Vishal Singh vs State Of U.P. & 2 Others
2017 Latest Caselaw 6338 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 39
 

 
Case :- SPECIAL APPEAL No. - 540 of 2014
 

 
Appellant :- Vishal Singh
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Appellant :- Uma Nath Pandey,Uma Nath Singh
 
Counsel for Respondent :- C. S. C.
 
Hon'ble Dilip Gupta,J.

Hon'ble Jayant Banerji,J.

(Delivered by Hon'ble Jayant Banerji, J)

This Special Appeal has been filed by the petitioner-appellant1 to assail the judgment and order dated 17 April 2014 of a learned Judge of this Court in Writ-A No.22256 of 2014 ( Vishal Singh Vs. State of U.P and others) and for quashing the orders dated 31 July 2013 and 11 September 2013, passed by the Principal Secretary, Government of U.P. Lucknow and the Deputy Inspector General of Police (Establishment), Allahabad2 respectively. A further relief that has been claimed is that the DIG should reconsider the claim of the petitioner for appointment under Rule 5 of The Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness Rules, 19743.

In the writ petition, it was stated that the father of the petitioner, late Abhimanyu Singh was posted in U.P. Police Department as Constable and he died while on duty in a road accident on 20 July 1991 leaving behind his widow Sheela Singh, two daughters and a son (petitioner). At the time of death of his father, the petitioner was only seven years old and his sisters were also minor. Therefore, they were not eligible for compassionate appointment and the mother of the petitioner is almost illiterate and after death of her husband, she became disturbed. After the petitioner attained the age of majority and after he completed the Intermediate course, the mother of the petitioner submitted an application before the Superintendent of Police, Maharajganj on 19 July 2004 with a request that appointment be provided to her son (petitioner) under the Rules of 1974. In pursuance thereof, a report was called for which was eventually forwarded by the DIG to the State Government with the recommendation. It is alleged that the State Government without considering the report of the Superintendent of Police rejected the application of the petitioner for compassionate appointment by means of order dated 2 February 2009 and, thereafter, the DIG also rejected the claim of the petitioner on the ground of delay in seeking appointment by means of his order dated 2 March 2009. This was communicated to the petitioner by the Superintendent of Police by means of a letter dated 20 March 2009.

It appears that thereafter, another application dated 20 May 2010 was submitted by the mother of the petitioner before the State Government, in pursuance of which a report was again sought for from the Superintendent of Police, and, after enquiry, a recommendation for appointment of the petitioner was again sent to the DIG. The DIG in turn, sent the report along with recommendation dated 11 April 2013 to the State Government. It is alleged that the State Government without considering the reports and recommendations again refused to grant relaxation in appointment for the petitioner by means of order dated 31 July 2013. After receiving the order of the State Government, the DIG also rejected the application of the petitioner by means of order dated 11 September 2013.

The petitioner has stated that soon after completing the age of 18 years, the petitioner's mother submitted representation for appointment of the petitioner on compassionate ground but despite the reason of delay being genuine and bona fide, the State Government wrongly rejected the plea of the petitioner for granting relaxation in time limit under the proviso of Rule 5 of the Rules of 1974 without assigning any reason.

The learned Judge after considering the entire material available on record as well as Full Bench judgment cited by the petitioner in the case of Shiv Kumar Dubey and others Vs. State of U.P and others4 dismissed the writ petition with the observation that death of petitioner's father occurred on 20 July 1991 and the application for compassionate appointment was submitted for the first time on 17 July 2004 i.e. after 12 years and 11 months from the date of death of petitioner's father. In such circumstances, the learned Judge did not find it fit to interfere in the case.

It has to be seen that whether the State Government was justified in rejecting the claim of the petitioner for compassionate appointment under the Rules of 1974 on the ground that his application was belated.

As is admitted by the petitioner, the application for compassionate appointment under the Rules of 1974 was submitted before the Superintendent of Police, Maharajganj for the first time on 19 July 2004. This application was rejected by the State Government by means of order dated 2 February 2009 and the consequential order of the DIG dated 2 March 2009. Both the aforesaid orders were communicated to the petitioner by the Superintendent of Police by means of his letter dated 20 March 2009. However, there is no averment that the aforesaid two orders dated 2 February 2009 and 2 March 2009 were ever challenged by the petitioner. Instead, the petitioner chose to move a fresh representation after a lapse of more than a year on 20 May 2010 to the State Government for reconsideration of the matter and this representation was also rejected by the State Government and subsequently by the DIG by means of orders dated 31 July 2013 and 11 September 2013 respectively, which orders were challenged in the writ petition.

The order dated 31 July 2013, passed by the State Government refers to the petitioner's application along with the application of the petitioner's mother for relaxation of time limit fixed for filing of the application for compassionate appointment. The order refers to Clause (1) of Rule 5 of the Rules of 1974 which provides for making of an application for employment within five years from the date of death of a Government servant. It is stated therein that the petitioner's father died on 20 July 1991 and the petitioner's application for compassionate appointment is dated 17 July 2004 i.e. long after 12 years 11 month after the death of his father. The order further refers that there is no reason for granting relaxation of time limit provided for making application under Clause (1) of Rule 5 of 1974 Rules or to reconsider the decision earlier taken on the application. The consequential order dated 11 September 2013 passed by the DIG refers to the aforesaid order dated 31 July 2013 of the State Government and the reasons stated therein for not reconsidering the earlier decision taken by the State Government.

In this regard, it would be necessary to refer to the provisions of Clause (1) of Rule 5 of the Rules of 1974.:-

"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

(ii) 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."

The only reason given by the petitioner for not filing the application in time for seeking compassionate appointment under the Rules of 1974 is that his mother was illiterate and was mentally disturbed after death of his father and as such, she did not file the application for her own employment.

A perusal of the aforesaid Rule 5 of the Rules of 1974 indicates that subject to the conditions contained in the said Rule, an application seeking compassionate appointment can be made within five years from the date of death of a Government servant. The proviso stipulates 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 such or relax the requirement as it may consider necessary for dealing with the case in just and equitable manner.

In this regard it is important to refer to certain decisions of this Court as well as the Apex Court regarding the issue on compassionate appointment.

In a case similar to the case in hand, in the matter of Satish Kumar Singh Vs. State of U.P and others (Writ Petition No.12302 of 2012), this Court by judgment and order dated 13 March 2012, after considering the cases of Supreme Court in Commissioner of Public Instructions and others Vs. K.R. Vishwanath5, and Umesh Kumar Nagpal Vs. State of Haryana and others6, went on to observe as follows:

"The aforesaid decisions of the Supreme Court leave no manner of doubt that though the claim for appointment on compassionate grounds cannot be upheld on the touchstone of Article 14 or 16 of the Constitution but such a claim can be considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the employee who dies while in service. The appointment on compassionate grounds, therefore, cannot be claimed as a matter of right but can be claimed only in terms of the Rules or Regulations framed in this regard and that the Courts cannot confer 'benediction impelled by sympathetic consideration' dehors the Rules. Such an appointment, therefore, should be immediately provided to a member of the family to redeem the sudden financial crisis in the family.

The contention of the learned counsel for the petitioner is that he was a minor when his grand-father died in harness and, therefore, he moved the application only when he attained majority.

The Supreme Court has time and again dealt with the issue where the applicants who were minor at the time of death of the deceased who died in harness sought appointment on compassionate ground after attaining the age of majority."

The other cases relied upon by the Court were:

(i) Haryana State Electricity Board & Anr. Vs. Hakim Singh JT 1997(8) SC 332.

(ii) Jagdish Prasad Vs. The State of Bihar and another, JT 1995 (9) SC 131.

(iii) Haryana State Electricity Board Vs. Naresh Tanwar and another., JT 1996(2) 542.

(iv) Sanjay Kumar Vs. State of Bihar and others., 2000(10) SC 156.

The decisions of this Court as well as of the Apex Court have time and again emphasized that the appointment on compassionate ground is given to tide over the immediate financial difficulties faced by the family of the deceased and that a minor cannot claim appointment on compassionate ground unless scheme itself envisages that as and when such minor becomes major, he can be appointed without any time limit.

In the case of Shiv Kumar Dubey (supra), the Full Bench of this Court formulated the principles which must govern the compassionate appointment in pursuance of Dying in Harness Rules, 1974 as follows:-

"(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;

(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;

(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;

(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;

(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;

(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;

(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family."

In another judgment by a Division Bench of the High Court in the matter of Gaurav Vs. State of U.P and others7 the Court held as follows:

"The learned Single Judge has dismissed a petition filed by the appellant seeking compassionate appointment; the claim being that the father of the appellant who was a Constable in the Police service died on 30 June 1992 when the appellant was a minor. The appellant applied in 2009. The learned Single Judge held that the object and purpose of compassionate appointment is to give immediate financial support to the family of the deceased employee who was a bread earner and in view of the delay in the present case, the application could not be entertained.

The judgment of the learned Single Judge, in our view, is correct. The Supreme Court has held that under the scheme for compassionate appointment, there is no policy for reservation of a post in favour of a member of the family of the deceased employee but such appointment is given to tide over the immediate financial crisis resulting from the death of the wage earner. Hence, a person who was a minor at the time of death of a deceased employee cannot, as in the present case, seek compassionate appointment about two decades after the date of death. This view of the learned Single Judge is consistent with the law laid down by the Supreme Court, to which a detailed reference has been made in the recent judgment of the Full Bench of this Court rendered in Shiv Kumar Dubey Vs. State of U.P. & Others.

We, therefore, do not find any reason for interference. The special appeal is, accordingly, dismissed. There shall be no order as to costs."

In view of the above judgements, the contention of the learned Standing Counsel that the order dated 2 February 2009 and 2 March 2009 passed by the State Government and the DIG respectively have not been challenged by the petitioner and no relief can be granted to the petitioner deserves to be accepted. No proper justification has been given by the petitioner to explain the reason of the delay. In any view of the matter, as held by the Full Bench of this Court in the case of Shiv Kumar Dubey (supra), where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out; and, provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family.

In view of the above, we find no reason to interfere with the order passed by the learned Judge. This Special Appeal is, accordingly, dismissed.

Date: 6.11.2017

sfa/

(Dilip Gupta, J)

(Jayant Banerji, J)