Hon'ble Dr. Vijay Laxmi,J.
(Delivered by Hon'ble Dr. Vijay Laxmi,J.) This special appeal has been filed against the judgment and order dated 20.01.2016 passed by learned Single Judge in Writ Petition No.7501 (SS) of 2005, Sudhir Kumar Mishra vs. The State of Uttar Pradesh and others whereby the order dated 28.09.2006 of the state government rejecting the representation of the petitioner for compassionate appointment was confirmed and Writ Petition was dismissed.
2. The father of the appellant, Shri Rama Shanker Mishra, while working as Collection Amin at Tehsil Bighapur, District Unnao, died on 01.10.1996 leaving behind his widow, three daughters and the petitioner. The mother of the petitioner, Smt. Vijaya Devi, did not claim compassionate appointment but moved an application on 28.08.2000 before the District Magistrate, Unnao, making submissions that she did not claim compassionate appointment since she was neither qualified nor was able to take up employment due to her continued illness. Her three daughters were of marriageable age and were not inclined to take up any employment. Her only son, the petitioner, who was studying in Class-X, was not eligible for appointment as he was minor and was to attain majority in year 2004. In this situation, it was, thus, prayed that in view of amended provisions of Section 5 of the Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 ( in short referred to as "1974 Rules") period of 5 years may be relaxed in respect of her son who may be considered for employment and a post be kept reserved for employment of her son under the Rules.
3. On her son completing the age of eighteen, her mother filed a representation on dated 11.08.2004 before the District Magistrate, Unnao seeking compassionate appointment of her son on the ground that the financial and social problems occasioned by the death of her husband continued. The said request of the petitioner's mother was declined by the order dated 08.07.2005. Being aggrieved with this order dated 08.07.2005, the petitioner filed a writ petition whereby the petitioner was directed by interim order dt. 21.11.2005 to file a fresh representation before the State of U.P. for reconsideration of his case and for allowing relaxation of time limit of 5 years as per above Rule 1974. The petitioner submitted a representation accordingly on 12/19.12.2005 to the Secretary, Revenue Department, Government of Uttar Pradesh as well as to the District Magistrate, Unnao. The said representation was also rejected vide order dated 28.09.2006 by the State on the ground that it was time barred. The said order was challenged in Writ Petition No.7501 (SS) of 2005 which was dismissed by learned Single Judge hence this writ petition.
4. It is argued by learned counsel for the petitioner that there was no occasion for the State Government to reject the application of the petitioner for compassionate appointment. Learned counsel submitted placing reliance upon the report of lekhpal and Tehsildar, Unnao dated 01.03.2005 that the said report indicated that the financial condition of petitioner's family continued to be poor and pitiable after death of the employee. The report is made available on the record by the State of U.P. It is submitted that the family was living hand to mouth.
5. The report dated 01.03.2006 reveals that the land admeasuring 1.575 hectare was recorded in the name of petitioner and his mother Vijaya Devi in the revenue records. The widow of the deceased employee is getting the pension from the department. The deceased was survived by his wife, three daughters and one son. The two daughters were still unmarried. The land was barren and their agricultural income was Rs.9,000/- per year. Thus, only means of livelihood was pension. It is submitted that the financial condition of the family continued to be critical and pitiable. Despite the recommendation of the District Magistrate, Unnao for granting relaxation of time beyond 5 years, the representation of the petitioner was illegally rejected by the state government without assigning any reason or ground in the impugned order dated 28.09.2006 and thus the order was challenged in Writ Petition No.7501 (SS) of 2005 which was dismissed, hence this special appeal. The petitioner has relied on the judgment of this Court in Shiv Kumar Dubey and Ors. Vs.State of U.P. and Ors. MANU/UP/0189/2014, 2014 (2)ADJ 312 in support of his case.
6. As against it, learned Additional Chief Standing Counsel vehemently argued that the application of the petitioner's mother requesting to reserve the vacancy till the petitioner attains majority, was not found sustainable in the absence of any such provision under 1974 Rules. It is contended that the elder daughter of the deceased employee, who was major and unmarried during the relevant time, could have sought benefit of seeking compassionate appointment well within the period of limitation. The widow of the deceased employee did not avail the said opportunity. In these circumstances, she was not entitled to the benefit of 1974 Rules and her request for relaxation was not maintainable.
7. It is also contended that compassionate appointment under 1974 Rules is given to grant immediate relief to the member of the family of the deceased employee in order to cope with the sudden demise of the bread earner of the family. It is an special legislation by-passing the regular procedure of making recruitment and, if the family of the deceased employee has been able to maintain itself for sufficiently long time, there is no justification for by-passing the regular recruitment process as happened in this case. Learned Single Judge has rightly observed that since the appellant had been able to survive for sixteen years, that was indicative of a lack of immediacy. The special appeal was liable to be dismissed.
8. We have considered the aforesaid submissions and have gone through the records. To appreciate the contentions, it is necessary to first examine the relevant provisions of the U.P Recruitment of Dependent of the Rules.The expression 'deceased Government servant' is defined by Clause (b) of Rule 2 to mean a Government servant who dies while in service. Rule 2(c) of the Rules defines ''family'. Rule 5 of U.P Recruitment of Dependent of the Rules,1974 provides as follows:
5. Recruitment of a member of the family of the deceased.--
(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-fulfils the educational qualifications prescribed for the post, is otherwise qualified for Government service; and makes the application for employment within five years from the date of the death of the Government servant:
Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.
(2) As far as possible, such an employment should be given in department in which the deceased Government servant was employed prior to his death.
(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.
9. Rule 8 provides as under:
8. Relaxation from age and other requirements.--(1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.
(2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post. An appointment under these rules shall be made against an existing vacancy only.
10. Now, it is in this background it would be appropriate to mention the principles of the law laid down by this Court and Supreme Court on the subject. In Shiv Kumar Dubey and Ors. vs. State of U.P. and Ors. MANU/UP/0189/2014 this Court after elaborately analysing the basic precepts interpreted the provision of the Rules in the light of the principles of law which emerge from the judgment of this court and Supreme Court. This court thus formulated the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules as under:
(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.
11. In Shiv Kumar Dubey case(supra), while interpreting the provisions of Rule 5, this Court observed that appointments to public offices have to comply with the requirements of Article 14 and Article 16 of the Constitution. Article 16 provides for equality of opportunity in matters of public employment. Compassionate appointment is in the nature of an exception to the ordinary norm of allowing equality of opportunity to every eligible person to compete for public employment. The reason for the exception as envisaged in the Rules is that the immediacy of the financial hardship that is sustained by a bereaved family by the death of its earning member is sought to be alleviated in a situation in which the Government servant died while in service. Rule 5 of the Rules applies where a Government servant has died in harness after the commencement of the Rules.
12. The Court further observed that Rules have been framed by the State Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The Rules make it abundantly clear that the purpose and object underlying the provision for compassionate appointment is not to reserve a post for a member of the family of a deceased Government servant who has died while in service. The basic object and purpose is to provide a means to alleviate the financial distress of a family caused by the death of its member who was in Government service. This is the underlying theme or thread which cuts across almost every provision of the Rules.
13. It was further observed by the Court that the rationale for imposing a limit of five years beyond which an application cannot be entertained is that the purpose of compassionate appointment is to bridge the immediacy of the loss of an earning member and the financial distress that is sustained in consequence. A lapse of time is regarded by the Rules as leading to a dilution of the immediacy of the requirement. The discretionary power to relax the time limit of five years under first proviso to Rule 5 is in the nature of an exception. It is a power which is vested in the State Government, a circumstance which is indicative of the fact that the subordinate legislation expects it to be exercised with scrupulous care. Ordinarily, the time limit of five years governs. The State Government may relax the norm on a careful evaluation of the circumstances mandated by the second proviso. It is but a matter of first principle that a discretionary power to relax the ordinary requirement should not swallow the main or substantive provision and render the basic purpose and object nugatory.
14. In Subhash Yadav vs. State of U.P. through Secretary Education Department (Basic) and Ors. MANU/UP/2289/2010, the Division Bench of this Court dealt with a situation where the father of the appellant had died in harness on 8 August 1994 when the appellant was six years of age. The appellant attained the age of majority on 5 December 2005 and made an application for compassionate appointment. The State Government declined to accord relaxation of the period of five years and the writ petition filed by the appellant was dismissed by a learned Single Judge who held that since the appellant had been able to survive for sixteen years, that was indicative of a lack of immediacy. The Division Bench held that the Government erred in rejecting the application on the ground that there was an inordinate delay and such a blanket reason without considering anything else would not be in conformity with the power which has been conferred on the State, to relax the time period, which has to be exercised reasonably. Hence, the Division Bench held that the authorities cannot reject an application "blindfold" if it had been moved after five years and were required to apply their mind rationally, exercising the discretion in view of other factors relating to the case.
15. In Umesh Kumar Nagpal v. State of Haryana and others, MANU/SC/0701/1994:(1994) 4 SCC 138, the Supreme Court explained the basic purpose of providing compassionate appointment to the dependent of a deceased employee who has died in harness:
The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non- manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency.... For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
16. In Director of Education (Secondary) and another v. Pushpendra Kumar and others, MANU/SC/0373/1998 :(1998) 5 SCC 192, the Supreme Court while granting relief of compassionate appointment gave a direction that if no class III post is available in the institution in which the deceased employee was employed or in any other institution in the district, the said respondent would be appointed against a Class IV post in the institution in which the deceased employee was employed and a supernumerary post in class IV be created for that purpose . To quote the relevant extract:
The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure 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, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which at is an exception and thereby nullify tine main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment of seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee.
17. In Sushma Gosain and others v. Union of India and others, MANU/SC/0519/1989 : (1989) 4 SCC 468 Supreme Court observed thus:
The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.
18. In Jagdish Prasad Vs. State of Bihar and Anr. MANU/SC/0996/1996 Supreme Court observed as under:
3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the Court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress cause to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. It other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged de hors the recruitment rules.
19. In Haryana State Electricity Board and another Vs.Hakim Singh MANU/SC/0964/1997 Supreme Court observed as under:
12. We are of the view that the High Court has erred in over stretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that High Court would have treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succour to the family to tide over the sudden financial crisis befallen the dependants on account of the untimely demise of its sole earning member.
20. In the leading case of Md. Zamil Ahmed Vs.The State of Bihar and Ors. MANU/SC/0515/2016 , the Supreme Court upheld the validity of the compassionate appointment of the brother of the deceased constable who left behind him illiterate wife and four minor children and disapproved the action taken by the state of terminating his service on the ground that the Appellant being the only close relative of the deceased could be given the appointment in the circumstances prevailing in the family. It was observed that the action on the part of welfare state in terminating the appellant service on the ground that he was not dependent of the deceased cant be countenanced. The state was not permitted to terminate the services of the appellant as constable after 15 years of his appointment for the following reasons:
15. Firstly, the Appellant and wife of the deceased at the time of seeking compassionate appointment did not conceal any fact and nor filed any false or incorrect document/declaration. On the other hand, both of them disclosed their true family relations and conditions prevailing in the deceased family on affidavit.
16. Secondly, the Appellant, who is the brother of the deceased, undertook to maintain the family of the deceased in the event of his securing the compassionate appointment and he accordingly also gave such undertaking to the State.
17. Thirdly, there was no one in the family of the deceased to claim compassionate appointment except the Appellant who, as mentioned above, was the close relative of the deceased, i.e., real younger brother and used to live with the deceased. He was otherwise eligible to claim such appointment being major, educated and only male member in the family.
18. Fourthly, the Appellant after securing the employment throughout maintained the family of the deceased in all respects for the last more than 15 years and he is continuing to do so.
19. In the light of aforementioned reasons, which rightly persuaded the State to grant compassionate appointment to the Appellant, we do not find any justification on the part of the State to dig out the Appellant's case after 15 years of his appointment and terminate his services on the ground that as per the State policy, the Appellant did not fall within the definition of the expression "dependent of deceased" to claim compassionate appointment.
20. The fact that the Appellant was younger brother of the deceased was within the knowledge of the State. Similarly, the State was aware that the brother does not fall within the definition of dependent at the relevant time and still the State authorities obtained the undertaking from the Appellant that he would maintain the family of the deceased once given the appointment.
21.In our considered view, the aforesaid facts would clearly show that it was a conscious decision taken by the State for giving an appointment to the Appellant being the younger brother of deceased constable for the benefit of the family members of the deceased who were facing financial hardship due to sudden demise of their bread earner. In our view, it was a right decision taken by the State as a welfare state to help the family of the deceased at the time of need of the family.
21. In the instant case, the petitioner submitted that when his father died he was only 4 years old and his mother informed the department that she would make application in prescribed from only when he attained majority. The department negatived the representation in this matter taking stand that the application was not made within prescribed period. However, the petitioner's request for compassionate appointment was made soon after appellant attained majority. Under Rule 5 the time limit within which the dependant of the deceased employee is to be accommodated is fixed as five year. This period can be extended under proviso to Rule 5 where burden of proving the fact that compassionate circumstances continued to exist even till date was on the petitioner himself which he has successfully discharged in this case. There is sufficient evidence of the petitioner having aged and ailing mother, two unmarried sisters, the family having pension as the only source of livelihood, the agricultural land being barren causing nugatory income of about 9000/- per year, which appeared quite insufficient to enable the family to get over the financial crisis which is being faced by the family after the death of his father.
22. On the basis of objective considerations founded on the disclosures made by the petitioner in this case for compassionate appointment and having considered the reasons for the delay, we are of the opinion that undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused to the petitioner and his family by the application of the time limit of five years. The expression 'undue hardship' has not been defined in the Rules. Undue hardship would necessarily postulate a consideration of relevant facts and circumstances of the case. In view the income of the family, its financial condition, the extent of dependency and marital status of its members, its liabilities, the terminal benefits received by the family; the age, together with the nugatory income from any other sources in this case, we are of the view that the family continues to suffer financial distress and hardship occasioned by the death of the bread winner. Considering the penurious condition of the family, it appears to be one of the rarest of rare cases where due to exceptional circumstances the family needs the extraordinary remedy to elate the condition of family. It would be appropriate to deal with the case of the petitioner in a just and equitable manner.
23. In the result, we allow the appeal and in reversal of the order of the Learned Single Judge of this Court, we direct respondent No. 3 to consider the case of Sudhir Kumar- appellant for compassionate appointment within two months from the date on which the certified copy of this order is made available to the respondent No.3 by petitioner along with his representation.