Court No. - 6
Case :- WRIT - A No. - 23193 of 2018 Petitioner :- Smt. Poonam Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ram Sagar Yadav Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned Standing Counsel.
This petition challenges an order dated 01 September 2018 in terms of which the claim for compassionate appointment made by the petitioner has come to be rejected.
The claim for compassionate appointment was laid on account of death of the father-in-law of the petitioner which had occurred on 22 December 1999 while in service. Although the husband of the petitioner applied in 2004, during the period of consideration of his claim for appointment, he died on or about 29 May 2004 in a road accident. It is only thereafter that the petitioner applied for consideration of her claim on 23 January 2014. This claim was initially rejected by the respondents taking the position that the husband was not in service and had not been engaged in government service at the time of his death. Aggrieved by the said decision, the petitioner preferred Writ-A No. 11481 of 2018 which was allowed by this Court on 29 May 2018 with the following observations:-
"In the instant case, the delay in consideration of claim of the petitioner's husband was at the instance of the respondents and even otherwise, he was found eligible for employment on compassionate ground. In case, the son of the deceased employee i.e. petitioner's husband would have been engaged in time, she would fall in the category of the dependant of the deceased employee being his wife. On account of the unforeseen situation of death of her husband i.e. son of the deceased employee, it cannot be said that his claim for compassionate appointment would stand frustrated or deemed to be abandoned.
For the above noted reasons, this court finds that the reasons given in the order dated 18.12.2017 to reject the claim of the petitioner are not tenable. "
Pursuant to the liberty granted by this Court, the respondents revisited the entire matter and have now passed the impugned order turning down her claim of compassionate appointment taking the view that the petitioner was not a widowed daughter- in-law at the time when the government servant had died in service.
While conscious of the findings returned by the Writ Court on the earlier occasion this Court notes that the 1974 Rules while defining 'family' include a widowed daughter-in-law. This amendment was inserted with effect from 22 December 2011. It is not disputed that the husband of the petitioner was not in government service. The claim of the petitioner would, therefore, necessarily have to be tested against the services rendered by the father-in-law. However, the learned Standing Counsel rightly points out that at the time when the father-in- law died in 1999, the petitioner was not a widowed daughter- in-law.
In view of the above, it is evident that she would not fall within the definition of family and consequently cannot be considered for being appointed on compassionate basis. This Court is also constrained to note the fact that prior to 2011 a widowed daughter-in-law was not included in the definition of family. However, this Court has proceeded on the basis that the amended definition, which was in vogue at the time when the petitioner applied, would be applicable. Even otherwise this Court bears in mind the principles enunciated by the Full Bench of the Court in Shiv Kumar Dubey and Others Vs. State of U.P. 2014(2) ADJ 312 wherein the following principles with regard to appointment on compassionate basis were culled out:-
"(29) (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.
(30) As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment of the Division Bench in Vivek Yadav's case holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will not be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation, with respect, requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct position in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blindfolded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify that the second proviso to Rule 5 requires an applicant, who invokes the power of dispensation or relaxation under the first proviso of the time limit of five years, to make out a case of undue hardship by elucidating, in writing, with necessary documentary evidence and proof, the reasons and justification for the delay. The Government may, in an appropriate case, when it is satisfied on the basis of the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso to Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms."
Bearing the aforesaid factors in mind, this Court finds no ground warranting interference with the order impugned.
Writ petition is dismissed.
Order Date :- 29.10.2018 faraz