Vishvajeet Yadav vs State Of U.P. And 3 Others
2022 Latest Caselaw 1878 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 714 of 2022
 

 
Petitioner :- Vishvajeet Yadav
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Jitendra Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Jitendra Kumar, learned counsel for the petitioner and Mr. J.S. Bundela, the learned Standing Counsel for the State-respondents.

This writ petition has been filed interalia for the following relief:-

"a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 5th August, 2021 passed by the Superintendent of Police, Ballia (Annexure-'1' to this writ petition);

b). Issue a writ order or direction in the nature of mandamus commanding upon the respondents to grant compassionate appointment to the petitioner in the respondent's department.

......."

It is the case of the petitioner that the father of the petitioner, namely, Murat Singh Yadav was appointed on the substantive post of Constable in U.P. Police Department. The father of the petitioner expired during harness on 25th November, 2005 leaving behind the dependents i.e. his widow, three daughters and two sons. At the time of death of his father, petitioner was only seven years old and after attaining the age of majority, made an application before the competent authority requesting to consider his claim for appointment on compassionate ground. When no decision was taken on the application of the petitioner, he approached this Court earlier by means of Writ-A No. 3273 of 2020 (Vishwajeet Yadav vs. State of U.P. & Others). The said writ petition was disposed of by a Writ Court vide order dated 28th February, 2020, whereby the petitioner was directed to make a fresh representation before respondent no.4 i.e. Superintendent of Police, Ballia, who inturn was directed to decide the same in accordance with law. In compliance of the said order of the Writ Court, the petitioner made an application before the Superintendent of Police, Ballia i.e. respondent no.4 herein on 28th February, 2020. The Superintendent of Police, Ballia i.e. respondent no.4 vide his letter dated 3rd June, 2020 has referred the matter of the petitioner to the Superintendent of Police (Personnel), U.P. Police Headquarter, Allahabad i.e. respondent no.3 for taking a decision thereon in compliance of the order of the Writ Court dated 28th February, 2020. However, without waiting the decision of respondent no.3 on the representation of the petitioner, the Superintendent of Police, Ballia i.e. respondent no.4 passed the order dated 5th August, 2021 rejecting the claim of the petitioner for appointment on compassionate ground on the basis that the petitioner has filed the representation for appointment on compassionate ground after a delay of 11 years, 11 months and 5 days. It is against this order that the present writ petition has been filed.

When the matter was taken up on 11th March, 2022, following order was passed:

"Learned Standing Counsel prays for and is granted ten days' time to obtain instructions in the matter, as to whether, pursuant to the letter dated 03.06.2020 any instructions have come from the State Government of relaxing the period of moving an application for considering the claim of appointment on compassionate ground.

Put up as fresh on 24.03.2022. "

Today, the learned Standing Counsel for the State-respondents submits that pursuant to the above order he has received the instructions and a copy of the same has been placed before this Court, which is taken on record. On the basis of instructions so received by him, learned Standing Counsel submits that before passing the order impugned i.e. 5th August, 2021, in compliance of the order of the Court dated 28th February, 2020, an order has been passed by the State Government which has been communicated to the Superintendent of Police, Basti i.e. respondent no.4 vide letter of the Superintendent of Police, Establishment, U.P. Government at Lucknow dated 4th September, 2020, whereby the Superintendent of Police, Basti i.e. respondent has been authorized him to take decision for grant of relaxation in submission of the application of the petitioner for appointment on compassionate ground, a copy of the same has been brought on record at page-4 of the instructions.

Learned counsel for the petitioner submits that it is no doubt true that the prescribed period for making an application for appointment on compassionate ground is five years, as provided under Dying-in-Harness Rules and relevant Government Orders and the petitioner has made his representation after a period of more than 11 years but though respondent no.4 has been authorized by the State Government to relax the time period in filing the application of the petitioner for appointment on compassionate ground, respondent no.4 has not considered the financial hardship faced by the petitioner, his mother, brother and two sisters at the present time, after the death of his father, while rejecting the claim of the petitioner under order impugned dated 5th August, 2021. He next submits that a Full Bench of this Court in the case of Shiv Kumar Dubey and others vs. State of U.P. and Ors. reported in 2014 2 ADJ 312, has opined that the State authorities seeing the financial status of the dependent of the deceased employee may relax the period of limitation for making an application for appointment on compassionate ground. Learned counsel for the petitioner, therefore, submits that the first ground taken under the order impugned is incorrect in the eyes of law.

On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that the order impugned is liable to be quashed.

On the other-hand, learned Standing Counsel submits that there is no illegality in the order impugned, but he could not dispute the submissions made by the learned counsel for the petitioner.

I have heard learned counsel for the parties and have gone through the records of the present writ petition.

This Court finds substance in the submission made by the learned counsel for the petitioner that the Superintendent of Police, Basti i.e. respondent no.4 has not considered the financial hardship of present time, faced by the petitioner and other family members of his family after the death of his father and has also not examined the law laid down by the Full Bench of this Court in the case on Shiv Kumar Dubey (Supra), despite the fact that respondent no.4 has already been authorized by the State Government to relax the time period in filing the application of the petitioner for appointment on compassionate ground. In the said judgment, the Full Bench has opined as follows:

"As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment 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 blindfolded 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 writing, 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."

In view of the aforesaid, this Court finds that the order impugned passed by respondent no.4 dated 5th August, 2021 cannot be legally sustained and hereby set aside. This matter is remitted back to respondent no.4 for decision afresh. While considering this matter afresh, respondent no.4 shall pass a reasoned and speaking order, in light of the judgment of the Full Bench of this Court in the case of Shiv Kumar Dubey (Supra) and the observations made herein above, preferably within a period of two months from a date of production of a certified copy of this order.

The present writ petition is allowed subject to the observations made above.

(Manju Rani Chauhan, J.)

Order Date :- 4.5.2022

Sushil/-