Vishal Srivastava vs State Of U.P. Thru' Secry./ ...
2013 Latest Caselaw 6676 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- WRIT - A No. - 58418 of 2013
 

 
Petitioner :- Vishal Srivastava
 
Respondent :- State Of U.P. Thru' Secry./ Commissioner And 2 Others

Counsel for Petitioner :- Kamal Dev Rai

Counsel for Respondent :- C.S.C.

Hon'ble Sudhir Agarwal. J.

1. Heard learned counsel for parties and perused the record.

2. Petitioner's claim for compassionate appointment has been rejected on the ground that the death of deceased employee took place in 17.3.1995 and after more than 17 years, there is no justification to provide compassionate appointment.

3. I do not find any irregularity or illegality in the view taken by the authorities concerned. It is well settled that if the family had sufficient means to carry on its affairs for long time, in such a case compassionate appointment cannot be made. The purpose of compassionate appointment is not to provide employment by succession but it is to meet immediate necessity arrived at due to sudden demise of sole bread earner of the family leaving the legal heirs in penury.

4. In Mumtaz Yunus Mulani Vs. State of Maharashtra & Ors, 2008(11) SCC 384 the Court held that now a well settled principle of law is that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or public sector undertakings is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over sudden financial crises.

5. The purpose of compassionate appointment is not for providing a post against post. It is not reservation in service by virtue of succession. If the family is not in penury and capable to maintain itself for a long time, no mandamus would be issued after a long time for providing compassionate appointment to a legal heir of the deceased employee. Recently in Santosh Kumar Dubey Vs. State of U.P. and others, JT 2009(8) SC 135 and M/s Eastern Coalfields Ltd. Vs. Anil Badyakar & Ors., JT 2009(6) SC 624 the Apex Court has declined to issue any mandamus after expiry of a long time. In Santosh Kumar Dubey (Supra) after considering the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Rules, 1974") the Apex Court said that if family of the deceased has been able to survive, after five years no mandamus or direction should be issued for giving compassionate appointment.

6. Learned counsel for petitioner, however, placed reliance on a decision of this Court in Pravesh Kumar Singh Vs. State of U.P. and others 2013 (31) LCD 674 wherein this Court has held that since there is a power of condonation of delay even if the application is moved after five years from the date of death, therefore whenever such an application is moved, it ought to be referred to State Government, since the power to condone the delay is vested in it and the application ought not to have been rejected by the appointing authority on its own unless and until the State Government has an occasion to apply its mind with regard to question as to whether the delay in filing the application should be condoned or not in exercise of its power under proviso to Rule 5 (1) of Rules, 1974.

7. As a proposition of law, there cannot be any exception of the fact that since there is a provision under Rule 5 of Rules, 1974, which empowers the State Government to relax the period of five years contemplated within which the dependent of deceased Government Servant should apply for compassionate appointment, but the said period cannot be relaxed provided it is satisfied that this time limit otherwise would cause undue hardship. The State Government's power of relaxation is with an object so that the case of the dependent may be considered in a just and equitable manner. This aspect has been considered by Apex Court also in Santosh Kumar Dubey (supra) and it has taken the view that if the family of deceased has been able to survive after five years for a long time, any mandamus or direction for compassionate appointment would frustrate the very objective and purpose of such appointment and that being so, the question of relaxation of period by itself would become otiose.

8. In fact, a Division Bench of this Court in Vivek Yadav Vs. State of U.P. and others 2010 (7) ADJ 1 (DB) also held that if the power of relaxation is there, the Government must apply its mind, but the condition precedent for relaxation is that the family of the deceased employee continued to suffer the penurious condition and financial distress. This decision has been considered recently by this Court in Civil Misc. Writ Petition No. 58401 of 2013 (Vishwadeep Singh Vs. State Of U.P. & 3 others) decided on 24.10.2013 and the ratio laid down therein has been highlighted in para 6 of the judgment as under:

"6. Learned Counsel for petitioner, however, placed reliance  on a Division Bench judgment of this Court in Vivek Yadav Vs. State of U.P. and others 2010 (7) ADJ 1 (DB) to show that mere fact that claim of compassionate appointment has been raised after more than five years by itself will not disentitle the legal heir of deceased employee from such appointment. Having gone through the aforesaid decision, however, I find that the wide amplitude sought to be given by learned counsel for petitioner to the said judgment is not correct. Therein it has been observed by the Court, if an application for compassionate appointment is not made since there was no eligible person to claim compassionate appointment in the family of the deceased and the child was minor, he can move such an application after attaining the majority, provided, the family of deceased, over long passage of time, continued to face hardship and this matter can be examined by the competent authority.  The Court therein found, as a matter of fact, that the widow of deceased employee was uneducated or illiterate and the son was minor. This Court further held that power to relax requirement of five years pre-supposes consideration of matter in a particular case in a just and equitable manner. The test to be applied is "does family of the deceased continued to suffer financial distress and hardship occasioned by the death of the bread earner so as to relax the period within which the application could be made."

9. In the present case, petitioner's father died on 17.3.1995. Petitioner date of birth being 25.1.1990, admittedly he was a little less than five years of age at the time of death of his father. The deceased employee left behind widow and two minor sons Vishal, i.e. the petitioner and Chhotu, who is younger than the petitioner. The widow never claimed any financial hardship, distress and penurious condition of the family for the purpose of seeking compassionate appointment and instead maintained herself and both minor children, managing them to undergo education and also the other things. In the affidavit of the widow, placed on record as Annexure 3 to the writ petition, she has not mentioned that the appointment she intend to be given to the petitioner is on account of penurious condition and financial hardship of the family, but she has expressed her desire that after the death of husband, she intended to seek appointment for her elder son Vishal Srivastava, i.e., the petitioner. Even in the application submitted by petitioner on 28.6.2012 seeking compassionate appointment (Annexure 2 to the writ petition), there is not even a whisper about the hardship, financial distress or penurious conditions of the family of deceased employee, who has died almost more that one and half decade back. Even in the entire writ petition, I do not find appropriate pleadings and material to show that the family of deceased employee throughout has suffered financial distress and hardship which is continuing even in 2012. It is in these facts and circumstances, the above decision cited in support of the writ petition, in my view does not help the petitioner for the reason that any other view would amount to treat the petitioner as if he has a right to hold a post reserved by way of succession after the death of his father to claim compassionate appointment irrespective of length of time and other relevant consideration. A reservation of post against post has consistently been condemned and deprecated by the Apex Court since it is contrary to concept of compassionate appointment. The view I am taking finds support from the language used in proviso to Rule 5 (1) of Rules, 1974. It may be noted that Rule 5, as it was initially framed, neither provided any period within which the application ought to have been submitted nor contain any power of relaxation with respect to such period. It, however, required that compassionate appointment shall be provided expeditiously and without any delay. This Rule 5 was amended by substitution vide U.P. Recruitment of Dependents of Government Servants Dying in Harness (Third Amendment) Rules, 1993 (hereinafter referred to as "Rules, 1993") published vide Notification dated 16.4.1993 and the substituted provision read as under:

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10. The proviso stressed on the words that relaxation has to be given in specific cases where undue hardship would cause on account of adherence to the provision relating to five years period within which the application ought to have been made. The language makes it very clear that the relaxation is not to be resorted lightly and frequently. The basic objective and purpose of compassionate appointment, therefore, has to be adhered. There is no scope for omission of this basic requirement that the family's sufferance on account of financial hardship etc. is continuing. When in a particular case, no ground or foundation is made out with respect to such financial distress, penurious condition etc., the question of invoking power under proviso to Rule 5 does not arise at all. In fact, the proviso at all would not be attracted in such case and denial of compassionate appointment in such case deserves to be sustained and would not be justified to be interfered by this Court.

11. In view of above discussion, I find no merit in the writ petition. Dismissed.

Dt. 29.10.2013

PS