SPA/242/2021
2021 Latest Caselaw 3632 UK

       IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL


 THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                                AND
            THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA




                  SPECIAL APPEAL NO. 242 OF 2021

                            16th September, 2021

 Between:

 Tushar Kumar                                    ......          Appellant

 and

 Government of Uttarakhand & others ......                      Respondents

Counsel for the appellant : Ms. Shruti Joshi, learned counsel

Counsel for respondents : Mr. S.S. Chauhan, learned Deputy Advocate General for the State

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

The appellant has challenged the legality of

the order dated 25.06.2021, passed by learned Single

Judge, in Writ Petition (S/S) No. 686 of 2021, whereby

the learned Single Judge has dismissed the writ petition,

inter alia, on the ground of delay and laches.

2. Briefly, the facts of the case are that the

petitioner's father, Mr. Sunil Kumar, was working as a

sweeper / Class IV employee with the respondent

department. While in harness, on 23.01.2012, the

petitioner's father suddenly expired. At the relevant

time, the petitioner was a minor. The petitioner had

already lost his mother prior to the loss of his father.

Therefore, the petitioner and his younger sister were

being looked after by his grandmother, Smt. Kamla

Devi. Immediately after losing the petitioner's father,

the petitioner's grandmother submitted a representation

to the Principal, Government Inter College, wherein she

pointed out that she is an old lady, who has retired as a

Class IV employee from the Municipality, and is receiving

a pension of merely Rs. 1,300/- per month. She is

saddled with the responsibility of looking after both the

petitioner and his sister. Therefore, she prayed that the

petitioner should be appointed on compassionate ground

after he reaches the age of majority.

3. On 06.10.2016, the petitioner also submitted

a representation before the Principal of the College,

wherein he clearly stated that he will become a major

person within a period of two years. Therefore, his case

for appointment on compassionate ground should be

considered thereafter. Having reached the age of

majority in 2018, by representation dated 11.09.2018,

the petitioner again requested the Principal to appoint

him on compassionate ground. However, by order dated

16.02.2019, the petitioner's application has been

rejected by the District Education Officer, Primary

Education, Tehri Garhwal, the respondent No. 3,

ostensibly, on the ground that the said application was

filed after five years of the death of the petitioner's

father. Therefore, it was filed beyond the period of

limitation as mentioned in the Uttar Pradesh Recruitment

of Dependants of Government Servants Dying in Harness

Rules, 1974 (hereinafter referred to as the 'Rules of

1974'). Since the petitioner was aggrieved by the order

dated 16.02.2019, he filed a writ petition before the

learned Single Judge as mentioned here-in-above. By

order dated 25.06.2021, the learned Single Judge had

dismissed the said writ petition. Hence, the present

special appeal before this Court.

4. Ms. Shruti Joshi, the learned counsel for the

appellant, submits that according to the Rule 5 of the

Rules of 1974, firstly, the period of limitation prescribed

for submission of the application can be relaxed by the

Government in case of hardship.

Secondly, at the time of the death of the

petitioner's father in 2012, the petitioner was a minor

child. Obviously, immediately after the father's death,

the petitioner could not have been appointed. It is only

after he reached the age of majority on 15.09.2018, that

the petitioner applied for said job.

Thirdly, that the petitioner is equally saddled

with the responsibility of having to look-after his aged

grandmother and his younger sister. Therefore, it is a

case of dire hardship, where the petitioner is required to

feed not only himself but also two other family

members. Yet he is a young man, he is living without

any job. Therefore, the benefit of the Proviso of Rule 5

should have been given to the petitioner and his

application for appointment on compassionate ground

should have been considered by the Principal.

Lastly, that once a representation was made

to the Principal, he was required to send the said

representation to the State Government for granting the

age relaxation as mentioned in Rule 5 Proviso of the

Rules of 1974. However, the said procedure has not

been followed by the respondent. According to the

learned counsel, these facts have not been appreciated

by the learned Single Judge in proper perspective.

Therefore, the impugned order deserves to be set aside

by this Court.

5. On the other hand, Mr. S.S. Chauhan, the

learned counsel for the State, submits that, in fact, the

petitioner should have filed the application within five

years of the death of his father. Therefore, the

impugned order dated 16.02.2019 is legally justified.

6. Heard the learned counsel for the parties,

perused the impugned order passed by learned Single

Judge, and examined the documents submitted by the

appellant.

7. Admittedly, the petitioner's father died in

harness on 23.01.2012. Undoubtedly, the petitioner was

a minor boy on the said date. By representation dated

17.04.2012, the representation filed by the petitioner's

grandmother, immediately after the death of petitioner's

father, even Smt. Kamla, the grandmother, had

informed the Principal that the dependants of the

deceased employee are minor. Therefore, she had

prayed that the petitioner should be given appointment

on compassionate ground, once he reaches the age of

majority. Even two years prior to reaching the age of

majority, by representation dated 21.09.2016, the

petitioner had informed the Principal that within two

years he would, indeed, reach the age of majority.

Having reached the age of majority, on 11.09.2018, the

petitioner had also filed a representation seeking an

appointment on compassionate basis. Even in his

representation dated 16.08.2019, he had pointed out

that he is saddled with the responsibility of looking after

both his grandmother and his younger sister. Yet,

despite the fact that the petitioner's case is a case of

dire hardship, by impugned order dated 16.02.2019, the

petitioner's case has been rejected.

8. The rules with regard to compassionate

appointment are a social beneficial piece of legislation.

Therefore, these rules must be applied as liberally as

possible. The Rules were framed with the view to rescue

a family, which has suddenly lost its sole bread earner.

In order to rescue a family from the financial crises, it

was stipulated that the application for seeking

appointment on compassionate ground should be filed

within five years of the death of the employee.

Obviously, Rule 5 does not require that the application

should be filed immediately after the death. Moreover,

Rule 5, First Proviso, clearly states 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."

Therefore, in order to ensure that the family is duly

rescued, even if an application were made beyond the

period of five years, the State Government has ample

power to relax the limitation of five years in order to be

just and equitable to such a person.

9. Surprisingly, in the present case, even after

the petitioner had made a representation to the Principal

in 2018, the Principal did not forward the said

representation to the State Government for granting a

relaxation under the Proviso to Rule 5 of the Rules of

1974. Moreover, without realizing the fact that the

petitioner is facing undue hardship, without ensuring just

and equitable treatment to the petitioner, his case has

been rejected by the order dated 16.02.2019.

10. Therefore, this Court is of the opinion that the

impugned order dated 16.02.2019 has been passed

without considering the beneficial nature of Rule 5 of the

Rules of 1974.

11. The learned Single Judge had dismissed the

writ petition, ostensibly, on the ground that it was hit by

delay and laches. However, the facts narrated here-in-

above, especially, the fact that immediately after the

death of petitioner's father, the grandmother had

informed the Principal that both the children are minor,

considering the fact that the petitioner himself had

applied for seeking an appointment immediately after

becoming a major, considering the fact that even after

the rejection of his case, by representation dated

16.08.2019, the petitioner had again sought an

appointment on compassionate ground, it cannot be

concluded that the petitioner has been lax in pursuing

his remedies. Therefore, the conclusion drawn by the

learned Single Judge is unsustainable.

12. For the reasons stated above, this Court set

aside the impugned orders dated 30.10.2018 and

16.02.2019. This Court directs the petitioner to file a

fresh representation before the Secretary, School

Education, Uttarakhand. The Secretary, School

Education, is directed to decide the said representation

within a period of two months from the date of receipt of

the representation. He is further directed to give an

opportunity of personal hearing to the petitioner. He is

further directed to keep in mind that Rule 5, First

Proviso, does grant the power of relaxation in case of

hardship. Undoubtedly, the case of the petitioner is a

case of hardship. The Secretary, School Education, is

directed to pass a speaking order after considering the

petitioner's case.

13. The Special Appeal stands allowed.

_______________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

_________________ ALOK KUMAR VERMA, J.

Dt: 16th September, 2021 Negi