Rajendra Prasad Mishra vs State of U.P.and others

S. P. Srivastava, J.—Feeling aggrieved by an order dated 29th December, 1992, passed by the respondent authority, declining to grant employment to the petitioner on compassionate ground provided for in the Uttar Pradesh Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974, the petitioner has approached this Court seeking redress praying that a direction be issued requiring the respondent authorities to appoint him on the post of Stenographer with effect from 15.5.1991 in the pay scale of Rs. 1200 2040 and treat the petitioner in continuous service from the said date with all service benefits. He has further prayed for a direction declaring Rule 2 of the Uttar Pradesh Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974 with regard to the fixation of the date of enforcement of the Rules of 1974 with effect from 21.12.1973 to be ultravires to the spirit of the aims and object of the Rules and the Constitution of India.

The facts in brief, shorn of details and necessary for the disposal of this case lie in a narrow compass. Sri Ram Nath Misra, the father of the petitioner was holding the post of Chaukidar a class IV post in the office of the Assistant Engineer, Minor Irrigation, Barabanki when he died on 3rd December, 1969 leaving behind his wife and two sons. The petitioner according to his age disclosed in the affidavit was born. In the year 1960 and appears to be of about 9 years of age at the time of the death of his father. The petitioner claims that his brother was already in employment prior to the death of his father and was living separately. It is claimed that on the death of Sri Ram Nath Mishra, the only dependent family members left by him were the petitioner and his mother. It is asserted that after attaining the age of majority, the petitioner submitted several applications to the respondent authorities for his appointment on compassionate ground on account of his father having died in harness. From the allegations made in paragraph 3 of the writ petition, it appears that the application seeking employment on compassionate ground was filed by the petitioner for the first time in the year 1979 that is to say after ten years of the death of the father. There is nothing on the record to indicate that the mother of the petitioner ever applied for seeking any such employment on compassionate ground. The petitioner further claims that the respondent authorities had held the selection in order to examine his eligibility and suitability for appointment on the post of Stenographer in the pay scale of Rs. 12002040 but refused to give such an appointment without any justification.

It may be noticed that as a rule appointment in the public services or in the establishments falling within the category of ''State'' envisaged under Article 12 of the Constitution of India should be made strictly on the basis of open invitation of applications and merit as pointed out by the Apex Court in its decision in the case of Umesh Kumar Nagpal v. State of Haryana, reported in JT 1994 (3) SC 525. No other mode of appointment nor any other consideration is permissible. In the aforesaid decision, it was further observed that neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the Rules for the post. However, to this general rule, which is to be followed strictly in every case, the Apex Court pointed out that there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without means of livelihood. In such cases out of pure humanitarian consideration, taking into consideration, the fact that unless come source of livelihood is provided the family would not be able to make both ends meet, a provision is made in the Rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such appointment.

The Apex Court emphasised that the whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. It was also pointed out that mere death of an employee while in service does not entitle his dependent family to such source of livelihood. The Government or the public authority concerned has to examine the financial conditions 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 it job is offered to the eligible member of the family. The object being to relieve the family of the financial destitution and to help it get over the emergency, in another decision in the case of Life Insurance Corporation of India v. Miss Asha Ramchandra Ambakar and another, reported in JT 1994 (2) SC 183, the Apex court had pointed out that High Courts and the Tribunals cannot confer benediction impelled by a sympathetic consideration.

In the present case, it is obvious that the father of the petitioner had died much before the enforcement of the Rules indicated hereinbefore. As observed by this Court in its decision in the case of Umesh Kumar Srivastava, v. State of U. P. & Others (Special Appeal No. 514 of 1992, decided on 191094), rendered by this Court (Allahabad Bench), the provisions of such Rules have to be strictly construed and the benefits thereof cannot be given to the dependent family member of the deceased employee who had died prior to the commencement of the Rules.

Further, as observed by this Court in its decision in the case of Harvansh Sahai Srivastava v. State of U P. & others, reported in 1990 (1) UPLBEC 220, rendered by a Division Bench of this Court, the cause of action for such an appointment as claimed by the petitioner would arise on the death of the employee who died in harness. It was indicated by this Court that it is at that time that the help is required by family and by no strech of imagination, it can be said that after more than nine years of the death of the employee, the dependent can seek the benefit of the Rules. In its aforesaid decision, this Court clearly observed that the application for appointment having been moved after more than nine years of the date of the death of the father, the petitioner in that case was not entitled to any relief from this Court in the exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. It may be noticed that the petitioner in the aforesaid case was a minor at the time of the death of his father and had moved the application after attaining majority.

In the present case on the facts pleaded by the petitioner, the ratio of the decisions indicated hereinbefore stand clearly attracted leaving no escape from the conclusion that no justifiable ground can be said to have been made out for exercising the extra ordinary jurisdiction envisaged under Article 226 of the Constitution of India.

Much reliance has been placed by the petitioner on the single Judge''s decision in the cases of Sunil Kumar Srivastava v. Collector/District Magistrate, Sultanpur and others, reported in 1993 (Supplement) ESC 37, Rajendra Kumar Shukla v. Director of Education Secondary and others reported in 1993 (3) ESC 25 and Smt Manbhawati Devi v State of U. P. and others, reported in 1993 (2) LCD 513, true copies whereof have been filed alongwith the writ petition as Annexures 4, 5 and 5A. However these decisions are distinguishable on facts and any case, cannot come to the rescue of the petitioner in view of the later decisions of the Apex Court and the decisions rendered by the Division Benches of this Court to which a reference has been made above, which I am bound to follow.

In view of the conclusions indicated hereinbefore, the writ petition is dismissed in limine.

(Petition dismissed)