Allahabad High Court
Akhilesh Kumar Yadav vs State Of U.P. And 3 Others on 18 October, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 29094 of 2014 Petitioner :- Akhilesh Kumar Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Yadav Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the records.
By means of the present petition, the petitioner seeks for quashing of the order dated 23.01.2014 passed by the Special Executive Officer, Government of U.P., Lucknow (respondent No.2) and the consequential order dated 12.02.2014 passed by the Superintendent of Police, G.R.P. Railway, Lucknow.
The relevant facts are that after death of the petitioner's father on 07.11.2003, his mother gave an application on 15.10.2008 to grant appointment to his son namely Akhilesh Kumar Yadav. The deceased was survived by his wife and four sons. Vide order dated 22.10.2008, the respondent No.4 required certain documents. There was contemplation for medical examination for the post of Sub Inspector (Ministerial) vide order dated 06.06.2011. However, the matter, thereafter, remained pending and nothing had transpired for a period of one and a half year. In the meantime, the petitioner had completed graduation and pressed his pending claim for compassionate appointment by filing a representation dated 27.09.2012. By a communication dated 29.09.2012, the petitioner was directed to submit his 36 points check list for consideration of his claim. He was further directed to get the medical test by the communication dated 22.12.2012. There was a lull for a period of two years after which the petitioner had received order dated 23.01.2014 for rejection of his claim for compassionate appointment. The said order passed by the respondent No.2, the Special Executive Officer, Government of U.P. Lucknow and the consequential order dated 12.02.2014 are being challenged in the present petition.
Categorical submission of learned counsel for the petitioner is that the reason for rejection of claim of the petitioner for appointment under dying-in-harness Rules are unsustainable, in as much as, only ground is that the application was made with delay and further the wife of the deceased was getting family pension and that the family of the deceased employee owned 6th Bighas agricultural land.
The contention is that the order of rejection has been passed without application of independent mind by the respondent No.2. A Full Bench of this Court in Shiv Kumar Dubey Vs. State of U.P. & others1 has held that the State Government has to take a decision after consideration of all the facts brought before it. The delay in making the application within the period of five years could not be sole ground for rejection of claim for compassionate appointment, in as much as, the power is with the State Government to relax five years statutory period. For exercise of power of relaxation, the State Government has to consider all circumstances brought before it by the applicant and take a decision on objective considerations to the facts of each case.
Submission is that the fact that wife of the deceased employee was getting family pension and that the family of five adults own small patch of agricultural land could not be sufficient reasons to reject the claim for compassionate appointment. There is no consideration to the circumstances brought before the respondent No.1.
Having considered the submissions of the learned counsel for the parties and perused the records, it would be apt to go through the rules pertaining to the compassionate appointment. Rule 5 of the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 is quoted as under:-
"Rule-5. Recruitment of a member of the family of the deceased.--
(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-fulfils the educational qualifications prescribed for the post, is otherwise qualified for Government service; and makes the application for employment within five years from the date of the death of the Government servant:
Provided 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.
Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.
(2) As far as possible, such an employment should be given in department in which the deceased Government servant was employed prior to his death.
(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves."
Further, while considering the power of the State Government in the matter of grant of relaxation of period of five years in making application, the Full Bench of this Court in Shiv Kumar Dubey1 has held as under:-
"(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."
Five years period mentioned in Rule 5 applies ordinarily in an application for compassionate appointment after death of an employee. The first proviso to Rule 5, however, confers to the State Government to relax the statutory period in a case of undue hardship while dealing with the case in a just and equitable manner.
Thus, under the first proviso to Rule 5 "undue hardship" occurring to the family of the applicant is the relevant consideration for relaxation of time limit of five years.
As held by the Full Bench in Shiv Kumar Dubey1, the burden to establish undue hardship occurred to the family in case of delay in making the application within the period of five years, is on the applicant who has to justify his claim supported by documentary and other evidences. The State Government further considering all the facts brought before it has 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. It is the duty of the applicant to bring all necessary circumstances before the State Government when seeking relaxation. At the same time, if undue hardship has not been considered in refusal for relaxation of statutory limitation, then the decision of the State Government would be based upon irrelevant consideration and is liable to be set aside being arbitrary and violative of Article 14 of the Constitution of India.
In Subhash Yadav Vs. State of U.P2, it is held that the authorities cannot reject the application "blindfold" if it had been moved after five years and were required to apply their mind rationally, exercising the discretion considering all the factors relevant to the case.
As has been observed in Antariksha Singh Vs. State of U.P. & others3 that it is settled law that in the nature of function and duties of statutory authority, they must be exercise their power in a fair reasonable non-discretionary and objective manner. It is the duty to act fairly and reasonably which has a facet of 'Rule of Law' in a constitutional democracy like ours. Arbitrariness has no place in the policy decision as it strikes at the root of Article 14 of the Constitution of India.
Further a Division Bench of this Court in Sudhir Kumar Mishra Vs. State of U.P.4 had held that the expression "undue hardship" though not defined in the Rules but would necessarily postulate a consideration of relevant facts and circumstances of the case; such as 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 income from any other sources if received. The idea is to see whether the family continues to suffer financial distress and hardship occasioned by the death of the bread winner. The relaxation of statutory period for consideration of application can be given only after consideration of all above factors so as to satisfy whether the family faced adverse circumstances and the delay in making application was beyond their control.
In the light of the above legal position, in the facts of the present case, it is found that the relevant factors such as undue hardship faced by the family of the deceased employee and cause of delay as per proviso to Rule 5 of Rules' 1974, has not been considered by the State Government. The order for rejection of the application being based on irrelevant consideration is found arbitrary and illegal and is, therefore, set aside.
In the result, the writ petition succeeds and allowed.
The respondents are directed to place the matter before the State Government for fresh consideration. The State Government is further directed to reconsider the claim of the petitioner for compassionate appointment for relaxation of the statutory limitations period considering undue hardship continuing to the family on account of death of the sole bread earner and take a decision within a period of two months from the date of production of certified copy of this order.
Order Date :- 18.10.2019 Himanshu