Allahabad High Court
Sachin Kumar vs State Of U.P. And 5 Others on 15 July, 2021
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Case :- WRIT - A No. - 21498 of 2019 Petitioner :- Sachin Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Atipriya Gautam, Abhishek Kumar, Vijay Gautam (Senior Adv.) Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
Heard Sri Vijay Gautam, Senior Advocate, for the petitioner and learned Standing Counsel for the State-respondent.
The present petition has been filed by the petitioner alleging that the father of the petitioner late Latur Singh, who was working as Constable in the U.P. Police Department, died on 10.3.1997 while in service. At the time of death of the father, the petitioner was minor and about 5 years of age.
It is claimed that after attaining the majority the petitioner filed an application for appointment under the Dying-in-Harness Rules, 1974 on 20.1.2013 as the petitioner had attained the majority in the year 2012. It is stated that in terms of the provisions for appointment under Dying-in-Harness Rules, 1974 an application is to be moved within a period of five years from the date of death of employee, however, a discretion is vested in the State Government to consider the application after the period of 5 years on valid grounds. As the application of the petitioner was filed after five years, the matter was remitted to the State Government for consideration of relaxation of the period which was rejected vide order dated 26.7.2017. The said order is under challenge in the writ petition.
A perusal of the said order reveals as the Rules provide for a particular period of limitation and the application has been moved after 11 years of the statutory period coming to an end, no rational existed for condoning the delay.
The counsel for the petitioner places reliance upon the judgement of this Court passed in Special Appeal (Defective) No. 942 of 2018 (State of U.P. and others vs. Antariksha Singh) decided on 14.5.2019 wherein this Court considered a similar matter and after considering the provisions of the Rules and the law applicable directed as under:
"At this juncture, it would also be appropriate to state that while considering the case of undue hardship several factors are required to be kept in mind including economic status of the family, the term of relaxation desired and the stage on which relaxation is claimed.
As already stated, learned single Bench has directed to forward the case of the respondent-petitioner to examine undue hardship without arriving at the conclusion that whether any relaxation is claimed by her or not by pleading the undue hardship.
In view of it, we deem it appropriate to modify the directions given by learned single Bench to the extent that case of the respondent-petitioner for compassionate appointment shall be forwarded to the State Government to consider the grant of relaxation as per first proviso to Rule 5 of the Rules of 1974 if any undue hardship has been pleaded with a specific request for relaxation of time period prescribed under the rule concerned by satisfying the requirements of second proviso to Rule 5 of the Rules of 1974."
He further relies upon the judgement of this Court in the case of Antarikasha Singh vs. State of U.P. and others, [2018 (Suppl.) ADJ 500] wherein this Court, after considering the scope of the word "undue hardship" as used in the Rule 5 of the Dying-in-Harness Rules, set aside the order of the State Government and remanded the matter for fresh adjudication in the light of directions given in the said judgement. He also places reliance upon the judgement of this Court in the case of Sudhir Kumar Mishra vs. State of U.P. and others, [2016 (8) ADJ 639 (DB) (LB)] wherein this Court has observed as under:
"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, 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.
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."
Considering the fact that the order impugned in the present writ petition does not consider the ''undue hardship" faced by the petitioner, the writ petition deserves to be allowed on that ground alone. Accordingly, the order dated 26.7.2017 passed by the Deputy Inspector General of Police, Establishment, Uttar pradesh Police Headquarters, Allahabad (respondent no. 4) is set aside and the matter is remanded back before the respondent no. 1 to take a fresh decision on the application in the light of the law laid down in the judgements as indicated above.
The petition stands disposed off.
Copy of the order downloaded from the official website of this Court shall be treated as certified copy of this order.
Order Date :- 15.7.2021 Puspendra