JUDGMENT Shishir Kumar, J.
1. The present writ petition arises out of the impugned order dated 19.3.2002 by which respondent No. 4 has rejected the claim of the petitioner for appointment under the Dying in Harness Rules.
2. The facts arising out of the present writ petition are that the father of the petitioner who was working as Diwan in the police department died on 12.6.1978 while in active service. The petitioner was born after about six months from the date of the death of his father. The petitioner passed his High School Examination in the year 1995 and Intermediate in 1997. The petitioner is the only son of late Sri Tribhuwan Pandey. As soon as the petitioner became major and completed 18 years of age, an application supported by an affidavit was filed before the Superintendent of Police, Varansi to consider the case of the petitioner for appointment under the Dying in Harness Rules. On the basis of the aforesaid application, the Superintendent of Police has recommended the case of the petitioner to the Deputy Inspector General of Police on 12.1.1997. Certain information was required and the petitioner submitted the information, which was sought by the respondents. An inquiry was made and the report was submitted with a recommendation that the orders be passed regarding further action in the matter. The petitioner submits that various formalities namely medical test, police verification and ability test were completed. The various letters were sent by the Superintendent of Police for taking action regarding the appointment of the petitioner. But the application of the petitioner was rejected by the respondents and a communication to this effect has been made by the Senior Superintendent of Police to the petitioner vide its letter dated 28.8.1999. The petitioner challenged the said order by means of Writ Petition No. 23907 of 2000 which was finally decided on 21.5.2001 and this Court has directed that a copy of this judgment shall be sent to the Chief Secretary for necessary information and further direction for introducing mandatory provision in the relevant rules providing for compassionate appointment within three months of production of certified copy of this judgment.
3. The petitioner submits that as directed earlier a comprehensive representation was submitted by the petitioner but the respondent without taking into consideration the judgment of this Court has rejected the claim of the petitioner for appointment under the Dying in Harness Rules vide its order dated 19.3.2001. Copy of the same has been filed as Annexure-18 to the writ petition.
4. It has been submitted on behalf of the petitioner that while considering the case of the petitioner the respondent has rejected the claim only on the ground that under Rule 5(1), there is a limitation for making the application within a period of 5 years for the purpose of consideration and appointment under the Dying in Harness Rules. The order has been passed rejecting the claim of the petitioner only in a mechanical manner without taking into consideration the direction given by this Court in the writ petition filed by the petitioner. There is no bar in the Act that if the application has been filed after five years as provided under the Rules, the applicant would not be considered and rejected only on this ground. The State Government has been empowered to relax the age. This Hon'ble Court in the earlier writ petition while taking into consideration this fact has directed the State Government to consider the claim of the petitioner but the same has not been considered and the application has been rejected only on the ground that it has been filed beyond five years from the date of the death of the petitioner's father.
5. It has further been submitted that there is a provision to this effect that if a police personnel dies on duty or due to some riot or in encounter, some relaxation has been given. Therefore, the State Government is fully empowered to relax the age but in the case of the petitioner the claim of the petitioner has been rejected.
6. Reliance has been placed upon a judgment of this Court reported in 2005 (6) A.W.C. 5254, Lalitesh Chandra Pathak v. Special Secretary, Government of U.P., Lucknow and Ors. which interprets the U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules 1974. Rule 5 has been interpreted and a power has been conferred upon the State Government to relax the rules of limitation in case of undue hardship and as no guidelines has been framed by the Government for relaxation, in such a situation the Court has directed to consider the claim of the petitioner. As such, the counsel for the petitioner submits that the State Government be directed to decide the application as a fresh after formulating the guidelines for deciding such applications which have been filed after 5 years as provided under Rule 5.
7. A counter affidavit has been filed. It has been stated in the counter affidavit that for the purpose of consideration of appointment under the Dying in Harness Rues, the criteria is to give the financial assistance to the members of the deceased family and in the rules there is a provision that if the application has been filed within 5 years, the same will be considered but if the same has been filed after a lapse of suitable long period, then the application has to be seen according to the intention of the Legislature for giving an appointment under Dying in Harness Rules. The Legislature has introduced this provision only to support the family of the deceased who died in Harness. The purpose is not that if family members of the deceased can maintain their livelihood for a period of 15-20 years, then the purpose of financial assistance to the deceased family does not arise. Though it has been submitted on behalf of the respondents that the State Government has been conferred a power to consider for relaxation of limitation but there must be some reasonable explanation to that effect and a pleading to that effect has to be submitted by the members of the family of the deceased that they are still in starvation, they are not having any means for their livelihood and their financial condition is the same as it was at the time of death of the employee, these factors have to be considered when the application for consideration of appointment under the Dying in Harness Rules is being considered for the purpose of relaxation of limitation. In such a situation the Standing Counsel submits that the application filed by the petitioner is liable to be dismissed and he is not entitled for appointment.
8. I have heard the learned Counsel for the petitioner and the Standing Counsel and have perused the record. From the record it is clear that the death of the father of the petitioner took place on 12.6.1978 and at that time the petitioner was not born and after a period of 6 months, the petitioner was born and the application by the petitioner was filed when the petitioner became 18 years of age admittedly after a lapse of 18 years. From the perusal of the various applications filed on behalf of the petitioner there is nothing to show that the financial condition of the petitioner was the same, which was at the time of the death of his father. There is no dispute to this effect that the State Government has been conferred a power under the Dying in Harness Rules to relax the age but the said exercise has to be exercised by the State Government in a very special case. The said power is not mandatory. It is a discretionary power conferred on the State. The person who claims an appointment after a lapse of 18-20 years has to prove and submit before the competent authority that the financial condition is same at the time when he is making an application and the financial condition of the person is the same which was at the time of the death of the father of the petitioner.
9. The purpose of giving an appointment under the Dying in Harness Rules is only to give financial assistance to the family of the deceased of which a person who was the money earner of the bread and butter has suddenly died and the family members are deprived of their bread and butter. Admittedly the appointment under the Dying in Harness Rules is aback door entry. The competent authority while considering the claim under aforesaid rule has to see the relevant factor which is provided under the rules because the appointment under the Dying in Harness Rules is permanent in nature and is being given without following any procedure for the purpose of appointment If such type of appointments are being provided by the State Government or by the competent authority, the various eligible persons having better qualification and experience will be deprived of from appointment as there is no competition.
10. As regards the delay the Apex Court has considered the said aspect of the matter in the judgment reported in 2005 (1) UPLBEC Page 60, National Hydroelectric Power Corporation and Ors. v. Nanak Chand and Ors. The relevant paragraphs are 5,7 and 10 which are quoted below:
5. It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises.
7. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. , it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to State that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was re-iterated in Phoolwati Smt.) v. Union of India and Ors. 1991 Supp. (2) SCC 689, and Union of India and Ors. v. Bhagwan Singh . In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. , it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.
10. Above being the position, we find the judgment of the High Court to be unsustainable. The same is, therefore, set aside.
11. In the case of Punjab National Bank v. Ashwini Kumar Taneja the Apex Court has held that retiral benefit received by the heirs of the deceased employee has to be considered while determining the financial status is necessary for compassionate appointment. Paras 5, 7 and 8 are relevant which are reproduced below:
5. As was observed in State of Haryana v. Rani Devi it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot he claimed as a matter of right. Die-in-harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case it was held that the Scheme regarding appointment on compassionate ground if extended to all types of casual or adhoc employees including those who worked as apprentices cannot he justified on constitutional grounds. In LIC of India v. Asha Ramchandra Ambekar it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that as a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
7. In State of U.P. v. Paras Nath it was held that the purpose of providing employment to the dependant of a government servant dying in harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years.
8. These aspects were highlighted in State of Manipur v. Mohd. Rajaodin, State of Haryana v. Ankur Gupta, Haryana SEB v. Naresh Tanwar and Haryana SEB v. Hakim Singh.
12. In view of the aforesaid fact, 1 am of opinion that as the application filed by the petitioner is highly belated and the State Government has considered the same and has rejected the claim of the petitioner, there is no infirmity in the order passed by the respondents.
13. The writ petition is devoid of merit and is hereby dismissed. There shall be no order as to costs.