Allahabad High Court
Gaurav Saroj vs State Of U.P. Prin. Secy. Deptt. Of ... on 23 August, 2022
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 676 of 2019
Petitioner :- Gaurav Saroj
Respondent :- State Of U.P. Prin. Secy. Deptt. Of Home And Ors.
Counsel for Petitioner :- Rakesh Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Rakesh Kumar Singh, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.
2. The petitioner claimed appointment under the Dying-in-Harness Rules, 1974 (hereinafter referred to as "the Act, 1974"). It is stated that father of the petitioner who was working on the post of Constable, died due to gun shot injury sustained while he was on bank security duty at Central Bank of India, P.S. - Chowk, Varanasi on 17.07.2006. At the time of death of his father, the petitioner was minor as he was borne in 1998 and was only nine years old and hence was minor. It is stated that mother of the petitioner was heart patient and was not in position to perform common duties and did not moved any application for appointment under Rules, 1974.
3. The petitioner after attaining age of majority and having passed intermediate examination, applied for appointment under the Rules, 1974, which has been rejected by means of impugned order dated 05.09.2018.
4. It is noticed that by means of impugned order the State Government has rejected the application of the petitioner only on the ground that same has been preferred after unreasonable delay of nine years one month and 27 days.
5. Learned Standing Counsel on the other hand has supported the impugned order by submitting that compassionate appointment is only granted to a person only in particular circumstances so that after death of sole bread earner the family does not fall into destitution and hence very fact that a person belatedly filed application for compassionate appointment itself indicates that they are able to support themselves and hence in such circumstances, the application for compassionate appointment has been rightly rejected.
6. Learned counsel for the petitioner on the other hand relying upon the judgment of Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U.P. & Others, 2014 (2) LBESR 195 (All) (FB), submits that where father of the petitioner has died when he was minor and hence he could not move an application for compassionate appointment and such an application is made when he became major, then the delay caused in filing such application is liable to be condoned in accordance with Rule 5 of the Rules, 1974. Rejection of application of petitioner on the sole ground of delay is illegal and arbitrary and is liable to be set aside. Relevant portion of Full Bench judgment in the case of Shiv Kumar Dubey (supra) is quoted herein below :-
"30. As regards the judgment of the Division Bench in Vivek Yadav (supra) the first part of the judment of the Division Bench in Vivek Yadav's case holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will not be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation with respect requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct position in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blind folded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify that the second proviso to Rule 5 requires an applicant who invokes the power of dispensation or relaxation under the first proviso of the time limit of five years, to make out a case of undue hardship by elucidating in wiring, with necessary documentary evidence and proof, the reasons and justification for the delay. The government may, in an appropriate case, when it is satisfied on the basis of the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso to Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms."
7. Learned counsel for the petitioner has strongly relied upon the judgment in the case of Shiv Kumar Dubey (supra).
8. Learned Standing Counsel could not dispute the ground on which the application of the petitioner has been rejected. Merely rejecting in one line that since application is filed with delay, hence, there is no reason to condone the delay. The application of the petitioner was required to decided in view of the law settled by this Court. In the case of Shiv Kumar Dubey (supra).
9. In view thereof, orders dated 05.09.2018 and 20.09.2018, are hereby quashed.
10. Petitioner is permitted to make a fresh representation to respondent no. 1 - Secretary, Home Department, Civil Secretariat, Lucknow, within a period of two weeks from today alongwith certified copy of this order as well as all other documents in support of his case. In case, such a representation/application is made by petitioner, respondent no. 1, shall consider and decide the same in accordance with law by a speaking and reasoned order within a period of two months from the date of receipt of representation.
11. The writ petition stands allowed.
Order Date :- 23.8.2022
A. Verma
(Alok Mathur, J.)
