Allahabad High Court
Shailendra Kumar vs State Of U.P. Through Principal ... on 30 May, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:99079
Court No. - 36
Case :- WRIT - A No. - 7032 of 2024
Petitioner :- Shailendra Kumar
Respondent :- State Of U.P. Through Principal Secretary And 2 Others
Counsel for Petitioner :- Devesh Kumar Giri,Som Veer
Counsel for Respondent :- C.S.C.,Gaurav Bishan
Hon'ble Piyush Agrawal,J.
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Mr. Som Veer, counsel for the petitioner and Mr. Gaurav Bishan, learned counsel for the respondents.
2. The instant writ petition has been filed with the following reliefs:-
"(i) Issue a writ order or direction in the nature of writ of Certiorari quashing the impugned order dated 06.01.2024 passed by the respondent no.2 against the petitioner; (Annexure No.15);
(ii) Issue a writ order or direction in the nature of writ of mandamus commanding and directing the respondents to appoint the petitioner on the post of Assistant Teacher in Basic Shiksha Parishad, Uttar Pradesh under Dying in Harness Rules, 1973;
(iii) ............."
3. Shri Ashok Khare, learned Senior Counsel submits that the wife of the petitioner namely Kamlesh Yadav was initially appointed on the post of Assistant Teacher in Primary School, Nagla Umar, Block- Shikohabad, District- Firozabad on 07.01.2006. On 08.05.2021, the wife of the petitioner died during her service period. Thereafter, on 20.05.2021, the petitioner moved various applications before the respondent no.3 for compassionate appointment under Dying in Harness Rules, 1973. During the pendency of the said application, petitioner approached this Court by way of filing Writ-A No.9029 of 2023, which was disposed of with direction to the respondent no.2 to decide the representation dated 18.10.2022 of the petitioner within a period of two months, but in spite of the specific direction of this Court, the application of the petitioner has not been considered. Consequently, petitioner preferred Contempt Application (Civil) No.5407/2023 before this Court, which was disposed of vide order dated 01.08.2023. When again the application of petitioner has not been decided, petitioner preferred Second Contempt Application (Civil) No.8126 of 2023, which was disposed of vide order dated 17.01.2024. In pursuance of the said order, the impugned order has been passed on 06.01.2024 against the petitioner mainly on two counts i.e. firstly, the application has been made with the delay of 11 months; secondly, the annual income of the petitioner from all sources (agriculture and family pension) is Rs. 5,20,000/-.
4. Shri Khare further submits that the State Government itself has provided the breathing time of five years for moving an application from the date of death, hence the stand taken by the respondents regarding delay in filing the application is bad in law. He further submtis that the Government has issued a Circular on 17 June, 2014 and in Clause 2 (b) of the same, it has been mentioned that the payment of retiral benefits shall not be the ground for rejecting the claim for compassionate appointment. He prays for allowing the present writ petition.
5. Per contra, counsel for the respondents supports the impugned order and submits that since the petitioner does not have any financial crisis as from all sources, the annual income of the family is Rs. 5,20,000/-, so it cannot be said that the deceased family is under minimum financial crunch.
6. In support of his contention, he has placed reliance upon the Full Bench judgment of this Court passed in the case of Ravi Kumar Dutt Vs. State of U.P. and Another, AIR 2015 All 47 (FB) and refers para 31 (iv) of the same.
7. After hearing the parties, the Court has perused the record.
8. It is not in dispute that the wife of the petitioner died in harness on 08.05.2021. It is also not in dispute that the application was moved for appointment on compassionate ground. First ground taken in the impugned order is that the application has been filed with the delay of 11 months and second ground taken is with regard to amount of Rs. 5,20,000/-, which is annual income of the family. Circular dated 17 June, 2024 issued by the government itself provides that any payment of retiral benefits shall not a ground of refusal of the appointment on the compassionate ground, therefore, the authorities must adhere to the government orders issued from time to time. Further, the authorities have failed to do the exercise even assuming that the petitioner has some financial supports, the same should have been bifurcated as how much was the family pension and income from agriculture, the said bifurcation has not been done by the authorities. The second ground for rejection also cannot hold water as the application had been moved within time. Therefore, the impugned order cannot sustain in the eye of law and the same is hereby quashed.
9. The writ petition is allowed, accordingly. The matter is remanded to the authorities concerned to decide only to to the extent of bifurcation of the amount (from all sources) into agriculture income and family pension.
10. The said exercise must be completed within a period of one month from the date of production of certified copy of this order.
Order Date :- 30.5.2024
Pravesh Mishra
