Allahabad High Court
District Cane Officer District Sambhal ... vs Aman Pathak And Another on 2 September, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:141603-DB Court No. - 29 Case :- SPECIAL APPEAL No. - 633 of 2024 Appellant :- District Cane Officer District Sambhal / Chairman District Cane Service Authority Sambhal Sri Rajeshwar Yadav And Another Respondent :- Aman Pathak And Another Counsel for Appellant :- Ravindra Singh Counsel for Respondent :- Gauri Shankar Yadav,Rajesh Kumar Yadav Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard Ms. Jahnavi Singh, Advocate holding brief of Shri Ravindra Singh, learned counsel for the appellant and Shri Rajesh Kumar Yadav, learned counsel for the respondent-petitioner.
2. The instant intra-court appeal is preferred for setting aside the judgement and order dated 28.05.2024 passed in Writ-C No.15485 of 2023 (Aman Pathak vs. State of U.P. and two others), wherein learned Single Judge had set aside the orders dated 25.09.2023 and 30.09.2023 and remitted back the matter for consideration.
3. Ms. Jahnavi Singh, learned counsel for the appellant vehemently submitted that the compassionate appointment under the compassionate scheme is not meant to be an alternate source of recruitment. It is essentially to reach immediate succor to the bereaved family. In other words, the sudden passing away of an employee creates a financial vacuum in the family and it is meant to lend a helping hand to the genuinely needed members of the bereaved family. It is never meant to be a source of conferring any status or an alternate mode of recruitment. She submits that admittedly, the bread-earner died-in-harness on 13.11.2011 leaving behind widow, three daughters and one son. Admittedly, at the time of death, the widow was working as Anganwadi Karyakarti. The respondent-petitioner has three sisters and meanwhile, two sisters got married. It is claimed that the respondent-petitioner was minor at the time of death of his father. When he attained majority and completed his Intermediate Examination, as an afterthought he moved an application on 10.11.2020. In response to the said application, the appellant-respondents had made various correspondences and the respondent-petitioner had submitted the documents. Eventually, the claim was rejected, which is impugned before learned Single Judge.
4. She further submits that while passing the order impugned learned Single Judge has relied upon the judgement passed by Hon'ble Apex Court in State of W.B. v. Debabrata Tiwari and others, 2023 SCC OnLine SC 219 but the said matter is distinguishable in the facts and circumstances, whereas in case of Debabrata Tiwari (supra) the bread-earner died in the year 2005 and the dependent had immediately moved an application for appointment under Dying-in-Harness Rules and he was diligently pursuing the matter and the authorities were sitting silent. In such situation, the Court had arrived that there was no fault on the part of the dependent of the deceased. Whereas, in the present matter, the death had occurred in the year 2011. The widow was working as 'Anganwari Karyakatri' and meanwhile, two elder sisters also got married. Neither the widow nor the two elder sisters had ever applied for the compassionate employment. Even though the daughters had every right to claim stake for an appointment under Dying-in-Harness Scheme. The entire family waited for attaining the majority of the respondent-petitioner and once he attained majority, then he moved an application after nine years of the death of the bread earner in the year 2020. While passing the order impugned learned Single Judge has taken note that the widow was working as Anganwari Karyakarti and the family had also substantial piece of land for their survival. In support of her submission, she has placed reliance on para-28 of the Full Bench judgment of this Court in Shiv Kumar Dubey and ors vs. State of UP and ors reported in 2014 (2) ADJ 312, wherein the Full Bench had formulated the principles, which must govern compassionate appointment in pursuance of Dying in Harness Rules. She submits that the respondent-petitioner's claim does not fall in any of the category, as enunciated by the Full Bench. For ready reference, paragraph-28 of the Full Bench judgement is reproduced herein 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 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."
5. Per contra, learned counsel for the respondent-petitioner vehemently opposed the instant appeal and submits that learned Single Judge had considered the facts and allowed the writ petition vide impugned judgement and order dated 28.5.2024, which warrants no interference in the intra court appeal.
6. Matter requires consideration.
7. Learned counsel for the respondent-petitioner is accorded three weeks time to file response. Rejoinder Affidavit, if any, may be filed within one week thereafter.
8. List this matter after expiry of the aforesaid period.
9. Till the next date of listing, the effect and operation of order dated 28.05.2024 passed by learned Single Judge in Writ-C No.15485 of 2023 (Aman Pathak vs. State of U.P. and two others) shall remain stayed.
Order Date :- 2.9.2024 S.P.