Allahabad High Court
Ashutosh vs State Of U.P. And 4 Others on 19 January, 2021
Bench: Munishwar Nath Bhandari, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 42 of 2021
Appellant :- Ashutosh
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Arvind Srivastava Iii
Counsel for Respondent :- C.S.C.
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Rohit Ranjan Agarwal,J.
Order on Civil Misc. Delay Condonation Application.
Since the matter has been heard and decided on merits, the application for condonation of delay is not opposed by the counsel for the side opposite and accordingly it is accepted.
Delay in filing the appeal is condoned.
Accordingly the application is allowed as aforesaid.
Order on Appeal
By this appeal, a challenge is made to the judgment and order dated 04.02.2020 whereby the writ petition preferred by the petitioner-appellant to challenge the order dated 13.12.2019 denying the compassionate appointment was dismissed. It is a case where the erstwhile employee died on 29.10.1993. An application for compassionate appointment was submitted by the mother when petitioner-appellant attained the age of maturity in the year 2012. The application aforesaid was not accepted by the respondents.
The learned Single Judge found that the family survived for 26 years therefor no justification exist for a direction to grant compassionate appointment. The compassionate appointment is to redress the financial crises of the family whose sole bread-earner dies-in-harness.
Learned counsel for the petitioner-appellant submits that at the time of the death of his father, he was not even born. After attaining the age of maturity in the year 2012, the application was submitted by the mother. The mother was not in a position to take compassionate appointment. In the light of the aforesaid, the respondents should have relaxed Rule 5 of the the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (In short Rules, 1974). A reference of Full Bench judgment of this court in the case of Shiv Kumar Dubey and others Vs. State of U.P. and others reported in 2015 AIR (Alld.) 47 has been given. It is submitted that the Full Bench of this court has issued direction to relax proviso to Rule 5 of the Rules of 1975.
Accordingly, the prayer is to set aside the judgment of learned Single Judge with a direction to the respondents to give compassionate appointment to the petitioner-appellant.
We have considered the submission made by the counsel for the petitioner-appellant and perused the record.
It is no doubt that the petitioner-appellant's father died on 29.10.1993 when he had not even born but perusal of the application to seek compassionate appointment by the mother shows that even the elder brother was available. The court asked as to why an application to seek compassionate appointment was not given for the elder brother. It is submitted that brother was living separately after the marriage. The learned counsel for the petitioner-appellant could not give the date of marriage and even the age of elder brother. The date of marriage is relevant because he started living separately after the aforesaid. If one of the family members was available, if not mother, the compassionate appointment could have been sought for him and not for the petitioner-appellant till he attained the age of maturity. The compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crises and not to provide employment
Delay in seeking appointment is fatal in view of the judgment of the Apex Court in the case of Umesh Kumar Nagpal Vs. State of Haryana others (1994) 4 SCC 138. There are catena of judgment of the Apex Court to hold that very purpose to seek compassionate appointment is frustrated if it is delayed. Para 5 and 6 of the judgment of Umesh Kumar Nagpal (supra) are quoted here under:-
"5. It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.
6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
The same view has been reiterated by Full Bench of this court in the case of Shiv Kumar Dubey (Supra). Para 29(v) of the said judgment is quoted here under for ready reference.
"(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."
It is no doubt that in para 30 observation/direction has been given in regard to the application submitted by the minor after attaining the age of maturity. It is for the purpose of object sought to achieve for compassionate appointment.
We find no ambiguity in proviso to Rule (5) of the Rules 1975 and otherwise it is settled law that the compassionate appointments are meant for the family suffer financial crises on the death of bread-earner which cannot continue till the minor attains age of maturity. It is a case where the mother was available to seek compassionate appointment apart from the elder brother, thus the relaxation of the nature specified in para 30 of the judgment in the case of Shiv Kumar Dubey (Supra) would not apply and is otherwise of exceptional nature.
In view of above, we find no reason to cause interference in the judgment passed by learned Single Judge for case a where now compassionate appointment would be after lapse of more than 26 years of the death of the erstwhile government employee.
The appeal is accordingly, dismissed.
Order Date :- 19.1.2021
piyush
