Hemlata vs State Of Uttarakhand And Others
2021 Latest Caselaw 2630 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL

              Writ Petition (S/S) No. 518 of 2021
Hemlata                                                 ...      Petitioner
                               Vs.
State of Uttarakhand and others                         ... Respondents
Advocates :   Mr. Mehboob Rahi, Advocate, for the petitioner.
              Mr. N.P. Sah, Standing Counsel, for the State
              Ms. Pooja Tiwari, Advocate, holding brief of Mr. Dharmendra
              Barthwal, Advocate, for respondent Nos. 2 to 5


Hon'ble Sharad Kumar Sharma, J.

(Via Video Conferencing) The petitioner has preferred this writ petition praying for the following reliefs:-

"I. Issue a writ order or direction in the nature of Mandamus directing the respondents to give appointment to the petitioner on compassionate ground under Dying in Harness Rules on a suitable post as per her educational qualification.

II. To issue any other order or direction which this Hon'ble Court may deem fit and proper.

III. Award cost of the petition."

2. In fact, the relief sought for was in the nature of mandamus, commanding the respondents to grant appointment to the petitioner on compassionate grounds.

3. It is needless to say that the sole purpose and intention for granting appointment on compassionate grounds, are in order to meet the emergent financial contingency, which the family of the deceased employee faces on account of the death of a breadwinner. However, factually, in the present case, the father of the petitioner had met with the sad demise on 31.10.1995 i.e. even much prior to the creation of the State of Uttarakhand or the constitution of the respondent-corporation.

4. If at all there was any lien for the petitioner to apply for appointment on compassionate grounds, within the prescribed period of 5 years, provided under the Rules, that would have accrued qua the U.P. Power Corporation Limited.

5. Be that as it may. The answer to this query given by the learned counsel for the petitioner is that the petitioner was minor at the time when her father had met with the sad demise on 31.10.1995, and the learned counsel for the petitioner submits that upon attaining the age of majority, the petitioner had filed an application for appointment on compassionate grounds only on 27.08.2004. Though, the application appended with the writ petition does not bear any date, but even if it is presumed that the petitioner has applied in 2004, and she was not considered for being granted appointed on compassionate grounds, there is no logic or reasoning attached to the argument extended by the learned counsel for the petitioner, as to why the petitioner has invoked the writ jurisdiction in 2021, because the time slot between 1995 to 2021 i.e. of 17 years, itself defeats the very purpose and intention of the legislation of appointment on compassionate grounds, as it has been envisaged by the judgment rendered by the Hon'ble Apex Court in the judgment reported in 2003 (7) SCC 511, State of Manipur Vs. Md. Rajaodin. The relevant paras of the said judgment are extracted hereunder:-

"9. Admittedly, the respondent's father died before the Office Memorandum came into operation. In the memorandum a time period is stipulated. Since the scheme itself was not in operation when the respondent's father died, the time stipulation as provided in the scheme would not be strictly applicable to the case of the respondent and anyone seeking for relief thereunder has to at least move within the time stipulated commencing from the date of the order. Nevertheless, keeping in view at any rate the object for which such appointments which are also compassionate appointments are made the minimum requirement is that the request for appointment should be made as expeditiously as the circumstances warrant. It could not be brought to our notice whether there was any scheme in operation prior to the scheme of 1984 referred to above. As the

appointments of such nature envisaged under the said scheme are made to tide over immediate difficulties, there is an inbuilt requirement of urgency in making the application. Though it was contended that the respondent was a minor at the time of his father's death, it is to be noted that he was of 10 years of age in 1980 when his father died. Even if a responsible period after he attained majority is taken, certainly the application on 25.7.1997 seeking appointment was highly belated.

11. In Smt. Sushma Gosain and Ors. v. Union of India and Ors., [1989] 4 SCC 468, it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of the father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was re-iterated in Phoolwati (Smt.) v. Union of India and Ors., [1991] Supp. 2 SCC 689 and Union of India and Ors. v. Bhagwan Singh, [1995] 6 SCC 476. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors., [1998] 5 SCC 192, it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision."

6. In Dhalla Ram Vs. Union of India and others, reported in AIR 1999 SC 564, wherein, in the first authority, which has been referred to above, the Hon'ble Apex Court has held that if a person claiming an appointment on compassionate grounds, was a minor at the time of the death, that in itself will not be a ground to entertain the application beyond the prescribed period provided under the Rules. Apart from that, the delay which has chanced in

filing the writ petition itself is not condonable in view of the ratio laid down in the case of Dhalla Ram (Supra), the relevant para is extracted hereunder:-

"1. This Special Leave Petition arises from the order of the Central Administrative Tribunal, made on 12-7-1998 dismissing petitioner's application for appointment on compassionate grounds. The father of the petitioner died on December 13, 1965 on which date the petitioner was below 6 years. He attained majority, on his own statement, on July 12, 1997, when he completed 18 years of age. He made an application on July 15, 1987 for his employment on compassionate grounds. The very object of making appointment on compassionate grounds is to rehabilitate the family in distress of the deceased employee who dies in harness. There should be no difficulty to consider an eligible candidate for providing immediate sustenance to the members of the deceased employee. He had applied on July 15, 1987 and the application was rejected on July 14, 1988. He filed the OA on July 12, 1993. In view of the long delay, after the refusal by the Government, in filing the application, the same cannot be entertained. The appointment on compassionate grounds is not a method of recruitment but is a facility to provide for immediate rehabilitation of the family in distress for relieving the dependent family members of the deceased employee from destitution."

7. In view of the aforesaid reasoning since the very purpose of grant of compassionate appointment having being sought at a highly belated stage i.e. after 26 years of death, it defeats the very purpose of the legislative social and welfare intent of the Rules of 1974 of the Compassionate Appointment Rules, as applicable to the Corporation for the aforesaid reasons, this Court is not inclined to interfere in writ petition in the exercise of its discretionary and extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 27.07.2021 Mahinder/