1- Heard learned counsel for the petitioner, learned counsel for the State-respondents and Sri Shravan Kumar Pandey, learned counsel for the respondent no.4.
2- Undisputedly, the father of the petitioner, namely, Sri Karori Lal was assistant teacher in Purva Madhyamik Vidyalay, Mani Kothi, Block Arva Katra, district Auraiya, who died on 18.6.2006, when the petitioner was aged about 12 years. The petitioner attained the age of majority in the year 2012. Immediately after attaining the age of majority, he filed an application dated 18.5.2012 before the District Basic Education Officer, Auraiya, respondent no.4, for appointment on compassionate ground. The respondent no.4 referred the matter to the State Government vide letter dated 18.6.2012.
3- Now, the impugned order dated 21.11.2017 has been passed by the respondent no.1 rejecting the claim of the petitioner on the ground that the petitioner has filed an application for compassionate appointment after expiry of five years. It has also been observed in the impugned order that earlier his application was disposed of by order dated 31.7.2013 and the respondent no.3 was directed to communicate the order. There is no finding in the impugned order that the alleged order dated 31.7.2013 was served upon the petitioner or it was communicated by the respondent no.3 to the petitioner.
4- Perusal of the impugned order shows that the respondent no.1 has completely failed to apply its mind that the petitioner was minor at the time of the death of his father, i.e. the deceased employee and immediately on attaining the majority he filed an application for compassionate appointment.
5- The first and second proviso to Rule 5 of the U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules 1974, as amended by the 11th Amendment Rules 2014, clearly provides that if the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, if may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. It has further been provided that 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. For ready reference, Rule 5 of the Rules of 1974, which was amended by the 11th Amendment Rules 2014 is reproduced below:
"5 (1) Recruitment of a member of the family of the deceased - 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 purpose, 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:
Provided that in case appointment is to be made on a post for which typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in typewriting, he shall be appointed subject to the condition that he would acquire the requisite speed of 25 words per minute in typewriting well within one year and if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the requisite speed in typewriting and if in the extended period also he again fails to acquire the requisite speed in typewriting, his services shall be dispensed with.
Provided further that in case appointment is to be made on a post for which the knowledge of computer operation and typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in computer operation and typewriting, he shall be appointed subject to the condition that he would acquire the 'CCC' certificate in computer operation awarded by the DOEACC Society or a certificate equivalent thereto from an Institution recognized by the Government together with the required speed of 25 words per minute in typewriting well within one year and, if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the required certificate in computer operation and the required speed in typewriting and if in the extended period also he again fails to acquire the required certificate in computer operation and the required speed in typewriting, his services shall be dispensed with."
(ii) is otherwise qualified for Government services; 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, if 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 the same 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.
(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules,1999, as amended from time to time."
6- It has not been disputed by the respondent no.1 that the petitioner has filed the application for compassionate appointment immediately on attaining the age of majority. He attained the age of majority in the year 2012 and filed the application on 18.5.2012.
7- In his application, the petitioner had offered explanation for submission of the application for compassionate appointment after five years of the death of his father. He also pleaded grave financial crisis and illness of his mother. He stated that under grave financial hardship, he is somehow maintaining his mother by doing work as labourer. The respondent no.1 while rejecting the aforesaid application of the petitioner has not disbelieved his explanation and yet rejected the application by observing that application has been moved after the prescribed period of five years. The respondent no.1 has ignored the provisos to Rule 5 of the Rules which specifically provides for relaxing the limitations of 5 years in the event of undue hardship.
8- As per provisos to Rule 5 of the Rules, explanation of delay on account of "undue hardship" has to be considered by the Authority in a "just and equitable manner" after considering all the relevant facts leading to the delay, so as to take appropriate decision to relax or dispense with the requirement of submission of application for compassionate appointment within 5 years of the death of government servant. Perusal of the impugned order shows that the respondent no.1 has not dealt with the application of the petitioner in the manner as prescribed by Rule 5 of the Rules as aforesaid.
9- In the case of Shiv Kumar Dubey and others v. State of U.P. and others, AIR 2015 (All.) 47 (F.B.) ( Paragraph 5 and 28) a Full Bench of this Court formulated the principles governing compassionate appointment, 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."
10- Perusal of the impugned order reveals that the respondent no.1 has failed to comply with the principles laid down by the Full Bench in sub-para (iv), (vi) and (vii) of the judgment aforequoted.
11- In view of the aforesaid, the impugned order dated 21.11.2017 cannot be sustained and is, hereby, quashed. Matter is remitted back to the respondent no.1 with a direction to pass an order afresh in accordance with law in the light of the observations made above, within six weeks from the date of presentation of a certified copy of this order. In the event, the order is not passed within stipulated period, as aforesaid, the respondent no.1 shall be liable to pay cost of Rs.1,000/- per day for each day of delay beyond the stipulated period which shall be paid to the petitioner immediately.
12- With the aforesaid observations, the writ petition is allowed to the extent indicated above.
Order Date :- 27.7.2018 Ak/