JUDGMENT S.H.A. Raza, J.
1. The father of the petitioner, late Sri Syed Shujaat Hasan. who was employed in Lakhimpur Kheri judgeship and was working as Second Clerk there, expired on 9.11.1993. At the time of the death of the father of the petitioner, he has passed High School examination, only. According to the petitioner, he preferred an application for his appointment on a suitable post on compassionate grounds under the Dying-in-Harness Rules on 3.1.1994. Thereafter he sent reminders on 8.3.1994 and 13.9.1995. In the year 1995, the petitioner passed successfully the examination of Intermediate and again moved an application for his appointment but the District Judge, Kheri, rejected his application. Thereafter, the petitioner who is amongst one of the sons of the deceased invoked the jurisdiction of this Court under Article 226 of the Constitution of India.
2. A counter-affidavit has been filed by the Senior Administrative Officer, Civil Court. Lakhimpur Kheri. wherein it has been indicated that no application dated 3.1.1994 which has been annexed by petitioner as Annexure-3 to the writ petition was ever moved by the petitioner before the answering opposite party. It was further averred that the object of granting compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis in the family due to demise of an earning member of the family. In view of the decision of Hon'ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana and others, 1994 (4) SCC 138, It was asserted that the compassionate appointment cannot be granted after lapse of a reasonable period. According to the averment of the counter-affidavit, first time, the petitioner approached the District Judge, Kheri on 13.12.1995, i.e,, after two years after the death of his father. At the time of the death of the father of the petitioner, the petitioner was only High School and according to rules, he could be appointed on Class IV post but he did not apply immediately and only after he passed the intermediate examination, an application was made to get himself inducted into the service in the said judgeship. In the counter-affidavit as well as in the order passed by the District Judge, Kheri, great emphasis was laid that financial hardship required immediate remedy and Dying-in-Harness Rules are meant for providing Immediate relief to the family members but neither the petitioner nor his elder brothers or sisters ever applied just after the demise of their father. From the aforesaid reasons a conclusion was drawn that if the family would have suffered any financial hardship, any of them could have immediately applied for such a compassionate appointment. The other circumstance which was taken into consideration by the District Judge was that the petitioner preferred his application for appointment after he passed his intermediate examination, which shows that If the family would have faced any financial hardship, the petitioner would have moved the application as early as possible, meaning thereby the application for appointment was not moved Just after the death of his father but after a lapse of two years. At the relevant time, the petitioner could have been appointed on a Class IV post but he waited for two long years to become entitled for Class III post. The delay in making the applications shows that the family was not in the state of financial destitution, due to the death of the petitioner's father.
3. The learned standing counsel laid great emphasis on some of the observations made by Hon'ble the Supreme Court in the case of Umesh Kumar Nagpal, (supra), wherein it was held that mere death of an employee does not entitle his family to compassionate appointment. The authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crisis resulting from the employee's death.
4. In the case of Umesh Kumar Nagpal, Hon'ble the Supreme Court further observed that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post muchless a post held by the deceased. What is further, mere death of an employee in harness does not entitle any member of the family to such source of livelihood. The Government or the 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 Class III and IV are the lowest posts in non-manual and a 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. Hon'ble the Supreme Court has taken another circumstance and expressed a view that offering compassionate employment as a matter of course irrespective of the financial condition "of the family of the deceased. Hon'ble the Supreme Court also expressed a view that the compassionate employment cannot be granted after the lapse of a reasonable period which must be specified in the rule. The consideration for such employment is not a vested right which can be exercised at any time in future, liie object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole bread winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
5. From the perusal of the order of Hon'ble the Supreme Court, which was heavily relied upon by the District Judge. Kheri, it is evident that the Rules do not provide a specified period in which such an application could be moved. There may be purpose and object for not providing a specified period for preferring such an application. Take an example of a public servant who dies in harness, leaving behind his minor children and an Illiterate lady. Due to tradition customs and usage prevailing in our society, often a widow does not opt for service. There may be another circumstance, the lady is so preoccupied in bringing up their minor children that she cannot divest herself from the domestic duties and obligations. The eldest son of the deceased is a minor and he cannot be appointed even after the death of his father although the family is unable to tide over the misfortune which has fallen upon the family. The son may apply when he becomes major, may be after one, two or more years. In such a situation, it cannot be said that the application was not preferred by the petitioner or any member of the family, hence no compassionate appointment should be given. This will be an absurd proposition, which Hon'ble Supreme Court never intended.
6. Although this proposition is not applicable in the present case, because admittedly at the time when his father expired, the petitioner was major. But if the version of the petitioner is not accepted that he applied for his appointment on 3.1.1994 but applied after the lapse of about two years and the contention has to be examined as to whether only for the reason, the application preferred by the petitioner could be rejected. Even then, three questions arise which require consideration ; firstly, whether the delay of about two years in making application was so fatal to reject the application of the petitioner, secondly, whether a presumption could be drawn that the family after the death of the deceased public servant was able to tide over the financial crisis, so the application was not moved and thirdly, that if the Rules do not provide a specified period for preferring such an application, the application of the petitioner could be rejected.
7. As far as the first and third contentions are concerned, I am definitely of the view that under the Dying-in-Hamess Rules on the demise of a public servant does not vest a substantive right for compassionate appointment to the member of the family of the deceased. What has to be examined by the appointing authority is, the financial position of the family. Whether the family after the death of sole earning member can tide over the financial crisis or not. needs to be enquired into. In that regard, making an application at much belated stage may raise a presumption that the family was not in financial crisis.
8. Although such an application should be moved as early as possible but there may be circumstances where delay in preferring the application may be overlooked. The family might have saved some money to sustain for a year or two. The desire of the widow is to get his son qualified atleast to become entitled for a better post. In such a situation, it is not the financial crisis at the time of death of the sole earning member of the family Is to'be considered which has be-fallen upon the family, but which may fall upon in near future. may become a relevant feature. May be for that reason, the State Government has earlier not framed any Rules, as observed by Hon'ble the Supreme Court in its judgment.
9. My attention has been drawn by the learned standing counsel that the Rules in that regard have been framed by the State Government which provides that an application may be moved, within five years after the death of a public servant. The object of providing five years for preferring such an application is meant for the eventuality that the minor heir may became major or complete his education to become eligible for such an appointment.
10. In view of the aforesaid reason, it cannot be said that there was an inordinate delay in preferring the application particularly when there is a provision in the Rules that such an application can be preferred within a period of five years.
11. The District Judge has not cared to Indicate in the order what was the financial position of the family members of the deceased at the time of the death of the public servant. He has not indicated as to whether any member of the family of the deceased was an earning member or any of the family member was in a business who could tide over such financial crisis. These were the relevant circumstances which ought to have been considered by the District Judge but he brushed aside all those circumstances and arrived at a conclusion on the basis of surmises and conjectures that if the family had suffered any financial crisis at the time of the death of a public servant, any member of the family would have applied for a compassionate appointment immediately.
12. I am of the view that the order passed by the District Judge. Lakhimpur Kheri, is perfectly, perverse, unreasonable, and unjust which deserves to be quashed. Accordingly, the writ petition is allowed and a wrtt in the nature of certtorari quashing the order passed by the District Judge. Kheri is issued. The District Judge, Kheri is directed again to consider the application of the petitioner and pass appropriate orders, in view of the observations made, hereinabove. within a period of three months from the date of production of a certified copy of this order.