Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 982 of 2020 Appellant :- Shashi Kant Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Neeraj Shukla Counsel for Respondent :- C.S.C.
Hon'ble Munishwar Nath Bhandari,J. Hon'ble Rohit Ranjan Agarwal,J.
By this appeal, a challenge is made to judgment dated 01.10.2020 of learned Single Judge by which writ petition of the appellant was dismissed.
In the present case, an application was filed for grant of compassionate appointment by invoking the provisions under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (in short 'Rules of 1974'). The application was submitted alongwith required declaration which includes even the financial condition of the family, as required under Rule 6 of the Rules of 1974. The declaration of the income of the family was to the tune of Rs. 2.50 to 3 Lacs yearly. Taking aforesaid into consideration, it was not found to be a fit case for grant of compassionate appointment and, accordingly, application was rejected.
Learned counsel for the appellant has submitted that an application for compassionate appointment could not have been rejected on the ground of the income disclosed by the appellant. It is when he is an Advocate, thus, there is no certainty of the income. The financial condition of the family should not have been taken into consideration to deny compassionate appointment, when it was not a condition under the Rules of 1974, accordingly, learned Single Judge should have caused interference in the order. It is otherwise not a case where any of the bread earner of the family of the deceased is in government employment so as to deny the compassionate appointment. The prayer is, accordingly, to set aside the judgment dated 01.10.2020 passed by learned Single Judge and allow the appeal with a direction to the respondents to grant compassionate appointment to the appellant.
We have considered the submissions made by learned counsel for the appellant and scanned the material carefully.
It is a case where an application submitted by the appellant for grant of compassionate appointment was rejected by the order dated 25.06.2020. It was taking note of the financial condition of the family. The income declared by the appellant himself was between Rs. 2.50 to 3 Lacs per year. Taking income to be nearing Rs. 25,000/- per month from other sources also, it was not found to be a fit case for grant of compassionate appointment.
Learned counsel has submitted that the denial cannot be in reference to financial condition of the family as otherwise not provided under the Rules of 1974. A reference of Rule 5 of the Rules of 1974 has been given for the aforesaid. We find that the financial condition of the family is the relevant consideration for grant of compassionate appointment. The object and purpose of providing compassionate appointment is to save the dependent members of the family of the deceased from immediate financial crisis caused due to the death of the bread earner and it is not otherwise taken as a source of recruitment. The financial crisis is, thus, relevant and if it does not exist then very basis to seek compassionate appointment goes. It is now well settled that financial status of the family can be taken into consideration and our view is supported by a Full Bench judgment of this Court in case of Shiv Kumar Dubey Vs. State of U.P. and others, reported in UPLBEC 2014 (1) 589. Para no. 29 of the said judgment is quoted hereunder for ready reference;
"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 whe penury re a scheme or rules provide for such appointment. Where such a provision is made in an 26 C.M.W.P. No. 13102 of 2010 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;
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;
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."
A bare perusal of the para (IV) of the said judgment makes it clear that financial crisis of the family is a relevant aspect. It is to be borne in mind the income of the family apart from its liability etc. to determine the issue aforesaid. In the instant case, the application submitted by the appellant was with the declaration of income and was taken as one of the consideration for denial of compassionate appointment. There was disclosure in regard to liability, if any. Taking into consideration the judgment of Full Bench of this Court in case of Shiv Kumar Dubey (Supra), we do not find any illegality in the impugned judgment.
It is relevant to state that the income was disclosed by the appellant himself in the application form, thus, he cannot withdraw from the statement made therein to say that the income of the Advocate varies. The income shown was between Rs. 2.50 to 3 Lacs annual. As per Rule 6 of the Rules of 1974 one is required to give details of the financial condition of family. If the respondent has taken a view that family is not in financial crisis so as to grant of compassionate appointment, we find no illegality in the order aforesaid.
Appeal fails and, accordingly, dismissed.
Order Date :- 8.1.2021 Shekhar