This writ petition is filed by the petitioner by which the petitioner has sought compassionate appointment.
The facts of the present case are that the father of the petitioner was working on the post of Librarian (Lipik) in the Radhe Lal Inter College, Kachla Ghat, Badaun (hereinafter referred to the 'College') since 8.8.1972 to 13.8.1986. The father of the petitioner died on 1.9.1986 due to cardiac arrest.
Admittedly the present petitioner, who is the son of Late Holkar Singh Chauhan, was born on 15 July 1985. The petitioner was only 14 months old at the time of death of his father.
According to the petitioner, an application was moved on 17.7.2003 by the mother of the petitioner addressed to the Principal as well as the Committee of Management of the College to appoint the petitioner as and when he completes the age of 18 years or as and when he became major.
According to the petitioner, he has completed his High School examination in the year 2000 and, thereafter, Intermediate examination in the year 2003. In the aforesaid examinations, he has declared passed in second division.
Since the petitioner became major, he has approached the respondent authorities including the District Inspector of School, Badaun for compassionate appointment and on 12.6.2004, an application was moved by the petitioner, a copy of which has been enclosed as Annexure No. 5 to the writ petition.
Since no decision has been taken by the respondent authorities, the petitioner has no objection but to file the instant writ petition under Article 226 of the Constitution of India for compassionate appointment.
The order sheet in the present case discloses that this Court has issued the notice on 12.10.2004 and has further directed the counsel for the respondents to file their counter affidavits within two weeks. Since 2004 till today, no counter affidavit has been filed by the respondents.
In the aforesaid background, this Court find proper to dispose of this writ petition on the basis of the pleadings and the recent decision on this issue.
Learned counsel for the petitioner has placed reliance upon the judgment of Full Bench of this Court in the case of Shiv Kumar Dubey and Others v. State of UP and Others, reported in, 2014 (2) ADJ 312 (FB).
Learned counsel for the petitioner has placed reliance upon paragraph 29 of the aforesaid judgment delivered by the Full Bench of this Court for consideration and perusal. The contents of paragraph 29 of the Full Bench judgment are reproduced :-
"29. 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."
Learned counsel for the petitioner has emphasized sub-paragraph (vi) of paragraph 29 of the said judgment, which clearly indicates that Rule 5 mandates that ordinarily an application for compassionate appointment must be made within a period of 5 years of the date of death of the deceased employee, however, the power conferred by the first proviso of Rule 5 provides the discretion to relax the aforesaid period of five years, when it is found that a case is covered with an undue hardship.
Learned counsel for the petitioner further urged that the facts of the present case clearly reflects that the petitioner is entitled to get the benefit of first proviso which provides the relaxation. Admittedly on the date of death of the father of the petitioner, the petitioner was only 14 months old and that immediately when the petitioner attained the majority, he applied and that since last 14 years no counter affidavit is filed by the respondents, and that the mother was not in a condition to join the service on compassionate basis.
Having heard learned counsel for the petitioner and learned Standing Counsel and in the interest of justice since no counter affidavit has been filed even after a gap of more than 14 years, this Court has no option but to dispose of this petition by directing the concerned respondent authorities to consider the judgment of this Court in the case of Shiv Kumar Dube (supra) and take an appropriate decision forthwith without any further delay positively within thirty days from the date of production of the certified copy of this order and appoint the petitioner on compassionate appointment.
The writ petition is, accordingly, allowed.
Order Date :- 21.8.2018 Akram