Allahabad High Court
Vishal vs State Of U.P. And 5 Others on 28 November, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 1416 of 2020
Petitioner :- Vishal
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Devendra Kumar Shukla,Anil Kumar Dubey
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard the counsel for the petitioner and Sri Vikram Bahadur Yadav the learned Standing Counsel.
The present petition has been filed challenging the order dated 31.10.2019 whereby the claim of the petitioner for appointment on compassionate grounds has been rejected on one ground that the application was filed beyond the period of five years prescribed under the relevant rules.
The counsel for the petitioner argues that the father of the petitioner died while in service on 14.11.1999. It is claimed that the petitioner was born on 02.08.1994 and was subsequently adopted by the deceased Ranvir Singh by means of a registered adoption deed dated 21.09.1999. It is claimed that at the time of the death of the adoptee father, the petitioner was six years of age, as such, he applied for appointment on compassionate grounds after having attained the age of majority in the year 2012. The application of the petitioner was rejected on the ground that the same was beyond the period of five years prescribed under the dying in harness rules for moving an application in that regard. The counsel for the petitioner places reliance on the Full Bench judgment of this Court in the case of Shiv Kumar Dubey and others vs. State of U.P. and others; (2014) ADJ 312 wherein this court had passed the following directions in paragraph 29 of the said judgment :
"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."
In the light of the said, he argues that the impugned order is not sustainable as the same is contrary to the law laid down in the case of Shiv Kumar Dubey (supra).
The Standing Counsel, by means of the counter affidavit has taken a ground in the counter affidavit that the adopted son was brought within the definition of family member by means of the amendment carried out in the year 2011, as such, the benefit claiming to be adopted son of the deceased employee could not extended to the petitioner. The said contention of the counsel for the respondents merits rejection in view of the law laid down by this Court in the judgment dated 10.01.2019 passed in Writ A No.17364 of 2016 (Vishal vs. State of U.P. and others). Thus, both the grounds taken in the defense are not tenable in the law in view of the law as propounded by this court in the judgments referred to above.
The counsel for the respondents lastly places reliance on the order passed by this Court in Writ-A No. 751 of 2017 decided on 15.12.2018 wherein it was held that the appointment on compassionate grounds does not confer any infeasible rights. The said judgment is of no avail to the respondents inasmuch as it is well settled that the order has to be sustained on the basis of the facts mentioned in the order and cannot be supplemented subsequently in view of the law laid down in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others AIR 1978 SC 851.
Thus, on all the grounds, the defense of the respondents is found to be untenable and, as such, the impugned order dated 31.10.2019 is set aside with direction to the respondents to pass the orders on the application of the petitioner for grant of compassionate appointment in view of the law laid down in the case of Shiv Kumar Dubey and Vishal (supra). The respondents shall proceed to pass the orders in accordance with law within a period of two months from today.
It is made clear that the the application of the petitioner shall not be rejected on the ground that it was beyond time.
The writ petition stands disposed off.
Order Date :- 28.11.2022
VNP/-
