Allahabad High Court
Kavish Saxena vs State Of U.P. And 4 Others on 15 December, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:237436-DB
Court No. - 46
Case :- SPECIAL APPEAL DEFECTIVE No. - 893 of 2023
Appellant :- Kavish Saxena
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Ramesh Kumar Tiwari,Aditi Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
(Ref: Civil Misc. Delay Condonation Application)
Heard.
Delay in filing the present appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned. Office is directed to allot a regular number to the present appeal.
Application stands allowed.
Ref: Appeal
This special appeal has been preferred by the appellant challenging the judgment and order passed by the learned Single Judge dated 26.9.2023 in Writ Petition No.13114 of 2020 whereby the claim put forth by the petitioner for compassionate appointment has been rejected.
Facts, which are not in issue are that the petitioner claimed for compassionate appointment on account of death of his mother in the year 2015. It is admitted that on the date of death of petitioner's mother, his father was in employment. Rule 5(1) of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 clearly provides that the claim of compassionate appointment would be admissible only if necessary conditions in terms of Rule 5 are made. Rule 5(1) clearly provides that for a claim of compassionate appointment to succeed, the spouse of the employee be not in government service. Rule 5(1) of the Rules of 1974 which admittedly are applicable reads as under:-
"5. Recruitment of a member of the family of the deceased. - (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person-
(i) fulfils the educational qualifications prescribed for the post,
(ii) is otherwise qualified for Government service, and
(iii) makes the application for employment within five years from the date of the death of the Government servant:
Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner."
Learned counsel for the petitioner appellant submits that subsequent in point of time petitioner's father has also retired. This retirement has taken place in the year 2019. Merely because subsequent in point of time the surviving spouse has retired would not mean that the claim for compassionate appointment would revive.
Law is settled that compassionate appointment cannot be claimed as a matter of right and such consideration can take place only in accordance with the rules. Once the rules clearly dis-entitle the appellant for compassionate appointment, as has rightly been held by learned Single Judge, we find the grievance raised by the petitioner appellant to be wholly misconceived.
The contention that a subsequent representation has been moved in the year 2020 after the retirement of petitioner appellant would not merit any consideration in the facts of the present case since the entitlement to be considered for compassionate appointment would have to be viewed on the date of death of the deceased employee which is 2015. On that day admittedly the surviving spouse was in service. No fresh cause of action, therefore, would arise to the appellant upon retirement of the surviving spouse.
Subject to the observations made above, this appeal, accordingly, is dismissed.
Order Date :- 15.12.2023
RA
