ petition succeeds and is allowed. The respondents are directed to consider the petitioner's case within a period of two months from the date of the receipt a certified copy of this order. The petitioner is also at liberty to file another application along with complete details, in view of the Rules 6 of the Rules of 1974.

However, I would like to observe, keeping in mind the stand of the respondents in not considering the case of the petitioner for compassionate appointment on the ground that the application was not on a proper format, that the State Government should prescribe a standard formate in view of Rule 6 of the Rules of 1974 for all the departments under the State Government dealing with an application for appointment on compassionate ground under the Rules of 1974, so that the cases relating to appointment on the compassionate ground which needs immediate consideration, may not linger for indefinite period as has been done in the present case.

Copy of this judgement be supplied to the learned Chief Standing Counsel free of cost for its communication to the Chief Secretary of State of Uttar Pradesh.

Order Date :- 9.9.2011

Sharad