State Of U.P. Thru. Its Prin. Secy. ... vs Subhas Chandra Tiwari
2023 Latest Caselaw 2294 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 14 of 2023
 

 
Appellant :- State Of U.P. Thru. Its Prin. Secy. Estate Deptt. Govt. Of U.P. Civil Secrt. Lko. And Another
 
Respondent :- Subhas Chandra Tiwari
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Shikhar Anand
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

(C.M.A. No. 1 of 2023 : Application for condonation of delay.)

Heard Sri Mayankar Singh, learned Addl. C.S.C. and Sri Shikhar Anand, learned counsel for the respondent.

Cause shown for the delay in filing the special appeal is sufficient. The application is allowed. Delay is condoned.

(Order in Appeal)

1. The instant appeal is directed against the judgment and order dated 12.10.2022 passed by an Hon?ble Single Judge of this Court in Writ-A No. 6739 of 2022.

2. Briefly stated, the facts of the case are that appellant?s father had died in an accident on 13.6.1990 while he was working on the post of Senior Assistant in Rajya Sampatti Vibhag. At the time of death of his father the appellant was aged about two years. The appellant?s father had left behind two wives and a dispute arose regarding distribution of the dues payable upon his death, regarding which a succession-case No. 163 of 1993 was filed in the Court of Civil Judge (S.D.), Balrampur.

3. Upon attaining the age of majority the appellant applied for being appointed on compassionate basis in the year 2007 and again on 20.2.2015.

4. On 10.7.2015 a reply was sent to the appellant on behalf of the Government stating that his representation for giving compassionate appointment will be considered only after decision of the case filed in the Court of Civil Judge (S.D.), Balrampur, regarding succession.

5. The civil litigation was decided on the on the basis of Compromise between the parties on 9.8.2016 and on 22.8.2016 the appellant gave another application for being appointed on compassionate basis. The said application was rejected by means of an order dated 7.12.2017 on the ground that the appellant being son of the second wife of the deceased employee would not fall within the definition of ?Family? as given in the U.P. Government Servant (Dying in Harness) Rules 1974.

6. The appellant challenged the order dated 7.12.2017 by filing Writ Petition no. 6101 of 1918, which was allowed by means of a judgment and order dated 3.3.2022 and relying upon a decision of Hon?ble the Supreme Court in the case of Union of India v. V.R. Tripathi, (2019) 14 SCC 646, this Court held that even children of second wife are entitled to appointment on compassionate ground and the matter was remanded to the State Government for being decided afresh.

7. Even after re-consideration the Government has rejected the appellant?s representation for being appointed on compassionate ground by means of an office-memorandum dated 24.05.2022 on the ground that for the first time the appellant gave application for compassionate appointment on 20.2.2015, which was moved with a delay of 24 years-8 months-7-days after the death of his father on 13.6.1990. The Dying in Harness Rules contemplate filing of application for appointment under the said Rules within 5 years and although there is a provision for condonation of delay in filing the application, in the present case there was no reason to condone the delay.

8. The appellant had challenged the aforesaid order dated 24.5.2022 by filing Writ Petition No. 6739 of 2022 and relying upon a Full Bench decision of this Court in the case of Shiv Kumar Dubey v. State of U.P., AIR 2015 Alld. 47, the Hon?ble Single Judge allowed the writ petition.

9. In Shiv Kumar Dubey (supra) a Full Bench of this Court has held as follows:-

?31. 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.?

10. In the present case the appellant?s father had died in the year 1990, while the appellant was merely two years of age. Immediately after attaining the age of majority, he applied for being appointed on compassionate basis in the year 2007 and although in paragraph 5(4) of the order dated 24.5.2022 there is a mention that the appellant had filed an application for being appointed on compassionate basis upon attaining majority in the year 2007, in later part of the order the reason for rejecting the appellant?s claim has been mentioned that he had filed the application for compassionate appointment for the first time on 20.2.2015, which contention is wrong even on the face of the record.

11. Learned counsel for the appellant has submitted that for claiming compassionate appointment the appellant must establish that the family is in financial crisis. In this regard, suffice it to say that in the application for compassionate appointment submitted by the appellant on 8.8.2007 it was categorically stated that the appellant?s family was dependent on the service of his deceased father and after the death of his father the appellant?s family is facing serious financial hardships.

12. So far as the question of delay in making a claim for compassionate appointment is concerned, the appellant?s father had died in the year 1990, when the appellant was merely two years of age; he submitted an application for compassionate appointment immediately after attaining the age of majority in the year 2017; there was a dispute between the two wives of the appellant?s father, regarding which civil litigation was going on and by means of a letter dated 10.7.2015 it was communicated that the Government has decided to take a decision on the appellant?s claim only after decision of the aforesaid litigation and the appellant has moved an application again, immediately after decision of the succession-case. Therefore, there was no delay on the part of the appellant in claiming compassionate appointment.

13. In view of the aforesaid discussion, we find ourselves in agreement with the view taken by Hon?ble the Single Judge that the impugned order dated 24.5.2022 rejecting the appellant?s representation for being appointed on compassionate basis is not sustainable in law. The appellant is directed to ensure compliance of the order dated 12.10.2022 passed by Hon?ble the Single Judge, within a period of 30 days from today.

14. With the above observations, the appeal is allowed.

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

Order Date :- 23.1.2023

A.Nigam