Yatendra Kumar vs State Of U.P. And 5 Others
2021 Latest Caselaw 1825 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 

 
Case :- WRIT - A No. - 41120 of 2017
 

 
Petitioner :- Yatendra Kumar
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Vijay Gautam,Mohammad Fahad,Vinod Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Heard Sri Vinod Kumar Mishra and Sri Devesh Mishra, learned counsel for the petitioner, learned Standing Counsel for the State authorities and perused the materials brought on record.

Compassionate appointment was offered to petitioner on 7.8.2013, on the basis of a direction issued by this Court in Writ Petition No. 12641 of 2012 for consideration of such claim, which was to remain subject to the outcome of Special Appeal Defective No. 456 of 2006. Since the special appeal filed by the State has been allowed, as such, petitioner's compassionate appointment on the post of Sub-Inspector has been cancelled. Aggrieved by the order of cancellation of appointment, dated 30th July, 2017, the petitioner is before this Court.

Facts, giving rise to the petitioner to approach this Court on the earlier occasion is recorded in the order of this Court in Writ Petition 12641 of 2012, dated 8.3.2013, which is reproduced hereinafter:-

".........

Petitioner's father was a permanent employee in the police department and was posted as constable in district Mainpuri and during service he expired on 6.5.2001. Petitioner was minor at the time of death of his father. On attaining the age of majority he moved an application on 22.4.2006 before respondent no.3 seeking compassionate appointment on the post suitable as per his qualification .In the writ petition, petitioner further submits that his mother is not eligible for appointment due to her old age and illness. The claim of the petitioner was rejected on the ground that on the date of application he did not attain the minimum age of 21 years required for employment. Petitioner attained the age of 21 years on 4.5.2007 and did graduation in 2006. In the impugned order it has been further stated that period of five years prescribed for giving employment on compassionate ground had expired prior to the petitioner attaining the minimum age of 21 years ,therefore question for consideration of his claim does not arise.

Learned counsel for the petitioner assailing the order dated 6.11.2009, submits that as per averments made in the impugned order itself the period of five years expired on 5.5.2006 and before the said date he had already moved an application for compassionate appointment. He further submits that his claim was rejected on 6th November, 2009 and on the date of consideration of his claim he had minimum required age of appointment i.e.21 years on 4.5.2007. In view thereof order impugned cannot be sustained as the application was moved within a period of five years from the date of death of his father. As soon as he attained the majority and on the date of consideration of his claim he fulfilled requirement for appointment. He further placed reliance on the judgment of this court in Vaibhav Singh vs. State of U.P. and others dated 23.12.2005 in writ petition no. 52 of 2003. Learned counsel for the petitioner inviting the attention of the court to the last paragraph of the judgment and submits that his case is squarely covered.

Learned standing counsel appearing for the respondent on the other hand has supported the impugned order and submitted that as the petitioner did not attain the age of 21 years on the date of moving of the application in the year 2006, within a period of five years from the date of death of his father, order dated 6th November, 2009 is justified and call for no interference by this court. He further submits that petitioner in his application sought employment on compassionate ground on the post of sub-inspector/Platoon Commander which cannot be given to him as the object of the compassionate appointment is to meet financial crisis of the family of the deceased and no person can claim appointment against the particular post.

Having heard learned counsel for the parties, there is no dispute about the preposition that petitioner cannot claim apportionment on compassionate ground against a particular post. However, he has right for consideration if all other requirements are fulfilled. The grounds for rejection of the claim of the petitioner as mentioned in the impugned order are that he did not attain the age of 21 years within a period of five years from the date of death of his father. In the case of Vaibhav Singh(supra) the similar dispute was considered by this court and it was held that:

"A joint reading of the three rules leads to the only conclusion, relevant for the present facts, that the incumbent ought to be more than 18 years old and the minimum age for recruitment in the normal recruitment rules would stand relaxed and the incumbent would be entitled for compassionate appointment. It need not be emphasized that the rules are an exception to the normal recruitment rules. Applying the effect of the aforesaid rules to the case at hand, it would be apparent that the impugned order cannot be sustained. The only ground for refusing appointment as Sub Inspector is that the petitioner was less than 21 years of age but it is apparent that he was in fact more than 18 years of age when he applied for compassionate appointment. In any event, on the date when the claim of the petitioner was rejected, he had already attained the age of 21 years.

Thus, examining the impugned order from either of the two angles,it cannot be sustained.

For the reasons given hereinabove, this petition succeeds and is allowed and the impugned order dated 4.12.2002 is hereby quashed. The respondents are directed to reconsider the claim of the petitioner in the light of the observations made hereinabove within a period of two months and grant him appointment as Sub Inspector. No order as to costs."

Thus following the reasons given in the judgement of Vaibhav Singh (supra) the impugned order dated 6.11.2009 cannot be sustained, the same is hereby quashed. Respondent no.1 is directed to consider and decide the claim of the petitioner afresh in accordance with law by reasoned and speaking order within a period of one month from the date of production of a certified copy of this order.

With the aforesaid observation, the writ petition is allowed."

From the recital of facts in the previous order of this Court, it is apparent that petitioner's father died while in harness on 6.5.2001. Petitioner was a minor then. After attaining the age of majority, an application for compassionate appointment came to be filed by the petitioner on 22.4.2006, which was within the five years limitation, specified in the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. The application, however, has now been rejected on the ground that petitioner had not completed 21 years of age on the date of making of application i.e. 22.4.2006. The age of 21 years was attained by the petitioner on 4.5.2007. His claim for compassionate appointment has been considered only in the year 2013, by when the petitioner had already completed 21 years. His appointment, however, was subject to the pending special appeal in the case of Vaibhav Singh and since the State's appeal is allowed, the appointment offered to petitioner on the post of Sub-Inspector has been cancelled.

The Division Bench Judgment of this Court in the case of Vaibhav Singh (supra) is, therefore, required to be examined in order to adjudicate the present controversy. In the case of Vaibhav Singh, the deceased employee, a Sub-Inspector, died in harness on 19.11.1994. An application was moved for compassionate appointment in the case of Vaibhav Singh (supra) on 28.2.1995, but it lacked any material particulars. A subsequent application was filed on 24.8.1999, which was after the expiry of five years from the date of the filing of the application. An issue arose as to whether on the basis of such an application, the claim of compassionate appointment could be allowed?

Learned Single Judge of this Court allowed the writ petition, against which the State had preferred Special Appeal No. 1117 of 2011. The special appeal has been allowed, vide following observations made on 8.5.2015:-

"The father of the respondent died on 19.11.1994. The first application claiming compassionate appointment was moved on 28.02.1995 by the mother of respondent. This application was in time. In this application, name, age and other details pertaining to all family members of the deceased employee, particularly about their marriage, employment and income and details of the financial crises as required under Rule 6 was not mentioned. The application was not maintainable for want of requisite details. The subsequent applications dated 24.08.1999 and 05.10.1999 claiming compassionate appointment were beyond the period of five years. In the applications dated 24.08.1999 and 05.10.1999 name, age and other details pertaining to all family members of the deceased employee, particularly about their marriage, employment and income and details of the financial crises as required under Rule 6 and was mandatory was not provided. Therefore, these applications were not maintainable at all.

The issue involved in this appeal is similar to the issue involved in Special Appeal No. 1069 of 2014; State of U.P and others Vs. Raj Surya Pratap Singh Chauhan, hence for the reasons stated therein, we are of the view that the respondent is not at all entitled for compassionate appointment.

In this case, the compassionate appointment has been given subject to the decision of Special Appeal.

In the result, the appeal is allowed. The order of learned Single Judge dated 23.12.2005, passed in Writ Petition No. 52 of 2003, is hereby quashed."

The special appellate bench while deciding the Special Appeal No. 1117 of 2011 has followed an earlier judgment delivered in Special Appeal No. 1069 of 2014, State of U.P. and two others Vs. Raj Surya Pratap Singh Chauhan. In the case of Raj Surya Pratap Singh Chauhan, the deceased employee, a Constable in U.P. Police, died on 31.7.2001. An application for grant of compassionate appointment on the post of Sub-Inspector (Ministerial) was filed on 20.2.2002. He was required to appear in the test for selection to the post of Sub-Inspector (M), but he failed to qualify. Another application was thereafter moved for compassionate appointment on the post of Constable. Appointment on the post of Constable was offered, but Raj Surya Pratap Singh Chauhan insisted for appointment on the post of Sub-Inspector (Civil Police). An application in that regard was filed on 19.8.2009. This application was referred to Police Headquarter and a direction was issued to consider his claim. A Government Order, consequently, was issued on 23rd September, 2011, directing first application for compassionate appointment alone to be entertained and his eligibility was to be restricted to the date of filing of the application. However, in a writ petition filed before this Court, No. 32832 of 2012, a direction was issued to the concerned authority to examine eligibility on the date of consideration and not on the date of filing of the application. It was against this order that the matter was carried in Special Appeal No. 1069 of 2014 by State of Uttar Pradesh. The Division Bench while allowing the appeal observed as under:-

"In the present case, no reasonable justification has been given nor any document has been filed explaining the cause of delay. Therefore, we are of the view that the State Government has rightly refused to relax the period.

The compassionate appointment do not constitute a reservation of a post in favour of the member of the family of the deceased employee. It can not be claimed as a matter of right. The compassionate appointment is exception to the general rule of recruitment. The object and purpose providing the compassionate appointment is to enable the dependent members of the family of the deceased employee to tied over the immediate financial crises caused by the death of the bread-earner. In determining as to whether the family is in financial crises, all relevant aspects must be borne in mind including 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 and for such determination, the details sought is required to be given in the application as provided under Rule 6 of the Rules.

In the present case, the respondent in the application has not given the name and age and other details pertaining to all family members of the deceased employee, particularly about their marriage, employment and income and the details of the financial crises as required under Rule 6. In the application, he was not able to substantiate any financial crises. Moreover, the respondent is maintaining himself and his family members since last 14 years and is involved in litigation, incurring expenses, which shows that he and his family members are not in financial crises.

The respondent has declined the offer of the compassionate appointment on the post of Constable.

On the facts and circumstances, we are of the view that the respondent is not at all entitled for any compassionate appointment.

In view of the above, we are of the view that the direction of the learned Single Judge to reconsider the claim of the respondent for compassionate appointment, is not justified."

Facts in the case of Vaibhav Singh (supra) and Raj Surya Pratap Singh Chauhan (supra) are clearly distinct from the facts of the present case. In the case of Raj Surya Pratap Singh Chauhan, the State Government had issued a Government Order, dated 23rd September, 2011, as per which, the eligibility had to be examined on the date of first application moved for grant of compassionate appointment. On the date of first application, Raj Surya Pratap Singh Chauhan was eligible for appointment to the post of Sub-Inspector (Ministerial), but he failed to qualify in the recruitment held for the post. His claim for appointment to the post of Constable was accepted, but he refused to join. His subsequent application for appointment to the post of Sub-Inspector (Civil Police) was declined on the ground that he did not possess requisite qualification on the date of his first application and had also failed to avail of the compassionate appointment offered for the post of Constable.

Similarly, in the case of Vaibhav Singh (supra), the application for compassionate appointment itself was made after expiry of five years and the Court was convinced that reasons for delay had not been explained.

As against the above noted two cases, the present petitioner had filed his first application for the appointment on 22.4.2006. This application was within five years from the date of death of the deceased government servant i.e. 6.5.2001. On 22.4.2006, petitioner was above 18 years of age, but was below 21 years. In the event respondents restricted the eligibility to the date of application i.e. 22.4.2006, they ought to have considered petitioner's claim for appointment to the post of Constable. There is nothing on record to show that petitioner's claim for appointment to the post of Constable was ever considered. Before the consideration for appointment could take place the petitioner acquired age of 21 years and became eligible for appointment to the post of Sub-Inspector which was offered to him. This offer, however, was subject to the pending Special Appeal in the case of Vaibhav Singh (supra).

In view of the Division Bench Judgment delivered in the case of Vaibhav Singh and Raj Surya Pratap Singh Chauhan, it is clear that petitioner's eligibility for compassionate appointment had to be restricted to the date of filing of the application. On 22.4.2006, when this application was filed, petitioner was less than 21 years of age and, therefore, he could not have been offered compassionate appointment on the post of Sub-Inspector. However, the petitioner was above 18 years of age, which was the minimum age prescribed for appointment to the post of Constable. Even if the Special Appeal in the case of Vaibhav Singh was allowed, yet the respondents were required to consider petitioner's claim for compassionate appointment on the post of Constable. This, however, has not been done. Although, cancellation of petitioner's appointment on the post of Sub-Inspector cannot be faulted as the petitioner was not eligible for it on the date of making of application, yet the authorities were required to examine petitioner's claim for compassionate appointment on the post of Constable.

A writ of mandamus is, therefore, issued to the respondents to consider petitioner's claim for compassionate appointment on the post of Constable as the petitioner possessed eligibility for it in terms of the appropriate service rules. Required consideration in that regard would be made within a period of three months, from the date of presentation of a copy of this order before the concerned authority.

The writ petition, accordingly, stands disposed of.

Order Date :- 2.2.2021

Ranjeet Sahu