Gaurav Kumar vs State Of U.P. & Another
2014 Latest Caselaw 8381 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 59
 
 A.F.R.
 
Case :- WRIT - A No. - 3536 of 2014
 

 
Petitioner :- Gaurav Kumar
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- S.K. Tyagi
 
Counsel for Respondent :- C.S.C.,Manish Goyal,Rajeev Gupta
 

 

 
Hon'ble Rajan Roy,J.

Heard Sri Tyagi, learned counsel for the petitioner, Sri Ashish Misra, learned counsel for respondents 2 and 3 and learned Standing Counsel for State.

The father of the petitioner died in harness on 1.4.2013. He was a permanent Class IV employee in the judgeship of Muzaffarnagar. He left behind his wife, two daughters and one son i.e. the petitioner. One of the daughter was married prior to his death, therefore, she was not his dependent. The petitioner herein being eldest child/son submitted application for compassionate appointment to the District Judge on 27.5.2013, whereupon a report was called from the Administrative Committee of the judgeship. The said report  was submitted to the District Judge on 23.8.2013. The committee did not find the petitioner in need of compassionate appointment  considering the financial condition of the family. It took note of the fact that an amount of Rs.11.00 Lakh was given to the family as post retiral-cum-death benefit subsequent to the death of the deceased. In addition to the said amount the family pension of Rs.9,000/= per months was being paid to the widow. Further the committee found that the family members own 3.5 Bigha of land allegedly situated in market are  near Hapur-Delhi Highway.  One of the factor considered by the committee was the past conduct of the deceased which according to them was not upto mark as he was visited with several punishments during his career.

The committee referred to various decisions of the Supreme Court and this Court and considering the financial condition of the family recommended to the District Judge that the petitioner is not eligible/entitled  for being provided compassionate appointment as per the provisions contained in U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974.

Based on the report of the Administrative Committee the District Judge, Muzaffarnagar passed the impugned order dated 31.8.2013 declining the claim of the petitioner for compassionate appointment reiterating the same reasons as were mentioned in the report of the Administrative Committee.

Being aggrieved this writ petition has been filed by the petitioner.

The contention of the learned counsel for the petitioner is that his father Chatar Singh was suffering from Hepatitis, heard ailment etc.  and was under continuous treatment at New Delhi Hospital from 2009-2013.Learned counsel for the petitioner also invited the attention of the court to various medical prescriptions and other documents relating to the treatment of the deceased for Hepatitis and other ailments. The family incurred huge expenditure for the said treatment and also took loans for the said purpose. The contention is that the amount received after the death of his father was spent in repaying the loans, therefore, the Administrative Committee and the District Judge erred in taking into consideration the post retiral-cum-death benefits paid to the family.  He further contended that the District Judge ought to have given an opportunity of hearing to the petitioner before passing the impugned order to enable him to explain the financial condition of the family in the light of the objections raised by the Administrative Committee and by not doing so great prejudice has been caused to him thereby, vitiating the impugned order. 

Learned counsel further contended that the land of 3.5 Bigha is neither situated near the Hapur-Delhi Highway nor is it  situated in a market place. In fact it is situated about 5.00 Km. away from the highway and is an agriculture land. He further submits that the land measures 3.5 Kachcha Bigha and not Pacca Bigha.  In this respect he relied upon the report of the Tahsildar based on the circle rates prevailing in the area to contend that the value of the said land was of Rs.7-8 Lakh  and not Rs.30.00 Lakh as mentioned in the report of the Administrative Committee.

He further contended that the Administrative Committee  erred in taking into consideration the past conduct of the deceased for denying the claim of compassionate appointment. In this regard he placed reliance upon the judgment of this Court reported in 2008(1) ADJ 425 (Rajesh Kumar Versus General Manager, Allahabad Bank and others.

It was vehemently argued by the learned counsel for the petitioner that if an adverse report was submitted by the Administrative Committee the same should have been served upon the petitioner with an opportunity to him to present his case in rebuttal  but it was not done by the District Judge, instead, he passed the impugned order, which is not sustainable.

On the other hand Sri Ashish Misra, learned counsel for respondents 2 and 3, relying upon the judgment of the Supreme Court reported in (2012)11 SCC 307 (Union of India Vs. Shashank Goswami and another) and Full Bench judgment of this Court dated 6.2.2014 passed in Special Appeal No. 356 of 2012 ( Shiv Kumar Dubey Vs. State of U.P. and others ) submits that the object to provide compassionate appointment is to enable the dependent family members to tide over the immediate financial crisis, therefore, the financial condition of the family is necessarily required to be assessed in order to ascertain the need for providing such employment to any of the dependent. It is also necessary in view of the provisions contained in Rules of 1974. In this regard he referred to the provisions contained in Rule 5 and 6 of the Rules, 1974.

In view of the financial benefits extended to the family members consequent to the death of the deceased including about Rs.11.00 Lakh as lump-sum payment and about Rs.9,000/= per month as family pension and also in view of the fact that the family owns a  residential house as well as 3.5 Bigha of land,  it cannot be said that the financial condition of the family is such as to require immediate redress by way of providing compassionate appointment.  Learned counsel further contended that the value of 3.5 Bigha land even as per the report of the Tahsilar relied upon by the petitioner,  was about 40.00 lakh.The family cannot be said to be in immediate financial crisis.

In rejoinder, Sri Tyagi submits that the dependents of the deceased own only 3.5 Bigha land . The other holdings mentioned in the report of the Tahsildar is of other co-tenure holders i.e. uncle etc. who live separately. Sri Tyagi reiterates the arguments already advanced earlier.

I have the learned counsel for the parties and perused the records..

I find merit in the contention of learned counsel for the petitioner Sri Tyagi that after submission of adverse report by the Administrative Committee regarding financial condition of the family, the District Judge should have confronted the petitioner with the same and should have given an opportunity to submit his reply in rebuttal of the said report, only then the correct and true picture of the financial condition of the  family would have come out, as, the petitioner contends that huge amount of money was spent by the family on the treatment of the deceased from 2009-2013, for which it is alleged that loans were also taken. Moreover this opportunity was also necessary in view of the dispute regarding the value of 3.5 Bigha of land, which could have been explained by the petitioner had he been given an opportunity in this regard.

So far as the consideration of past conduct of the deceased is concerned in my view that is not at all  relevant .  Even the Rules of 1974 do not enjoin upon the concerned authority to look into the past conduct/service  record of the deceased, therefore, clearly the Administrative Committee and District Judge erred in taking into consideration the aforesaid aspect of the matter.

In view of the above discussion, as, no opportunity was given to the petitioner to rebut the report of the Administrative Committee before passing the impugned order, the same is quashed only on this ground, leaving all other pleas open for reconsideration by the District Judge by passing a fresh order after giving opportunity to the petitioner and providing him a copy of the report of the Administrative Committee  in the light of the discussions made herein above. This exercise shall be done by the District Judge within a period of three months from the date a certified copy of this order is produced before him.

Before parting, it is necessary to deal with another aspect of the matter .

No doubt ascertainment of financial condition of the dependents of deceased  is mandatory before providing compassionate appointment. It is also necessary as per the provisions contained in Rule 5(3) read with Rule 6 of the Rules, 1974, however, in what manner the financial condition of the family is to be assessed has not been laid down in the Rules of 1974. None of the parties have placed before the Court any Government Order wherein parameters may have been laid down by the State Government based on which financial condition is to be assessed for the purpose of compassionate appointment under Rules of 1974. No doubt the Full Bench decision of this Court  in case of Shiv Kumar Dubey lays down principles which have to be followed in the matter of compassionate appointment but these are also general principles laid down by it. The terminal benefits received by the family is one of the consideration but the Full Bench decision does not lay down the specific parameters for doing so.

In the case cited by learned counsel for the respondents reported in (2012)11 SCC 307, the circular of the Comptroller and Auditor General of India dated 19.2.2003 has been referred  which appears "to have been issued '"to bring uniformity in the offices regarding parameter for compassionate appointment of a family member in the case of death of a government servant in harness". Accordingly, by the said circular ceiling limits have been prescribed. In addition to fulfilment of other conditions for Group B  ceiling of Rs.5.00 lakh, for Group C Rs. 3.00 lakh and for Group D Rs.2.00 lakh were prescribed. The case of the aggrieved parties therein was rejected on the ground that terminal benefits excluding G.P.F. to the tune of Rs.4,50,000/=.  Thus if a government servant received terminal benefit above the ceiling limit he was not liable for any compassionate appointment. The said rejection was upheld by the Supreme Court in view of the ceiling limit prescribed in the above mentioned circular. 

In the State of U.P. no specific parameters have been laid down by the government for determining the financial condition of the dependents/family of the deceased nor for ascertaining the eligibility based thereon, nor any ceiling appears to have been prescribed as has been done in the aforesaid case, thus,  each appointing authority is left to himself to determine the financial condition of the family and based thereon the entitlement of the dependents of the deceased for  the purpose of compassionate appointment under the Rules of 1974.

In the present case the fact that the widow was receiving Rs.9,000/= per months as family pension is one of the grounds on which compassionate appointment has been declined.

In view of the above, it would be appropriate for the State Government, exercising its powers under Rule 10 of the Rules of 1974, to consider issuing a Government Order to fill up the vacuum in the Rules of 1974 in this regard or to amend the Rules of 1974, and lay down specific parameters for ascertaining the financial condition of the family  and the eligibility /entitlement of the dependents of deceased employees based thereon, as referred above, so as to bring about uniformity, certainty  in the matter, to avoid the possibility of discrimination and unfair treatment.

In the absence of such parameters each appointing authority is left to his sweet will to decide  not only the financial condition of the family but also the entitlement of the dependents based thereon, which can lead to a very unhappy situation as similarly situated persons can be dealt differently which will neither be justified nor reasonable.

In the circumstances, I issue a writ of mandamus commanding the Government of U.P. viz. respondent no. 1  as also the Principal Secretary Appointment, Principal Secretary Kamik Government of U.P. to consider the matter regarding prescribing of specific parameters as mentioned above, for the purpose of compassionate appointment under  Rules of 1974 in the light of the above discussion and take a decision in this regard within a period of six months form the date a certified copy of this order is produced, keeping in mind similar circulars relating to compassionate appointment issued by the Government of India and such other employers, as it may deem fit.

Learned Standing Counsel Sri Harish Chandra Pathak shall communicate this judgment to the respondent no. 1 as well as to the Principal Secretary Appointment, Principal Secretary Karmik , Government of U.P. for necessary compliance..

A copy of this judgment be provided to the office of the Chief Standing Counsel free of cost.

Subject to the above, writ petition is allowed.

Order Date :- 13.11.2014

M.A.A.