Vijendra Singh vs State Of U.P. And 3 Others
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Allahabad High Court

Vijendra Singh vs State Of U.P. And 3 Others on 14 February, 2025

Author: Prakash Padia

Bench: Prakash Padia

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:21586
 
Reserved on 21.01.2025
 
Delivered on 14.02.2025
 

 
Court No. - 7
 

 
Case :- WRIT - A No. - 6108 of 2021
 

 
Petitioner :- Vijendra Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Mahendra Singh,Ram Naresh Nigam,Suresh Singh
 
Counsel for Respondent :- C.S.C.,Sushil Kumar Chaturvedi
 

 
Hon'ble Prakash Padia,J.
 

1. The petitioner has preferred present writ petitioner inter-alia with the prayer to quash the order dated 20.03.2021 passed by respondent no.3-District Basic Education Officer, Kushinagar. Further prayer is made to direct the respondent authority to appoint the petitioner under Dying-in-Harness Rules in the institute of respondent no.4.

2. The facts in brief as contained in the writ petition is that father of the petitioner was a teaching staff in the institution in question namely Saraswati Bal Vidya Mandir Junior High School, Ramkola, District Kushinagar and died while working on post of Assistant Teacher on 09.03.2014. The petitioner submitted an application seeking his appointment on compassionate ground before the Additional Director of Education (Basic Education), 7th Region, Gorakhpur Region, Gorakhpur on 08.12.2016. He also submitted a representation in this regard before the District Basic Education Officer, Kushinagar/respondent no.3. The real sisters of the petitioner as well as mother of the petitioner have also given no objection for the appointment under Dying-in-Harness Rules. Since no action has been taken on the representation of the petitioner hence petitioner preferred a petition being Writ A No.9255 of 2020, which was disposed of by this Court vide order dated 04.11.2020. The order dated 04.11.2020 reads as follows :-

?Heard learned counsel for the petitioner and learned standing counsel for State ? respondents.

The sole prayer made by the petitioner in the present writ petition is that a direction may be issued to the respondent no.3 to consider the claim of the petitioner and provide appointment under the dying in harness rules.

Learned counsel for the petitioner submits that the father of the petitioner had died on 9.3.2014 in harness and thereafter the petitioner moved an application for appointment under dying in harness rules, which is still pending. He further submits that a direction may be issued to the respondent no.3 to decide the claim of the petitioner expeditiously within the time fixed by this Court. To this submission, learned standing counsel no objection.

Be that as it may, the writ petition is disposed of with the liberty to the petitioner to filed a detailed representing annexing therewith all necessary documents along with a copy of this writ petition, its annexures and a copy of this order within a period of ten days before the respondent no.3 and on receipt of the same the respondent no.3 shall pass an appropriate and reasoned order, in accordance with law, within a period of 2 months from the date of receipt of such representation.

It is made clear that the Court has not adjudicated the claim of the petitioner on merits.?

3. Pursuant to the aforesaid now a decision has been taken by the respondent no.3-District Basic Education Officer, Kushinagar rejecting the claim of the petitioner for his appointment on compassionate ground on the ground that the application was not submitted by the petitioner within a period of five years from the death of father of the petitioner.

4. It is argued by counsel for the petitioner that the aforesaid ground is not tenable in the eye of law since the application was submitted by the petitioner in the year 2016 itself. It is further argued that as per Government Order dated 04.09.2020, in case application was not submitted within a period of five years, the matter should be referred to Secretary, Basic Education Board, U.P. Allahabad.

5. Inspite of the time granted no counter affidavit has been filed by the respondent-State. The only counter affidavit has been filed by the respondent no.4-Manager, Saraswati Bal Vidya Mandir Junior High School, District Kushinagar in which claim set up by the petitioner was duly accepted.

6. The pure question of law is involved in the present writ petition.

7. Heard learned counsel for the parties.

8. From perusal of the record it transpires that only reason given by the respondent no.3 while rejecting the appointment of the petitioner on compassionate ground is that the application was not submitted within a period of five years. The full bench of this Court in the case of Shiv Kumar Dubey and others Vs. State of U.P. and others reported in 2014 (2) ADJ 312 referred the following questions before the larger bench :-

?(1) Whether the judgments in Subhash Yadav v. State of U.P., 2010 (10) adj 289 (DB) and Vivek Yadav v. State of U.P. and others, 2010 (7) adj, 1, on the interpretation of the provisions of Rule 5(iii) and the proviso thereto read with Rule 8 of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, lay down the correct position of law ??

9. After noting down the relevant rules, the following observations were made in para 29 of the aforesaid judgement, which reads as follows :-

?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.?

10. In sub-paras VI & VII of para-29 of the aforesaid judgement it was held that in case application was not submitted within a period of five years from the date of death of the deceased employee the power conferred upon the authorities to relax the period in a case of undue hardship and taking into consideration the aforesaid aspect of the matter, the same should be referred before the State Government for taking appropriate action in the matter.

11. In this view of the matter, the Court is of the opinion that in place of rejecting the claim of the petitioner seeking his compassionate appointment, the respondent no.3 should refer the matter to the respondent no.1-Secretary (Basic Education), Government of U.P. at Lucknow.

12. In this view of the matter, the order passed by the respondent no.3-District Basic Education Officer, Kushinagar dated 20.03.2021 is liable to be set aside and the same is hereby set aside.

13. The respondent no.3 is directed to transmit all the necessary papers and documents pertaining to the petitioner before the respondent no.1-Secretary (Basic Education), Government of U.P. at Lucknow within two weeks from today.

14. Petitioner is also permitted to provide all the papers and documents available with him to the respondent no.1-Secretary (Basic Education), Government of U.P. at Lucknow within the same period.

15. The respondent no.1-Secretary (Basic Education), Government of U.P. at Lucknow is directed to look into the entire aspect of the matter and pass appropriate orders within a period of two months from the date of receipt of aforesaid papers and documents received in his office.

16. It is made clear that respondent no.1-Secretary (Basic Education), Government of U.P. at Lucknow will take the decision strictly in accordance with law.

17. With the aforesaid observations, present writ petition is allowed.

18. Registrar (Compliance) is directed to communicate copy of this order to respondent no.1-Secretary (Basic Education), Government of U.P. at Lucknow and respondent no.3/District Basic Education Officer, Kushinagar forthwith.

Order Date :- 14.2.2025

Pramod Tripathi