JUDGMENT Sanjay Misra. J.
1. The petitioner is son of late. Jagdish Chandra Sharma who died on 7.9.1981 while working as a constable in the U.P. Civil Police Department at District Tehri Garhwal. The petitioner is elder of the two children left behind by the deceased constable the family consisting of widow and two sons.. The petitioner was aged two years in 1981 and the mother of the petitioner is alleged to have made two applications dated 10.10.1981 and 5.5.1982, (a copy whereof has been filed as Annexure-1 to the writ petition) for being given the benefits of pension and other unpaid amounts and also claimed for appointment on compassionate grounds. Till the year 1997 the issue of payment of pension had not been finally decided and the correspondence inter-se between the department continued. By an application the petitioner's mother claimed that in the meantime her son (petitioner) had attained the age of majority therefore, he should be considered for being given compassionate appointment under the provisions of U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules 1974. Upon the said application the petitioner was called and medically examined wherein it was found that the petitioner was fit and there was no disqualification in the petitioner for employment in the department. True copies of the form and medical certificate have been filed as Annexure -8 to the writ petition. The said certificate is dated 25.7.1998 issued by the Chief Medical Officer Udham Singh Nagar. The Superintendent of Police (Personnel) Allahabad U.P. by his letter referred the matter to the State Government for approval in view of the fact that under the Rules Limitation of five years has been provided for making application for compassionate appointment therefore, the delay which has been caused in the present case being of nearly sixteen years was to be condoned by the State Government in view of the proviso to rule 5 of the said Rules. The state Government appears to have rejected the proposal and such intimation was given to the petitioner by the respondent no.2 by his letter dated 29.9.1099. True copy whereof has been filed as Annexure-11 to the writ petition. This letter indicates that the proposal was rejected by the State Government by the order dated 30.6.1999. In the communication dated 29.9.1999 and the letter dated 20.11.1999 ,(Annexure-11 B) it has been stated that the State Government has refused to condone the delay in filing the application for compassionate appointment The petitioner has averred that by the Government Order dated 19th August 1997, the State Government has condoned the delay in making application for compassionate appointment in the case of 106 dependants of government servant such letter along with list of the 106 dependants has been filed as Annexure-12 to the writ petition. The petitioner submits that he fulfills all conditions for. being given compassionate appointment and he has therefore, prayed for suitable order to quash the impugned order dated 30.6.1999 passed by the State Government.. The petitioner has also prayed for issue of writ of mandamus to command the respondents to give appointment on compassionate grounds to the petitioner as per his qualifications.
2. A counter affidavit has been filed on behalf of the respondents no. 1,2, and 3. The fact about the death of the petitioner's father and the age of the petitioner at that time has been admitted by the respondents. However, the respondent has disputed the letter alleged to have been sent by the petitioner's mother for compassionate appointment on 10.10.1981 but it has admitted receiving the letter dated 5.5.1982 sent by the petitioner's mother. It has been averred in the counter affidavit that the application for compassionate appointment of the petitioner was received in the year 1997 and that the petitioner was medically examined and found fit. The respondents' case is that since the State Government has not condoned the delay under the proviso to Rule 5, the petitioner is not entitled for such appointment. With respect to condonation of delay in the case of 106 other dependants of government servants it has been averred that the State Government considered each and every case and when the circumstances were found to be such that delay ought to have been condoned, the State Government condoned the delay in the case of 106 dependants of Government Servants. Apart from contesting the claim of the petitioner on the ground of delay, respondents have not brought about any other grounds.
3. The petitioner has in the rejoinder affidavit re-iterated that his deceased father has not left behind any moveable and immoveable property and the only source of the income of the family was salary drawn by his deceased father. It has further been stated that the object of the rule is to provide compassionate appointment to mitigate the hardship which the dependants of the government servant would suffer due to loss of the bread earner of the family.
4. Heard Sri J.P. Pandey, learned counsel for the petitioner and Sri N.P. Pandey, learned standing counsel appearing on behalf of the respondents.
5. From the facts and circumstances as emerging from the record the controversy is primarily not of the eligibility of the petitioner on educational qualification or medical fitness but it is confined to whether the State Government has rightly or incorrectly rejected the proposal for compassionate appointment of the petitioner on the sole ground that it has been made beyond a period of five years as prescribed under the rules and that no case has been made out in favour of the petitioner to condone the delay in making the application for compassionate appointment. A reading of rule 5 of the Rules as amended in 1993 indicates that rule 5(1),(iii) has fixed a period of five years from the date of death of the government servant for making an application however, the proviso reads as under :-
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.
6. The proviso contemplates satisfaction of the State Government to the effect that if the time limit fixed would cause undue hardship in a particular case then it may dispense with or relax the requirement.. From the above it appears that in a suitable case the State Government has got power to relax the condition of Rule 5(1)(iii) which may disentitle the dependent from compassionate appointment by virtue of time limitation given in the said rule. Such satisfaction of State Government must be based upon consideration of the facts and circumstances of a particular case and it must deal with the case in a just and equitable manner.
7. The petitioner has challenged the communication made to him by the respondent no.2 regarding the decision of the State Government in the case of the petitioner and an order dated 30.6.1999 has been referred therein. However, such order has not been filed by the petitioner but it has been filed as Annexure-CA. 3 in the counter affidavit filed by the respondents. A perusal of the said order indicates that State Government has written to D.I.G. (Personnel) U.P. Police Head Quarter Allahabad that upon consideration of various application/proposal under the Dying in Harness Rules, the State Government has not granted approval. It appears that this order of State Government relates not only to the petitioner but to several proposals sent by the Police Head Quarter for appointment under the Dying in Harness Rules. In this letter dated 30.6.1999 no reason is apparent for such refusal. It is not denied by the respondents that the petitioner suffers from any other disqualification for compassionate appointment as prescribed under the Rules. The condonation of delay can be granted upon satisfaction of the State Government therefore, such consideration by the State Government has necessarily to be with respect to its satisfaction in a particular case. A general order rejecting several proposals without assigning any reason would in the opinion of this Court not amount to application of mind on the circumstances of a particular case.
8. In the present case circumstances of the family of the petitioner as admitted by the respondents is that the father of the petitioner left behind his widow and two sons aged about two years and one and half months at the time of his death in harness on 7.9.1981. It is not denied by the respondents that vide letter dated 18th August 1997 , the Superintendent of Police Tehri Garhwal has stated that revised pension to which the petitioner's mother was entitled has not. been paid till that date. The averment as made in para 9 of the writ-petition and the letter dated 18.8.1997 of the Superintendent of Police Tehri Garhwal as contained in Annexure- 3 to the writ petition regarding pension has not been denied by the respondents who have replied to the said averment in para 9 of the counter affidavit and stated that the contents of paragraph 9 of the writ petition are admitted with the amendment that the mother of the petitioner was asked to file application for appointment of her sons but since the sons were minor therefore, no appointment can be given. Such an admission with respect to the financial circumstances of the family after a lapse of 19 years of the death of the government servant is ample proof of the fact that the petitioner's mother was not given her due.. This admission implied or expressed as coupled with the averments of the petitioner that the only source of income of the family was the salary of his deceased father and thereafter pensionary benefit which were to be received by the mother indicate that the financial circumstances of the family were not such as to mitigate the hardship suffered by the family due to loss of the only bread earner. However, such circumstances of the family has not been denied by the respondents and therefore, considering the object of the rules this circumstance of the family ought to have been considered by the State Government while applying its mind to the proposal for the petitioners appointment under the Rules. The case was required to be dealt in a just and equitable manner. As already indicated earlier none of the impugned orders indicate anything to show that the State Government while dealing with this case has considered the circumstances of the family.
9. Another ground which has been pressed before this Court is regarding the cause of delay in making the application. It is obvious that dependant of government servant can be given suitable appointment only upon his attaining the age of majority-. Since it is the admitted case between the parties that on the death of the government servant, the petitioner was aged about two-years (his date of birth being 1.5.1980 as given in the physical fitness certificates Annexure-8 to the writ petition) and the other son of the deceased government servant was aged about one and half months , obviously neither of the two sons could be given appointment under the Dying in Harness Rules till they remained minors. The petitioner attained age of majority on 1.5.1998. Prior to such date he being a minor was disqualified from getting appointment under the Rules. He became eligible for appointment only upon attaining the age of majority. It is not the case of the respondents that any other member (widow) was given appointment and therefore, since one Member of the family was entitled to appointment, the petitioner's application and the proposal ought to have been considered on this issue. The delay beyond the period of five years was not due to any fault or latches on the part of the petitioner but it was because the petitioner was minor during the entire period. It is also not the case of the respondents that once the petitioner had attained the age of majority he did not apply forthwith therefore, the petitioner having applied for compassionate appointment immediately upon attaining the age of majority he has not in any manner been lax or lethargic.
10 Upon the aforesaid facts and circumstances the issue of condonation of delay was to be considered by the State Government. If the aforesaid circumstances of the petitioner and the family of the deceased government servant are such that they require sympathetic consideration, then it was incumbent upon the State Government to do so in a just and equitable manner while dealing with the case. However, since nothing has been brought on record to indicate that there was any application of mind to the peculiar facts and circumstances of this case by the State Government therefore, the inevitable conclusion which can be arrived at is that the State Government has completely lost sight of the objects for which the Rules have been framed. The purpose of the proviso to Rule 5(1), the scope and parameters of the proviso and the circumstances of the family of the deceased Government Servant.
11. For the aforesaid reasons this writ petition is liable to be allowed to the extent that the impugned order dated 30.6.1999 and the letters dated 29.9.1999 and 20.9.1999 communicating the decision of the State Government to the petitioner are hereby quashed. The matter is, therefore, being sent back to the State Government for taking decision afresh on the question of condonation of delay in making the application for compassionate appointment which was referred to it by the proposal dated 28.12.1998 of the Superintendent of Police (Personnel) U.P. The respondent no.l shall take a decision within a period of three months from the date a certified copy of this order is produced by the petitioner before him. There will be no orders as to costs.