Uttarakhand High Court
8Th November vs State Of Uttarakhand & Another on 18 November, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
2024:UHC:8549
HIGH COURT OF UTTARAKHAND AT
NAINITAL
HON'BLE SRI JUSTICE RAKESH THAPLIYAL
WRIT PETITION (S/S) NO. 629 OF 2023
18TH NOVEMBER, 2024
Shrishti Shah .....Petitioner.
Versus
State of Uttarakhand & another ....Respondents.
Counsel for the Petitioner : Mr. Tapan Singh, learned
counsel.
Counsel for the State : Mr. Pradeep Hairiya,
learned Standing Counsel.
The Court made the following:
JUDGMENT:
(per Hon'ble Justice Sri Rakesh Thapliyal)
Petitioner is challenging the order dated
01.08.2022, passed by the District Education Officer
(Elementary Education), Pauri Garhwal, whereby the
petitioner's claim for seeking compassionate
appointment due to death of her mother, who died on
18.10.2013 in-harness, was rejected merely on the
ground that the petitioner's date of birth is 13.06.2004,
and there is limitation of five years for claiming the
compassionate appointment in view of Uttar Pradesh
Recruitment of Dependents of Government Servants
Dying in Harness Rules, 1974, as amended in the year
2010.
2. Learned counsel for the petitioner submits
that there was no occasion for the respondents to
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reject the claim of the petitioner for compassionate
appointment, since her claim was matured on the date
when she becomes major. He further submits that since
the petitioner became major in the year 2022,
therefore, her claim for seeking compassionate
appointment cannot be rejected on the ground of delay.
In reference to this, he placed reliance on the judgment
of the Division Bench of the Allahabad High Court
(Lucknow Bench) in the case of "Sudhir Kumar
Mishra vs. State of U.P. & others", 2016 (5) AWC
4772. He particularly refers to Paragraph Nos.21 to 23
of the said judgment, which are being reproduced here-
in-below:-
"21. In the instant case, the petitioner submitted
that when his father died he was only 4 years old and
his mother informed the department that she would
make application in prescribed from only when he
attained majority. The department negatived the
representation in this matter taking stand that the
application was not made within prescribed period.
However, the petitioner's request for compassionate
appointment was made soon after appellant attained
majority. Under Rule 5 the time limit within which the
dependant of the deceased employee is to be
accommodated is fixed as five year. This period can be
extended under proviso to Rule 5 where burden of
proving the fact that compassionate circumstances
continued to exist even till date was on the petitioner
himself which he has successfully discharged in this
case. There is sufficient evidence of the petitioner
having aged and ailing mother, two unmarried sisters,
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the family having pension as the only source of
livelihood, the agricultural land being barren causing
nugatory income of about 9000/- per year, which
appeared quite insufficient to enable the family to get
over the financial crisis which is being faced by the
family after the death of his father.
22. On the basis of objective considerations
founded on the disclosures made by the petitioner in
this case for compassionate appointment and having
considered the reasons for the delay, we are of the
opinion that undue hardship within the meaning of the
first proviso to Rule 5 of the Rules would be caused to
the petitioner and his family by the application of the
time limit of five years. The expression 'undue hardship'
has not been defined in the Rules. Undue hardship
would necessarily postulate a consideration of relevant
facts and circumstances of the case. In view the income
of the family, its financial condition, the extent of
dependency and marital status of its members, its
liabilities, the terminal benefits received by the family;
the age, together with the nugatory income from any
other sources in this case, we are of the view that the
family continues to suffer financial distress and hardship
occasioned by the death of the bread winner.
Considering the penurious condition of the family, it
appears to be one of the rarest of rare cases where due
to exceptional circumstances the family needs the
extraordinary remedy to elate the condition of family. It
would be appropriate to deal with the case of the
petitioner in a just and equitable manner.
23. In the result, we allow the appeal and in
reversal of the order of the Learned Single Judge of this
Court, we direct respondent No. 3 to consider the case
of Sudhir Kumar- appellant for compassionate
appointment within two months from the date on which
the certified copy of this order is made available to the
respondent No.3 by petitioner along with his
representation."
2024:UHC:8549
3. The judgment of the Division Bench of the
Allahabad High Court (Lucknow Bench) in Sudhir
Kumar Mishra (supra) was further followed by the Full
Bench of the Allahabad High Court in the case of "Shiv
Kumar Dubey & others vs. State of U.P. & others",
2014 (1) UPLBEC 589, wherein certain principles
were formulated, which govern the issue of
compassionate appointment. Paragraph No.29 of the
said judgment is relevant, which formulated the
principles is being quoted here-in-below:-
"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
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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
2024:UHC:8549
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."
4. Mr. Hairiya, learned State Counsel fairly
submits that, in fact, the issue of limitation should not
come in the way of a person, who is claiming
compassionate appointment after becoming major.
5. Apart from this, he also fairly submits that
the principles formulated by the Full Bench of the
Allahabad High Court in the case of Shiv Kumar
Dubey (supra) have to be followed.
6. After hearing the arguments of learned
counsels for the parties, and after taking into
consideration the judgment passed by the Division
Bench of the Allahabad High Court (Lucknow Bench) in
the case of Sudhir Kumar Mishra (supra), which was
further followed by the Full Bench of the Allahabad High
Court in the case of Shiv Kumar Dubey (supra), this
Court is of the view that the order impugned cannot
sustain, and the same is, hereby, quashed.
7. The respondents are directed to consider the
2024:UHC:8549
claim of the petitioner for compassionate appointment
strictly as per the Rules, and further taking into
consideration her eligibility, and if the vacancy is not
available, the respondents shall create supernumerary
post for giving compassionate appointment to the
petitioner within a period of six weeks from the date of
production of a certified copy of this judgment.
8. The writ petition is allowed in the above
terms.
9. Pending application, if any, also stands
disposed of.
(RAKESH THAPLIYAL, J.)
Dated: 18th November, 2024
NISHANT
NISHANT
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH
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cdc00ec2b7462b452b326, postalCode=263001,
KUMAR
st=UTTARAKHAND,
serialNumber=7E81318F3B1BE7EAAC9370185F7C9C20892B
C63A055CFD1961690560487E670C, cn=NISHANT KUMAR
Date: 2024.11.22 10:38:37 +05'30'
