Allahabad High Court
Ramu vs State Of U.P. And 7 Others on 27 January, 2020
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - A No. - 1363 of 2020 Petitioner :- Ramu Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Rahul Srivastava,Shailendra Kumar Pathak Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Rahul Srivastava, learned counsel for the petitioner and the learned standing counsel for the State respondents.
Briefly stated facts of the present case are that the father of the petitioner, namely Kisan Lal was a class IV employee in the respondent no. 7 institution and during tenure of his service, he died on 18.8.2014. At the time of death of the aforesaid Kisan Lal, his dependent son i.e. the petitioner was aged about 13 years. His date of birth is 7.8.2001. He attained the majority on 8.8.2019 as evident from the copy of the High School Marks Sheet filed as Annexure No. 4 to the writ petition. On attaining the majority, the petitioner appliedbefore the District Inspector of Schools, Etah on 12.8.2019 i.e. within four days on attaining the majority, for appointment on compassionate ground under the Dying-in-Harness Rules, 1974. His application has been rejected by the respondent no. 4 by the impugned order on the ground that the application for compassionate ground has been made after expiry of five years from the date of death of the deceased employee.
Perusal of the impugned order shows that the respondent no. 4 has not considered at all that the petitioner attained the majority on 8.8.2019 and immediately within four days he applied for compassionate appointment. The respondent no. 4 also not recorded any finding on the point of undue hardship.
As per proviso to Rule 5 of the Rules, 1974, the power to relax the delay in making application for compassionate ground vests in the State Government. In the case of Shiv Kumar Dubey & others Vs. State of U.P. & others, AIR 2015 All 47 (FB) (paragraphs 5 & 28), the Full Bench of this Court considered the similar controversy and held as under:-
"5. The Rules have been framed by the State Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The Rules make it abundantly clear that the purpose and object underlying the provision for compassionate appointment is not to reserve a post for a member of the family of a deceased government servant who has died while in service. The basic object and purpose is to provide a means to alleviate the financial distress of a family caused by the death of its member who was in government service. This is the underlying theme or thread which cuts across almost every provision of the Rules. Firstly, the spouse of the deceased government servant must not already be employed in the Central or State Governments or their Corporations. If the spouse is so employed, then obviously, there would be no warrant to grant compassionate appointment since the spouse would be expected to provide to the members of the family a nucleus for sustaining their livelihood. Secondly, the applicant himself should not be employed with the Central or State Governments or their Corporations. Thirdly, an application for appointment has to be made within five years from the date of death of the government servant. The rationale for imposing a limit of five years beyond which an application cannot be entertained is that the purpose of compassionate appointment is to bridge the immediacy of the loss of an earning member and the financial distress that is sustained in consequence. A lapse of time is regarded by the Rules as leading to a dilution of the immediacy of the requirement. The first proviso to Rule 5, however, confers upon the State Government a discretion to dispense with or relax the requirement of submitting an application in five years. This power is not unguided and is not left to the arbitrary discretion of the decision-making authority. Every discretionary power in public law has to be structured on objective principles. The first proviso requires the Government to be satisfied that the strict application of the norm of five years for submitting an application would cause undue hardship. The dispensation or relaxation is in order to deal with a case in a just and equitable manner. Under the second proviso, the burden has been cast on the applicant to furnish reasons and produce a justification together with evidence in the form of documents and proof in support of the cause for the delay in making an application within the stipulated period. Finally, on this aspect of interpretation, it must be emphasized that an applicant for employment under the Rules has to disclose in a full, true and candid manner, details of the financial condition of the family as well as all relevant details pertaining to the members of the family of the deceased including their names, age and status in regard to their marriage, employment and income. All these aspects have a bearing on the financial need of the family which has to be assessed before a decision is taken to grant compassionate appointment. The discretionary power to relax the time limit of five years is in the nature of an exception. It is a power which is vested in the State Government, a circumstance which is indicative of the fact that the subordinate legislation expects it to be exercised with scrupulous care. Ordinarily, the time limit of five years governs. The State Government may relax the norm on a careful evaluation of the circumstances mandated by the second proviso. It is but a matter of first principle that a discretionary power to relax the ordinary requirement should not swallow the main or substantive provision and render the basic purpose and object nugatory. The Rules indicate, in consequence, that an application for compassionate appointment, which is in relaxation of the normal recruitment Rules, must be made within a period of five years of the date of death of the government servant. But the State Government is conferred with a discretionary power to relax the requirement of five years in order to alleviate a situation of undue hardship so as to deal with a case in a just and equitable manner. The satisfaction of the State Government before it exercises the power of relaxation is not a subjective satisfaction but must be based on objective considerations founded on the disclosures made by the applicant for compassionate appointment. Those disclosures, in writing, must necessarily have a bearing on the reasons for the delay and on whether undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused 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 including the income of the family, its financial condition and the extent of dependency. "
"28. 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."
In view of the aforequoted Full Bench judgment of this Court, the impugned order cannot be sustained and is hereby quashed. The matter is remitted back to the respondent no. 2 to take immediate steps for seeking relaxation from the State Government under the proviso to Rule 5 of the Rules, 1974 within two weeks from the date of submission of a certified copy of this order. The State Government shall consider the matter of the petitioner in accordance with law and take an appropriate decision within next four weeks and shall communicate its decision to the respondent no. 4. Thereupon the respondent no. 4 shall pass a fresh order in accordance with law within next two weeks.
With the aforesaid direction, the writ petition is disposed of.
Order Date :- 27.1.2020 Arif