Smt. Asha Rani vs State Of U.P. And Others
2012 Latest Caselaw 1442 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
										Reserved
 

 
Case :- WRIT - A No. - 51944 of 2006
 

 
Petitioner :- Smt. Asha Rani
 
Respondent :- State Of U.P. And Others

Petitioner Counsel :- Jagdish Pathak,Sanjay K. Sharma

Respondent Counsel :- C.S.C.,Nripendra Mishra

Hon'ble Sabhajeet Yadav.

Heard learned counsel for the parties.

2. By this petition, the petitioner has sought initially a writ of mandamus commanding the respondents to give her compassionate appointment in place of her husband Shyam Veer Singh under Dying-in-harness Rules. But subsequently a writ of certiorari for quashing the order dated 27.6.2006 passed by Assistant General Manager of Corporation contained in Annexure-CA-2 of the counter affidavit and Annexure-1 of the supplementary affidavit filed in support of amendment application, whereby the petitioner's claim for compassionate appointment has been rejected, is also sought for.

3. The relief sought in the writ petition rests on facts that the husband of petitioner Late Shyam Veer Singh while working as Messenger/Sandesh Wahak in the District Office of Food Corporation of India, Moradabad has died on 11.10.2002 while in service. He left behind him the petitioner as widow and his three daughters and two sons i.e. Sri Anil Kumar Singh and Sri Amit Kumar Singh as his heirs and also his old and sick mother. It is stated that both two sons of petitioner are still unemployed and the family of the petitioner is totally on the verge of starvation as no body in the family is earning hand and there is no money for the treatment of the old mother of her late husband. After the death of Shyam Veer Singh the petitioner gave her consent for compassionate appointment of her son Amit Kumar Singh under Dying-in-harness Rules and as such an application was made for such appointment on behalf of her aforesaid son on 26.12.2002 as class IV employee in the department. Later on under frustration, the conduct of Amit Kumar Singh towards the family and the petitioner became very bad and he indulged in bad activities as he was not appointed under dying in harness rules by the respondent. At this point of time the petitioner realized that even if the son of the petitioner gets compassionate appointment in place of her husband, the sole purpose of providing such appointment will not be fulfilled as her son was no more loyal to the family as well as to the petitioner and as such the family of the deceased will not be benefited on such appointment. Then the petitioner gave application dated 23.8.2004 for her own appointment to the respondent no.2 in place of her late husband. A photostat copy of such application dated 23.8.2004 is on record as Annexure-1 to the writ petition.

4. It is further stated that the forms and application of the petitioner was forwarded to the respondent no.1 by the Assistant Manager (Pension) Food Corporation of India, Moradabad. Thereafter the petitioner gave several reminders regarding her pity condition to the respondents but nothing was done and ultimately vide letter dated 22.2.2005 of respondent the petitioner was told that since no vacancy is available at that time so her case can not be considered at present but as and when the vacancy will arise she will be considered for such appointment. The aforesaid letter of respondent dated 22.2.2005 is on record as Annexure-5 to the writ petition. It is further stated that when nothing was done in the matter the petitioner has again sent reminder/representations dated 8.4.2005, 17.1.2006, 8.4.2006 and 22.7.2006 collectively contained in Annexure- 7 to the writ petition. As nothing has been done by the respondent, she moved this petition before this court seeking aforesaid relief.

5. A counter affidavit has been filed on behalf of respondents stating that under relevant scheme applicable to the employees of the Corporation only 5% of the vacancies meant for direct recruitment could be available for compassionate appointment. In the year 2000-2001 no compassionate appointment was made for want of vacancy. In the counter affidavit the scheme of compassionate appointment of Government of India contained in office memo dated 5.5.2003 has been filed as Annexure-CA-1, which provides that no request for compassionate appointment can be considered if it has not already acted upon within three years. Since the vacancy for compassionate appointment did not occur for three years, therefore, claim of petitioner was not considered. The petitioner was informed by letter dated 27th June, 2006 that she fulfilled qualification and eligibility for Class IV post but due to non availability of vacancy her case could not be considered for compassionate appointment. The aforesaid letter dated 27.6.2006 has been filed as Annexure-CA-2 to the aforesaid counter affidavit.

6. After going through the aforesaid version of the parties Hon'ble Mr. Justice Sudhir Agarwal has been pleased to dismiss the writ petition on 23.11.2010 with the following observations:-

" 5. It is well settled that compassionate appointment can be allowed strictly under the scheme applicable to the Corporation. It is not the case of the petitioner in the rejoinder affidavit or otherwise that the scheme, said to be applicable to the respondents-Corporation, is not in the manner, as stated by the respondents, but otherwise.

6. Since the appointment of the petitioner could not be made within the prescribed period of three years for want of vacancy, and further that the scheme provided that no such request can be considered, I do not find that the act of the respondents in any manner is contrary to the scheme for compassionate appointment.

7. I, therefore, find no error apparent on the face of the record or in the act of the respondents warranting any interference.

8. Dismissed.

9. Interim order, if any, stands vacated."

7. Feeling aggrieved against the aforesaid order dated 23.11.2010 the petitioner preferred special appeal before this Court which was numbered as Special Appeal No.13 of 2011 Smt. Asha Rani Vs. State of U.P. and others. A Division Bench of this Court has been pleased to set aside the judgment of Hon'ble Single Judge and remitted the matter back to the learned Single Judge with direction to consider the scope and ambit of elaborate judgement in the matter of Hari Ram Vs. Food Corporation of India and others reported in 2009 (2) LBESR 482 (Alld). It would be useful to quote the relevant observations made by division Bench of this Court as under:-

"We have gone through an elaborate judgment dated 08.04.09, Hari Ram Vs. Food Corporation of India & others passed in Civil Misc. Writ Petition No.2412 of 2008 from which it appears that the learned single Judge considered the scheme as harsh in nature and ultimately quashed the instructions contained in the Office Memorandum dated 5th May, 2003 of the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India fixing time limit of three years for offering compassionate appointment declaring it to be irrational, arbitrary, unreasonable and violative of Art. 14 and 16 of the Constitution of India.

We have been told that no appeal has been preferred against such order atleast not to the knowledge of the learned counsel appearing for the appellant. If it is so, it would be proper for the learned single Judge to consider this aspect upon being called. Since the consideration of such part was not available before the learned single Judge, we are of the view that the order impugned should be set aside, and is accordingly set aside, remitting the matter back to the learned single Judge to consider scope and ambit of the elaborate judgment in the matter of Hari Ram (supra).

Accordingly the appeal is disposed of at the stage of admission, however, without imposing any cost."

8. Thereafter the matter came to be listed before this Court on 20.4.2012. Since counter and rejoinder affidavits have been exchanged between the parties and the case was ripe for final disposal, therefore, learned counsel appearing for the parties agreed for final disposal of the case and advanced their arguments for final disposal of the case.

9. I have considered the submissions of learned counsel for the parties, perused the record and have gone through the decision rendered by Division Bench of this Court in special appeal filed by the petitioner and reported decision rendered by Hon'ble Single Judge in Hari Ram's case (supra).

10. In Hari Ram Vs. Food Corporation of India through its Executive Director, Noida & others, 2009(2) LBESR 482 (All), Hon'ble Single Judge of this court while considering the rationality of instructions contained in Office Memo dated 5.5.2003 of Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India fixing time limit of three years for offering compassionate appointment has held that fixing time limit for three years for offering such compassionate appointment is irrational, arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India. The pertinent observations made by this court in aforesaid decision contained in para 13,14,15,16,18 and 19 are extracted as under:-

"13. The prescription of 5% quota of the direct recruitment for compassionate appointment falls within the domain of the policy adopted by the Government of India. The court will not ordinarily interfere with such policy unless it is wholly arbitrary and unreasonable. The policy is reasonable and adopted to balance with the rights of unemployed men and women and is thus not violative of Articles 14 and 16 of the Constitution of India.

14. The maximum limit of three years, however, does not appear to be reasonable to the object of providing the compassionate appointment. The Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India by its Office Memo randum dated 5th May, 2003, decided that with one year limit prescribed for grant of compassionate appointment often results in depriving genuine cases seeking compassionate appointment, on account of regular vacancies not being available within the prescribed period of one year and within the prescribed limit of ceiling of 5% DR quota, and it was, therefore, decided that if compassionate appointment to genuine and deserving case as per guidelines contained in the Officer Memorandum dated December 3rd, 1999 is not possible in the first year, due to non-availability of regular vacancy, the Prescribed Committee may review such case, to evaluate the financial condition of the family to arrive at a decision as to whether a particular case warrants extension of one more year for consideration for compassionate appointment by the committee, subject to availability of clear vacancy within the prescribed 5% quota. The Office Memorandum provides that if on scrutiny by the Committee a case is considered to be deserving, the name of such a person can be continued for consideration for one more year and that maximum time in para 3, for persons' name can be kept under consideration for offering compassionate appointment will be three years, subject to the condition that Prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed and will not be considered again.

15. It does not appear to be reasonable that if a case of a person is certified by the Prescribed Committee, after a review, in which the Committee finds that the condition of the applicant's family continues to be penurious, the case should be closed on the expiry of three years. It may not only be arbitrary but will also cause injustice to the person, who has been certified to deserve compassionate appointment.

16. It is always possible as in the present case that the family of the dependent is found to be living in a financial distress and that family needs compassionate appointment, the person may not fall within 5% DR quota for three continuous years. It will be extremely unjust and harsh to deny compassionate appointment in such case. The restriction of number of vacancies to be made available in 5% DR and then confining it to three years, makes the entire exercise of offering compassionate appointment, a matter of chance and thereby in ignorance of the object for which such appointment is offered and makes the whole policy irrational.

18. In this case the placement in the waiting list for 5% DR quota has not been shown to be based on the penurious condition of the family of the deceased employee. His first and second review by the Prescribed Committee confirms that the application still needs and falls within the category of the family, which are in financial distress. Inspite of such verification, the prescription of maximum period of three years for compassionate appointment may result into grant of appointment after long delay, but has no object to be achieved except by permitting the family to continue to live under poverty, whereas new cases may be considered on their own merits in the first, second and third years.

19. In my opinion the prescription of maximum period of three years after verification by the Prescribed Committee of the penurious condition of the dependents of the deceased is highly irrational and unreasonable. The compassionate appointment should not be kept in the realm of a chance and to become a gaming exercise subject to the availability of vacancies and the maximum number of years it should be based on human and sympathetic consideration to the family of the deceased employee. Each case should be reviewed on its own merit and consideration should not be allowed to any number of years. If the family continues to be under financial distress, there should be no limit of maximum number of years for which an application may be considered."

11. At this juncture it is to be noted that in Director of Education (Secondary) Vs. Pushpendra Kumar, 1998 (5) SCC 192 = AIR 1998 SC 2230, once the Apex Court has held that the compassionate appointment should be offered only against the vacancies of Class III and Class IV posts liable to be filled up through direct recruitment then it should not have been confined again within the ceiling limit of 5% of such vacancies for the reason that allocation of merely 5% vacancies of direct recruitment quota for compassionate appointment does not provide sufficient opportunity to the dependent of deceased government servant, instead thereof it provides a mere chance of employment. Therefore, such policy fixing 5% vacancies of direct recruitment for the purpose of compassionate appointment can also be held to be arbitrary, irrational, unreasonable and contrary to the main object of compassionate appointment under Dying-in-Harness Rules but since Hon'ble Single Judge of this Court has declared the aforesaid aspect of Office Memo dated 5.5.2003 as reasonable in Hari Ram's case (supra), therefore, I am not inclined to refer the issue for consideration to the larger Bench and I would like to accept the verdict of this Court in Hari Ram's case as referring the matter to the larger Bench in instant case would further prolong the litigation and since the death of government servant has taken place in the year 2002 and a period of about more than nine years have passed, therefore, any further delay in the matter would cause prejudice to the case of petitioner.

12. In this connection, it would be useful to refer a Division Bench decision of this Court rendered in Vivek Yadav Vs. State of U.P. and others, 2010 (7) ADJ Page 1 wherein while considering the content and import of proviso to Rule-5(1) of U.P. Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974 in respect of extension of time for making application for compassionate appointment beyond the period of 5 years fixed for making such application after the death of Government servant in para 7 and 8 of the decision it has been held that power to relax itself contemplates that in a particular case, the matter has to be dealt with in a just and equitable manner. In other words, the test to be applied is does the family of the deceased continue to suffer financial distress and hardship occasioned by death of breadwinner so as to relax the period within which the application could be made. For ready reference the pertinent observations made by this Court in aforesaid para are quoted as under:-

"7. ........ The proviso, in our opinion, which confers power to relax the delay in making an application within five years, also must be read to include consideration of an application even after expiry of 5 years if the applicant was a minor at the time of death of the deceased employee and makes an application within reasonable time of attaining majority.

8. The power to relax itself contemplates that in a particular case, the matter has to be dealt with in a just and equitable manner. In other words, the test to be applied is does the family of the deceased continue to suffer financial distress and hardship occasioned by the death of the breadwinner so as to relax the period within which the application could be made. These are matters of fact, which the competent authority would have to consider. In the instant case, what we find is that the application was rejected merely because it was beyond the time prescribed."

13. In view of law laid down by this court in Hari Ram's case and Vivek Yadav's cases the concerned authorities are required to consider each case on its merit and consideration should not be allowed to any number of years. If the family of the deceased employee continues to be under financial distress and hardship, there should be no limit of maximum number of years under which an application may be considered. In instant case, since the authority concerned has rejected the application of petitioner for compassionate appointment on account of lapse of a period of more than three years from the date of death of Shyam Veer Singh without further considering the case of applicant on merit as to whether the family of deceased employee is continuously facing financial distress and hardship occasioned by death of deceased employee of corporation and whether the family can not be relieved from such financial distress and hardship without offering compassionate appointment to the applicant, therefore, the impugned order dated 27th January 2006 passed by Assistant General Manager, contained in Annexure S.A.-1 of Amendment Application and also as Annexure C.A.-2 to the counter affidavit cannot be sustained. Accordingly the same is hereby quashed.

14. The Authority concerned is directed to consider the case of petitioner on merit and while considering so the competent authority shall examine as to whether the family of deceased employee continues to be under financial distress and hardship and the family of deceased employee cannot be relieved from such financial hardship and distress unless the compassionate appointment is offered to the petitioner. It is needless to say that while taking such decision the competent authority shall pass reasoned and speaking order. Such exercise shall be completed within a period of two months from the date of production of certified copy of the order passed by this court before competent authority.

15. With the aforesaid observations and directions, writ petition succeeds and is allowed to the extent indicated herein before.

Date: 08.05.2012

LJ/-