Irfan Ansari vs State Of U.P. And 3 Others
2016 Latest Caselaw 5241 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 18
 

 
Case :- WRIT - A No. - 17824 of 2016
 

 
Petitioner :- Irfan Ansari
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shantanu Khare,Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri Mata Prasad, learned Additional Chief Standing Counsel assisted by Sri S.K. Mishra, learned Standing Counsel for the respondents.

The petitioner is seeking quashing of the order dated 16.3.2016 whereby his representation seeking appointment on compassionate ground has been rejected. The other order under challenge dated 10.2.2016 also rejects the petitioner's representation dated 23.9.2015 seeking compassionate appointment.

Brief facts of the case are that the petitioner is the son of Maqbool Ansari and his first wife Sarikunnisa. Smt. Sarikunnisa has been divorced from Maqbool Ansari through regular divorce proceedings by order of the Family Court, Gorakhpur dated 11.5.2001 which is not disputed. Maqbool Ansari thereafter married one Kahkasha Bano, who is employed as Urdu Translator in the District Treasury, Gorakhpur. Kahkasha Bano also has a child through Maqbool Ansari. Maqbool Ansari, who was working as Assistant Treasury Officer, Gorakhpur died on 30.12.2014 while still in service.  The petitioner applied for compassionate appointment on 6.1.2015 and when no order was being passed he filed Writ petition no.7921 of 2016 (Irfan Ansari Vs State of U.P. and others) which was disposed of by this Court by order dated 22.2.2016 with a direction to the respondents to consider the claim of the petitioner in accordance with law. Thereafter, the impugned orders have been passed rejecting the claim of the petitioner for appointment on compassionate grounds.

The reason given in the impugned order is that the petitioner's mother Smt. Sarikunnisa was divorced from Maqbool Ansari and thereafter, Maqbool Ansari married Kahkasha Bano, who is already in government service and therefore, compassionate appointment cannot be given to the petitioner as the petitioner is a part of the family of Kahkasha Bano. The respondents have made reference to the provisions of Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 (hereinafter referred to as the Rules, 1974) which provides that in case a Government Servant dies in harness after the commencement of these 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 purposes, be given a suitable employment in Government service on a post except that which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of normal recruitment rules.

Rule 5 reads as under:-

"5. Recruitment of a member of the family of the deceased.-(i) In case a Government Servant dies in harness after the commencement of these 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 purposes, 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 such person-

(i) fulfils the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and 

(iii) makes the application for employment within five years from the date of the death of the Government servant:

Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.

(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.

(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."

The submission of the learned standing counsel for the respondents is that since Smt. Sarikunnisa was divorced from late Maqbool Ansari therefore she can no longer be said to be the spouse and thereafter Maqbool Ansari married Kahkasha Bano who is the spouse and who is in government service prior to the death of Maqbool Ansari. It is on this ground that the claim of the petitioner has been rejected that Kahkasha Bano is a spouse and is in government service, therefore, another member of the family cannot be given appointment on compassionate ground.

Sri Siddharth Khare, learned counsel for the petitioner then submitted that in terms of the provisions of Sub Rule (3) of Rule 5, appointment can be given under Sub Rule (1) of Rule 5 on the condition that the person so appointed shall maintain the family of the deceased government servant and under Sub Rule (4), if it is found that such a person so appointed neglects or refuses to maintain a person whom he is liable to maintain under Sub Rule 3, his services can be terminated. In para 11 of the writ petition, it is stated that Kahkasha Bano is not supporting the petitioner or his immediate family in any manner whatsoever.

The provisions of Sub Rule (3) of Rule 5 of the Rules, 1974, in my opinion have no application to the facts of the present case as Smt Kahkasha Bano was already in service of the State Government when late Maqbool Ansari expired and she was not given appointment on compassionate ground. Therefore, the specific condition laid down in Sub Rule (3) would have no application to her. It is not disputed that the petitioner is member of the family of late Maqbool Ansari though he in the strict sense of the word, may not be said to be the member of the family of Smt. Kahkasha Bano. Sri Siddharth Khare submits that the petitioner being a son, is nevertheless a member of the family of late Maqbool Ansari and falls within the definition of 'Family' as defined in Sub Rule (c) of Rule 2 of the Rules, 1974. The fact that the petitioner is the son of late Maqbool Ansari and therefore, a member of his family is not disputed even by the respondents but that alone would not entitle him to claim appointment on compassionate ground in view of the mandatory language of Rule 5 Sub Rule (1) of the Rules, 1974.

The import of Sub Rule (1) of Rule 5 is that if the spouse of deceased government servant is already in service then appointment on compassionate ground may not be given to another member of the family. Therefore, considering the matter in the light of the facts of the present case and the specific provisions of the Rules, 1974, in my opinion, there is no illegality or infirmity in the impugned orders.

The writ petition lacks merit and is accordingly, dismissed.

Order Date :- 17.8.2016

Kirti