Court No. - 35
Case :- WRIT - A No. - 18181 of 2021 Petitioner :- Saurabh Saxena Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Amal Kumar Srivastava,Gyanendra Kumar Srivastava Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
Hon'ble Prakash Padia,J.
Heard learned counsel for the petitioner. Learned Standing Counsel has accepted notice on behalf of respondent no.1 whereas Sri P. D. Tripathi, learned counsel, appears for the respondents no.2 and 3.
It is argued by learned counsel for the petitioner that mother of the petitioner, who was working on the post of Headmistress at Prathmik Vidyalaya Kishanpur, Vikas Khand Vithari Chainpur, District Bareilly unfortunately died on 14.1.2013. Subsequently, an application was submitted by the petitioner for his compassionate appointment before the authorities on 04.06.2019. Since no decision was taken on the same petitioner preferred a petition being Writ A No.9656 of 2020, which was disposed of on 1.12.2020. Pursuant to the same, order impugned has been passed by the respondent no.2 on 3.4.2021, copy of which is appended as annexure 22 to the writ petition. In the aforesaid order, it is stated that application for appointment on compassionate ground was submitted by the petitioner after more than five years from the death of the mother of the petitioner, the matter could only be considered by the State Government.
It is argued by learned counsel for the petitioner that in view of the law laid down by the Division Bench of this Court in the case of Shiv Kumar Dubey and others Vs. State of U.P. and others reported in 2014 (2) ADJ 312, petitioner is entitled for consideration of his case for compassionate appointment. He relied upon paragraph 28, which is quoted hereinbelow:-
"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."
Heard learned counsel for the parties.
With the consent of learned counsel for the parties, the writ petition is being disposed of at the admission stage itself.
In the facts and circumstances, the petitioner is permitted to make a fresh representation in this regard before the respondent no.1/Secretary, Basic Shiksha, U.P. Govt. Lucknow, within a period of three weeks from today. If such a representation is made, the respondent no.1 is directed to pass appropriate order in accordance with law and also taking into consideration the law laid down by the Division Bench in the case of Shiv Kumar Dubey (supra) within a further period of three months sympathetically.
With the aforesaid observations, present writ petition is disposed of finally.
It is made clear that this Court has not entered into the merits of the case and thus it is for authority concerned to take a decision independently in accordance with law.
Order Date :- 23.12.2021 Pramod Tripathi