Allahabad High Court
Subhash Yadav vs State Of U.P. & Others on 2 November, 2010
Bench: Ferdino Inacio Rebello, A.P. Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court Special Appeal No.1794 of 2010 Subhash Yadav Vs. State of U.P. and others **** Hon'ble Ferdino Inacio Rebello, C.J.
Hon'ble A.P. Sahi, J This appeal is directed against the judgment of the learned single Judge dated 22.10.2010 dismissing the writ petition and upholding the order dated 11.3.2010 passed by the State Government in relation to the claim of the petitioner for being appointed under the compassionate appointment Rules.
The facts, as disclosed in the writ petition and also entailed in the judgment of the learned single Judge, indicate that the appellant's father died-in-harness on 8.8.1994 when the petitioner was only 6 years old. The application for compassionate appointment was made after the appellant became a major on 5.12.2005. The State Government refused to accord relaxation vide order dated 29.6.2007 which has been reiterated in the order dated 11.3.2010. Assailing the same, the appellant filed a writ petition giving rise to the present appeal which has been dismissed after relying on several judgments of the Apex Court and in particular the judgment in the case of State of Haryana Vs. Rani Devi, (1996) 5 SCC 308. The learned single Judge found that no such Rules were available that would allow the benefit of relaxation in moving of an application for compassionate appointment to a minor after attaining the age of majority.
Learned Standing Counsel, on the other hand, submits that there is no vested right in the appellant to claim appointment on compassionate basis and the learned single Judge has found that since the appellant has been able to survive for the past 16 years, therefore, the same is an indicator that the appellant is not in immediate need of any such compassionate consideration hence the learned single Judge has rightly refused to exercise his discretion in favour of the appellant.
Coming to the first contention in relation to the power to be exercised for relaxation, it would be relevant to point out that there is no dispute between the parties that the power to relax the period for moving such an application vests in the State Government as contained in The U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. Rule-5 and Rule-8 of the said Rules is quoted herein below:
"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--
(i)fulfils the educational qualifications prescribed for the post,
(ii)is otherwise qualified for Government service, and,
(iii)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.
(2)As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.
(3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government servant who are incapable for their own maintenance and were dependant of the above said deceased Government servant immediately before his death.
8. Relaxation from age and other requirements.-- (1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.
(2) The procedural requirements for selection; such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards work and efficiency expected on the post.
(3) An appointment under these rules shall be made against an existing vacancy only."
The aforesaid Rules are also applicable in the case of such employees to whom the Rules have been made applicable through relevant Government Orders. The appellant's father was working as a Teacher in a junior High School and there is no dispute that the Rules for compassionate appointment do apply for employees of such institutions including the rule quoted herein above. The same also has an overriding effect as per Rule 4. In the instant case, the order rejecting the claim of the appellant rests on the ground that there is an inordinate delay and, therefore, the Government has decided not to extend the said benefit.
In our opinion, such a blanket reason without considering anything else would not be in conformity with the power so conferred on the respondents. This issue has been extensively dealt with by us in the case of Vivek Yadav Vs. State of U.P. and others, 2010 (7) ADJ Page 1.
The reliance placed by the learned single Judge on the case of State of Haryana Vs. Rani Devi would also not come in the way of the appellant inasmuch as in paragraph No.5 of the said judgment, the Apex Court has categorically held that in many cases application for appointment on compassionate grounds are being made even after 10 - 15 years because on the death of the employee, the applicant was a minor and could not have been appointed. The Apex Court held that such an appointment cannot be made on sympathetic considerations when the regulations framed do not cover or contemplate such appointments.
The Apex Court, however, further in the same paragraph has went on to hold that any such rights for appointment on compassionate basis flows on the basis of Rules, Regulations or some administrative order issued in the form of a resolution or office memorandum. The Court, however, cautioned that such Rules and Regulations should not be violative of Articles 14 and 16 of the Constitution. The claim of compassionate appointment in the case of Rani Devi (supra) was, however, rejected mainly on the ground that the deceased employee was a work-charge appointee and his appointment was in the nature of casual/ad hoc employee which was not covered under any scheme for compassionate appointment.
We have considered the aforesaid judgment and we find that the same is clearly distinguishable and on the contrary the same will have to be construed to have allowed to make compassionate appointments on the basis of the existing Rules. In the instant case, the Rules referred to herein above empower the State Government to relax the time period and which power has to be exercised reasonably and in accordance with the provisions contained therein. This aspect has been explained by us in the case of Vivek Yadav (supra) and, therefore, the judgment in the case of Rani Devi (supra) does not in any way dilute the impact of the 1974 Rules referred to herein above.
The authorities, therefore, do not have to blind foldedly reject the application if it has been moved after 5 years. They have to apply their mind rationally and the discretion has to be exercised keeping in view the other factors relating to the case.
The appellant has categorically stated in paragraph Nos. 23 and 24 of the writ petition that the appellant has been unable to tide away the crisis which he was facing at the time of the death of his father and some more additional factors have added to his misery. Paragraph Nos. 23 and 24 of the writ petition are extracted below:-
"23. That on getting the certified copy of the order dated 18.2.2009 the petitioner submitted the same before the respondent No.2 along with application/ representation dated 25.2.2009 disclosing the facts that the economical crisis is still remain which resulted the death of sole earner the father of the petitioner deceased - employee and also stated there that the petitioner being elder son of deceased-employee has the burden the large family of the petitioner and there is no agricultural land with the petitioner and categorically stated therein that the deceased - employee died leaving behind two sons, widow and 4 daughters. Thus, there is large family and also categorically stated that two younger sisters Geeta and Neeta and how was married in the year 2003 and 2004 and to get the marriage the petitioner took a loan about Rs.2,00,000/- from some persons and till date the debt could not be cleared of as there is no source of income in the family. Thus, the crisis to still there and the case of the petitioner is required to be considered under Rule-5 of Dying-in-Harness Rules and the State Government required to relax the limitation. A copy of the application dated 25.2.2009 is being filed herewith and marked as Annexure No.10 to this writ petition.
24. That the State Government vide order dated 11.3.2010 without affording opportunity of hearing to the petitioner and without considering the plea taken in the representation dated 25.2.2009 rejected the claim of the petitioner on the ground of limitation that the petitioner has moved application beyond the period of 5 years. A true copy of the impugned order dated 11.3.2010 passed by Special Secretary is being filed herewith and marked as Annexure no.11 to this writ petition."
A perusal of the same would, therefore, leave no room for doubt that the appellant had explained his pecuniary conditions before the State Government and the authorities as also before the learned single Judge which has not been taken notice of at all. The orders by the authorities have been passed merely on the ground of limitation alone.
Accordingly, in view of the reasons given herein above, we are of the opinion that the order passed by the State Government on 11.3.2010 and preceeded by the order dated 29.6.2007 are unsustainable. Since the learned single Judge has also not taken notice of the aforesaid factors as explained by us, the impugned judgment dated 22.10.2010 also cannot be sustained. Accordingly, the judgment dated 22.10.2010 and the order passed by the State Government dated 11.3.2010 are set aside. The matter shall stand remitted back to the Respondent No.1, who shall again proceed to examine the claim of the appellant in the light of the observations made herein above and pass appropriate orders within a period of 8 weeks from the date of production of a certified copy of this order before him.
The appeal is, accordingly, allowed.
Dt. 2.11.2010 Irshad