Raghvendra Pratap Singh vs State Of U.P. And 3 Ors.
2015 Latest Caselaw 1829 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 28
 
Case :- WRIT - A No. - 21246 of 2015
 
Petitioner :- Raghvendra Pratap Singh
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- S.K. Pandey,R.K. Dubey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard rival submissions and perused the record.

By means of present writ petition, the petitioner has prayed for quashing the order dated 18.02.2015 passed by respondent no.3 (Joint Secretary, U.P. Government, Lucknow) and the order dated 17.3.2015 passed by respondent no.4 (Superintendent of Police, Railway, Allahabad) and further prayed for direction to the respondents to consider the claim of the petitioner for the appointment on compassionate ground on account of death his father Shri Gulab Singh on dying-in-harness in place of her mother Sushila Singh.

It appears from the record that late Shri Gulab Singh (father of the petitioner) was working as Constable in Government Railway Police and died-in-harness on 4.5.1994.  After his death his wife namely Smt. Sushila Singh made claim before the authorities for consideration of her claim regarding compassionate appointment and release of gratuity, fund etc. It is averred that the same were not given to her as she was made accused in the murder of her husband Shri Gulab Singh.  Finally she approached this Court by means of Writ Petition No.7638 of 1995 (Smt. Sushila Singh v. State of U.P. & Ors.).  The said writ petition was allowed vide order dated 23.2.1998 with direction to the respondents for release of service benefit of her late husband Shri Gulab Singh and also consider her claim for compassionate appointment on Class-IV post.  In compliance thereof the respondents had released the gratuity and fund as well as fixed the family pension but compassionate appointment had been denied and filed Special Appeal No.1384 of 2009.  The appellate court vide order dated 9.9.2014 had allowed the special appeal with following observations:-

"Considering the entire facts and circumstances, it is quite clear to us that the impugned order was passed by the writ court on sympathetic and humanitarian grounds in ignorance of the pendency of the criminal case against the respondent about murder of her own husband. Such an appointment would not only be legally not sustainable but would also be against public policy so long as the respondent is not acquitted in the trial. Moreover, now after 15 years of the passing of the impugned order and considering the fact that respondent has now reached an age of 50 years it appears to us that the writ petition filed by the respondent has lost its efficacy and in this view the impugned order deserves to be set aside. However, considering the entire facts and circumstances, we feel that the matter still needs a sympathetic and humanitarian consideration for which a direction needs to given to the respondents to consider the respondent's son for compassionate appointment in place of respondent for the reason of his becoming now eligible and the family of respondent still living in acute financial crisis and also for the reason that Smt. Susheela Singh who had been considered for appointment on compassionate ground could not be appointed due to criminal case. The next dependent of the deceased employee may be considered by the appellants for appointment on compassionate grounds.

In view of above, we set aside the impugned order and allow the appeal with a direction to the appellants to consider the case of respondent's son, Raghuvendra Pratap Singh for appointment on compassionate ground in place of respondent on account of deceased Gulab Singh dying in harness. It will be open for the respondent to get an appropriate application moved in this regard to the appellants within six weeks of this order. In case such an application is moved the same shall be considered and decided by the appellants within next two months by a reasoned and speaking order in accordance with law, needless to say that order shall be passed keeping the object and spirit of compassionate appointment in mind in the light of directions given herein above.

The impugned order is accordingly set aside and the appeal is allowed subject to aforesaid directions. No order as to costs."

The appellate court while allowing the appeal had directed the appellants (respondents herein) to consider the case of the respondent's  son namely Raghvendra Pratap Singh (the petitioner) for appointment on compassionate ground in place of deceased Gulab Singh under dying-in-harness rules. It had also been observed that as the mother of the petitioner had attained the age of 50 years and meanwhile 15 years have also passed, she could not be given the employment.  But at the same time it is also observed that the case of the petitioner may be considered.  In compliance of the judgment the present impugned order had been passed. The petitioner's mother was also compelled to file contempt application in which an order has been passed in  her favour but inspite of this the claim of the petitioner for compassionate appointment was rejected.

Shri Pankaj Rai appearing for the respondents has defended the order impugned stating that the compassionate appointment is not hereditary right.  The father of the petitioner had died on 4.5.1994 and the petitioner had become major on 14.7.2009 after about 15 years of the date of death of his father.  He has made application for compassionate appointment on 30.09.2014 after about 20 years of the date of his father and as such at this belated stage he cannot claim compassionate appointment.  While passing the impugned order the respondents had taken a precise ground that the father of the petitioner died on 4.5.1994 and as such 20 years have lapsed, therefore, at this stage on the basis of law laid down in Umesh Kumar Nagpal v. State of Haryana & Ors. [1994] SCC (L&S) 930 the claim of the petitioner for compassionate employment could not be sustained.   

The facts of the case prick the conscience of the Court specially under the background that the mother of the petitioner was accused in the murder of her husband late Shri Gulab Singh and initially the claim for her compassionate appointment and other monetary benefits had been denied to her on the ground of implication in the murder  of her husband.  He was murdered by some unknown persons but unfortunately the allegations of murder were levelled against the mother of the petitioner. The trial was pending for considerable long time but ultimately she had been acquitted honourably in Sessions Trial No.358 of 1994 by the Addl. District and Sessions Judge, Court No.6, Kanpur Nagar on 24.11.2014. The acquittal order has also been brought on record. 

It is also relevant to indicate that the appellate court while allowing the special appeal even though at that point of time the mother of the petitioner had not been acquitted, keeping the equity in favour of the petitioner, had passed an order by which a direction was issued to the respondents to consider the claim of the petitioner for compassionate appointment.  It is also apparent from the record that while allowing the appeal the appellate court was conscious enough that considerable time has lapsed in between but inspite of this fact that the mother of the petitioner had not been acquitted at that point of time, the appellate court had directed for consideration of the appointment of the petitioner on compassionate ground in place of her mother. Therefore, at this stage taking the view that substantial time has lapsed in between  and  on the basis of law laid down by Hon'ble the Apex Court Umesh Kumar Nagpal v. State of Haryana & Ors. (Supra) the claim of the petitioner cannot be considered, cannot be sustained.

The records clearly indicate to this Court that earlier Writ Petition No.7638 of 1995  was filed by the mother of the petitioner, which was allowed on 23.2.1998 with direction to give her compassionate appointment on Class-IV post.  The respondents did not comply with the same and preferred Special Appeal No.1384 of 2009, which was also allowed on 9.9.2014 with specific observation and direction for consideration of the claim of the petitioner instead of her mother for compassionate appointment.  Therefore, at this stage, the respondents cannot take plea that substantial time has lapsed in between, therefore, on this ground the claim cannot be rejected.

The respondent authorities are not empowered to substitute their own view over the judgment of the Division Bench.  Either the respondent authorities should challenge this point before the Division Bench, or they should file recall application, or they should approach Hon'ble the Apex Court in this regard.  But as the respondents have not adopted any of the aforesaid step and has not filed any appeal against the aforesaid judgment of the Division Bench, it is binding on the respondent authorities and they cannot substitute their own view over it. Every case has its own facts and circumstances.  In this case the mother of the petitioner has sufferred double jeopardy.  Her husband was not only murdered but she was also falsely implicated in the murder of her husband. Her husband was murdered on 4.5.1994 and she was honorably acquitted on 24.11.2014.  It has shaken the conscience of the Court that how she could have maintained her family and proved her innocent in the criminal case for the murder of her own husband.  The Division Bench considering the facts and circumstances of the case and extreme difficulty faced by the mother of the petitioner taken a sympathetic view and directed the compassionate appointment of the petitioner. Non-compliance of the order of the Division Bench without being raised before Hon'ble the Apex Court can be said to be contemptuous and it is not open to the respondents to defy the same.

In view of the aforesaid facts and circumstances, the writ petition is allowed. The impugned orders are set aside. At this stage it would not be appropriate to remand the matter for fresh consideration.  This Court, in the interest of justice, is of the considered view that the respondents should follow the judgment of the Division Bench of this Court dated 9.9.2014 as it has attained finality without being raised before Hon'ble the Apex Court by the respondents.  A mandamus is issued to the respondents to ensure that the petitioner may be given compassionate appointment strictly as per his educational qualification within two months from the date of production of certified copy of this order. 

(Mahesh Chandra Tripathi,J.)

Order Date :- 17.8.2015

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