1. Heard learned Counsel for the petitioner and learned Counsel appearing on behalf of the State.
2. The petitioner has approached this Court challenging the order dated 08.07.2020 passed by the Additional Chief Secretary, Department of Home, Lucknow by which the claim of the petitioner for compassionate appointment as per the law laid down by the Division Bench in Special Appeal No.175 of 2016 (Sudhir Kumar Mishra Vs. State of U.P.) has been denied rejecting the representation of the petitioner which was preferred in compliance of the direction issued a co-ordinate Bench vide order dated 28.01.2020 in Writ Petition No.2394 (SS) of 2005 on the ground that there is no plausible explanation in filing the application for compassionate appointment after two years and seven months and it is clearly evident that the family of the petitioners are capable to earn livelihood since the death of deceased employee.
3. Submission of learned Counsel for the petitioner is that the father of the petitioner was died on 04.06.1994 while he was working on the post of Constable in Police Department. At the time of death of the deceased employee, the petitioner was minor. The date of birth of the petitioner is 25.07.1980. After attaining the age of majority, the petitioner approached the respondents for compassionate appointment but the same was denied by the respondents vide orders dated 28/29.01.2004 and 05.12.2003 which were challenged by the petitioner in Writ Petition No.2394 (SS) of 2005 and vide order dated 28.01.2020, the writ petition was allowed with a direction to the Additional Chief Secretary, Home Department, Government of U.P., Lucknow to consider the petitioner's case for grant of compassionate appointment in terms of the provisions of U.P. Recruitment of Dependents of Government Servant Dying-in-Harness Rules, 1974 (in short '1974 Rules') and the observations made by a Division Bench in Sudhir Kumar Mishra's case (Supra).
4. Learned Counsel for the petitioner has submitted that the respondent no.1 has failed to consider the observations made by the Division Bench in Sudhir Kumar Mishra's case (Supra) and rejected the claim of the petitioner for appointment on compassionate ground and passed the impugned order in cursory manner without applying his mind. The petitioner is entitled for compassionate appointment as he has submitted the application for compassionate appointment within time. The respondent no.1 while passing the impugned order has also not consider the provisions as provided in Section 5 of 1974 Rules and rejected the application of the petitioner illegally.
5. Per contra, learned Counsel appearing on behalf of the State has submitted that after the death of the deceased employee, the wife of the deceased had not made application for compassionate appointment. The elder son who was also entitled for compassionate appointment but had also not moved any application. The date of birth of the petitioner is 25.07.1980 and has attained the age of majority on 25.07.1998 but after lapse of more than two and a half years after attaining the age of majority, the petitioner has applied for compassionate appointment without any specific reason for not moving the application within time which shows that there is no financial hardship in the family of the deceased employee. In the case of Santosh Kumar Dube Vs. State of U.P. (Civil Appeal No.1955) of 2003), Hon'ble Apex Court has held that Dying-in-Harness Rules provided benefit to remove financial hardship to the dependant of deceased employee at once from the date of death of employee, such Rule is neither for a gift nor source of appointment nor a right of employment/ appointment. In this case more than five years have been passed which shows that there is no financial crisis in the family of the petitioner. While passing the impugned order, the respondent no.1 has thoroughly considered the observations made by the Division Bench in the case of Sudhir Kumar Mishra (supra) and rejected the claim of the petitioner by speaking and reasoned order. Hence, there is no infirmity and illegality in the impugned order and as such the petition being lacks of merit is liable to be dismissed.
6. I have considered the submissions of learned Counsel for the parties and perused the record.
7. Vide impugned order dated 08.07.2020, the respondent no.1 has rejected the claim of the petitioner assigning following reasons:
"blh izdkj flfoy vihy uEcj% [email protected] larks"k dqekj nqcs cuke mRrj izns'k ljdkj o vU; tks fnukad& 18-05-2003 dks fu.khZr gqbZ gS] esa Hkh ek0 loksZPp U;k;ky; }kjk ;g fl)kUr ikfjr fd;k x;k gS fd e`rd vkfJr lsok;kstu e`rd ds ifjokj dks rRdky vkfFkZd lgk;rk igq¡pkus ds mn~ns'; ls fn;k tkrk gSA vuqdEik ds vk/kkj ij fu;qfDRk dk vuqjks/k ljdkjh lsod dh e`R;q ds ckn rRdky fd;k tkuk pkfg,A e`rd vkfJr ds #i esa fu;qfDRk dksbZ migkj vFkok HkrhZ dk L=ksr ugha gS vkSj u gh blds fy;s vf/kdkj Lo#i nkok fd;k tk ldrk gSA 11& m0iz0 lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dh HkrhZ fu;ekoyh&1974 ¼;Fkkla'kksf/kr½ esa jktdh; dehZ dh e`R;q dh frfFk ls ikap o"kZ ds vUnj lsok;kstu gsrq vkosnu djus dk izkfo/kku gSA ikap o"kZ ds i'pkr lsok;kstu gsrq fn;s x;s izkFkZuk i= dky&ckf/kr ekus tkrs gSA bl fu;ekoyh ds vUrxZr e`rd ds ifjokj ds fdlh ,d vgZ lnL; dks RkRdky lsok;kstu iznku dj ifjokj dks vklUu vkfFkZd ladV ls cpkus dh Hkkouk fufgr gSA bl fu;ekoyh ds vUrxZr lsok;kstu iznku djus dk ;g mn~ns'; dnkfi ugha gS fd yEcs le; rd lsok;kstu ds vf/kdkj dks lqjf{kr j[kdj LosPNk ,oa lqfo/kkuqlkj lsok;kstu izkIr djus gsrq vf/kd`r fd;k tk,A 12& e`rd vkfJr lsok;kstu ds lEcU/k esa mDr izLrj&[email protected]@10 esa of.kZr ek0 mPp U;k;ky;@ek0 mPpre U;k;ky; }kjk ikfjr U;kf;d O;oLFkkvksa] m0iz0 lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dh HkrhZ fu;ekoyh] 1974 ¼;Fkkla'kksf/kr½ ds izkfo/kkuksa ,oa izLrj&9 esa izkIr fu"d"kZ ds vk/kkj ij tuin y[kuÅ ds Lo0 vkj{kh HkxkSrh izlkn ds vkfJr iq= Jh vk'kqrks"k dqekj dks e`rd vkfJr ds #i esa lsok;kstu iznku fd;s tkus gsrq vkosnu djus ds fy;s fu/kkZfjr 05 o"kZ dh le;&lhek ls NwV iznku fd;s tkus dk vkSfpR; ugha gSA rn~uqlkj fjV ;kfpdk la[;k&2394 ¼,l ,l½@2005] vk'kqrks"k dqekj cuke m0iz0 jkT; o vU; esa ek0 mPp U;k;ky; y[kuÅ csap y[kuÅ }kjk ikfjr vkns'k fnukad 28-01-2020 ds leknj esa ;kph dk izR;kosnu fnukad 11-02-2020 ,rn~}kjk fuLrkfjr fd;k tkrk gSA"
8. As per Rule 3(iii) of 1974 Rules provides for making of an application for employment within five years from the date of the death of the Government servant. Under the proviso thereto, 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.
9. The aforesaid statutory provisions clearly indicates that the State Government is empowered to relax the time limit fixed in case the application is made after a period of five years from the date of death of Government servant.
10. In the present case, the father of the petitioner, namely, Bhagwati Prasad was died on 04.06.1994 during his service period while he was working on the post of Constable in the police department. At the time of death of his father, the petitioner was minor as according to the high school certificate, the date of birth of the petitioner is 25.07.1980, therefore, he could not apply for the job under 1974 Rules. The petitioner had applied for compassionate appointment after attaining the age of majority. It is specifically averred in the writ petition as well as in the rejoinder affidavit that the family of the deceased are facing financial hardship continuously and anyhow they have managed to earn livelihood to survive themselves. As per the report of SHO of concerned police station, the family of the petitioner has earned Rs.20,000/- per annum as livelihood, which is not sufficient for surviving of the family of the petitioner. So far as the employment of the brother of the petitioner, namely, Bhupesh Kumar is concerned, he was affected from Polio and is not able to perform any work and, therefore, he could not apply for employment.
11. A Division Bench of this Court in the case of Sudhir Kumar Mishra vs. State of U.P. and others passed in Special Appeal No.175 of 2016 after noticing the judgment rendered by Hon'ble the Supreme Court in the case of Umesh Kumar Nagpal vs. State of Haryana and others; (1994) 4 SCC 138 and the Full Bench of this Court in the case of Shiv Kumar Dubey and others vs. State of U.P. and others; 2014 (2) ADJ 312 has held as follows:
"11. In Shiv Kumar Dubey case (supra), while interpreting the provisions of Rule 5, this Court observed that appointments to public offices have to comply with the requirements of Article 14 and Article 16 of the Constitution. Article 16 provides for equality of opportunity in matters of public employment. Compassionate appointment is in the nature of an exception to the ordinary norm of allowing equality of opportunity to every eligible person to compete for public employment. The reason for the exception as envisaged in the Rules is that the immediacy of the financial hardship that is sustained by a bereaved family by the death of its earning member is sought to be alleviated in a situation in which the Government servant died while in service. Rule 5 of the Rules applies where a Government servant has died in harness after the commencement of the Rules.
12. The Court further observed that 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.
13. It was further observed by the Court that 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 discretionary power to relax the time limit of five years under first proviso to Rule 5 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."
12. In the aforesaid judgment, it has been held that the term (undue hardship) has not been defined in the Rules of 1974 but the purpose and object underlying the provision for compassionate appointment is to alleviate the financial distress of a family caused by death of its member who was in Government service. The object of compassionate employment is to enable the family, of the deceased Government servant who died in harness, to overcome the sudden financial crisis it finds itself in, and not to confer any status upon it. Compassionate appointment, extended to a dependent of the deceased employee, is an exception to the right granted to the citizen under Articles 14 and 16 of the Constitution. It has also been held that it is 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. It has also been held that authorities cannot reject an application in a blindfolded manner only on the ground that such application has been filed after the period of five years from the date of death of Government servant. The authority is required to applied mind rationally while exercising discretion and also keeping in view other factors relating to the case.
13. The term 'undue hardship' has been held to necessarily postulate a consideration of relevant facts and circumstances of the case particularly income of the family, financial condition, extent of dependency, marital status of members, its liability, terminal benefits received by family along with income from other sources etc. While determining the principle of undue hardship, the State Government should keep in mind that if the total income of the family from all sources exceeds the salary of the deceased employee, it cannot be said that no undue hardship is being caused to the family of the deceased employee. In the instant case, it is admitted position that as per the report of SHO concerned, the annual income of the family of the deceased employee is Rs.20,000/- which is definitely not sufficient for survival of the family of the petitioner.
14. In view of the observations made hereinabove, the impugned order dated dated 08.07.2020 passed by the Additional Chief Secretary, Department of Home, Lucknow is set aside and the writ petition is allowed.
15. Petitioner is directed to make a fresh representation to the concerned authority within a month from today and the authority concerned shall consider and decide the same by speaking and reasoned order expeditiously preferably within a period of eight weeks from the date of production of certified copy of this order.
Order Date :- 18.2.2021 akverma