Deepanshu vs State Of U.P. And 2 Others
2022 Latest Caselaw 2702 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 35
 

 
Case :- WRIT - A No. - 5549 of 2022
 

 
Petitioner :- Deepanshu
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Naveen Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Misra
 

 
Hon'ble Ajit Kumar,J.

1. Heard learned counsel for the petitioner and Sri Sunil Kumar Misra, learned counsel for the respondents.

2. By means of this petition filed under Article 226 of the Constitution, the petitioner has prayed for consideration of his claim for compassionate appointment on account of his father dying in harness on 17.10.2009.

3. It transpires from the records that on the date the application has been moved by the widow of deceased employee, the petitioner was minor and after he attained the age of majority he submitted an application on 08.03.2020 and the affidavit of the mother of the applicant dated 09.03.2022 has also been brought on record.

4. Per contra it is submitted by Sri S.K. Misra, learned counsel for the respondents that petitioner though was minor at that point of time but since more than five years have expired since after the death of his father, the proper authority to grant relaxation in age for compassionate appointment is the State Government.

5. The question is, whether in the matter of Corporation also State Government is required to grant age relaxation that too even in those cases where applicant was minor at the time his father had died in harness. This Court had an occasion to look into this above aspect vis a vis the regulations applicable to the Corporation in the case of Ashish Kumar Mishra v. State of U.P. & Ors (Writ - A No. 41719 of 2017) decided on 21.09.2017 quoting the relevant regulations and relying upon the judgment of Full Bench in Shiv Kumar Dubey & Ors v. State of U.P. & Ors [2015 AIR (All) 47] it has been held thus:

"..... the U.P. State Road Transport Corporation are otherwise governed by the provisions of the U.P. State Road Transport Corporation Employees Service Regulation, 1981. Regulation 77 provides for grant of employment to a dependent of an employee, dying in harness during service. Regulation -77 reads as Under:-

"77. Employment to the dependent of an employee dying or incapacitated during service:- In the even of death or permanent disability of an employee while in service his son or any other member of his family dependant on him may be appointed on a post in the service for which he possesses the prescribed qualification. The procedure for recruitment contained in these Regulations will not be applicable in his case. If necessary the age limit and academic qualifications may also be relaxed".

Statutory regulations which are applicable in the facts of the present case clearly provides the authority concerned the jurisdiction to relax the age and academic qualification, if necessary. There is no provisins in the statutory regulations which restricts the power of the Corporation to entertain an application for grant of compassionate appointment beyond 5 years. In such circumstances Rule-77 could not have been construed in such a manner so as to oust the jurisdiction of the authority concerned in entertaining an application for grant of compassionate appointment beyond the period of 5 years. Even otherwise, principles laid down by this Court in its judgment in Shiv Kumar Dubey (supra) have not been taken note of. In para-29 of the judgment, following principles have been laid down by the larger Bench:-

"29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

(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".

The consideration which are germane for the issue have not been taken note of by the Regional Officer while taking the decision in the matter. The provisions of the Rules of 1981 have also not been examined....................."

6. Accordingly, this petition stands disposed of with a direction to respondent no. 3 to look into and consider the grievance of the petitioner for compassionate appointment on account of death of his father in harness in the year 2009 when the petitioner was minor and appropriate reasoned and speaking order shall be passed in respect of the claim of the petitioner within a period of three months from the date of submission of certified copy of this order.

Order Date :- 13.5.2022

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