Bachchha Raj vs State of U.P. and Others

Pradeep Kumar Singh Baghel, J.—The petitioner''s father was a Constable in Civil Police. He died-in-harness on 5.11.1990. The mother of the petitioner immediately thereafter moved an application on 3.12.1990 for her appointment on compassionate ground, which was followed by various correspondences. From the record it appears that the matter was sent to the State Government but no decision has been taken.

In the meantime the petitioner, whose date of birth is 11th July, 1982, attained the majority and he also submitted a representation for his appointment on compassionate ground.

The Special Executive Officer (Establishment)/Superintendent of Police (Karmik), Police Headquarter, U.P., Allahabad sent a communication dated 1.3.2001 to the Senior Superintendent of Police, Allahabad that a proposal for the petitioner''s appointment was sent to the State Government but it has been returned on 16.1.2001 seeking some further information in the matter. Since the petitioner''s claim had been pending, he preferred a writ petition i.e. Civil Misc. Writ Petition No. 49752 of 2004, wherein this Court issued a direction to the respondent to pass an order in the matter of the petitioner on 24.11.2004.

The second respondent by the impugned order dated 17th March, 2006 rejected the claim of the petitioner on the ground that in view of Rule 5(1)(3) of the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (Third Amendment) an application ought to have been made within five years and in case there is a delay the State Government has power to relax the said period.

In the impugned order it is recorded that since the petitioner has made an application after five years of the death of his father, his matter was sent to the State Government for relaxation.

It is contended on behalf of the petitioner that there was no delay on the part of the petitioner and his mother, as after the death of his father i.e. on 5.11.1990 his mother moved an application dated 3rd December, 1990 without any delay. It is further submitted that the delay has been caused due to the inaction on the part of the officials as the complete information was not sent to the State Government as such the State Government had required further information.

It is lastly urged that the petitioner''s mother was not given appointment without any justifiable reason. The petitioner has made an application. As far the delay in filing his application is concerned, it is submitted that due to the delay caused by the officials, the petitioner had moved an application for his own appointment within time as there was no justifiable reason for not appointing the petitioner''s mother.

It was further urged by the learned Counsel for the petitioner that the family of the petitioner is still living in penury and do not have sufficient means for their livelihood.

I have heard learned Counsel for the petitioner and the learned Standing Counsel.

Concededly, the petitioner''s mother has moved the application immediately after the death of her husband. In the impugned order the only reason mentioned for not appointing her is that after sixteen years the papers are not traceable in the office. This reason itself indicates that the delay was on the part of the State functionaries, who without any justifiable reason, did not issue the appointment letter to the petitioner''s mother.

As regards the delay in the case of the petitioner is concerned, since the petitioner''s mother was denied the appointment without any reason he had moved his application for his appointment. Under Rule-5 of the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 if there is a delay of more than five years only the State Government can consider the matter subject to certain conditions. The issue with regard to the delay beyond five years under the said Rules came to be considered by the Full Bench of this Court in the case of Shiv Kumar Dubey & others v. State of U.P. & others, 2014 (2) ADJ 312 (FB). The Full Bench after considering the relevant aspect of the matter formulated the principles in respect of compassionate appointment in the following terms:

"(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."

Having regard to the facts and circumstances of the case, I am of the view that the impugned order dated 17.3.2006 rejecting the cause of the petitioner is liable to be set aside. Accordingly, it is set aside. The respondents are directed to send the papers to the State Government within six weeks. A further direction is issued to the first respondent, the State Government to consider the application of the petitioner for appointment and for condonation of delay beyond five years in the light of the law laid down by the Full Bench expeditiously, preferably within three months. The petitioner is at liberty to file documents to indicate that the family of the petitioner is still living in penury. The said documents should be filed within three weeks from the date of receipt of this order.

The writ petition is, accordingly, allowed.

No order as to costs.