Vibha Singh vs State of U.P. and Others

Anil Kumar, J.—Heard Sri M.G. Tripathi, learned counsel for petitioner, Sri Badrul Hasan, learned Additional Chief Standing Counsel and perused the record.

Facts in brief of the present case are that petitioner''s husband Chandra Pratap Singh (now deceased) was daily wager employee working on the post of Registration Clerk in the office of Sub Registrar, Tarabganj, Gonda, in the year 1991, his services were orally terminated, so approached this Court by filing Writ Petition No. 4523 (SS) of 1991.

On 02.08.1991, this Court has passed an order, on reproduction reads as under:--

"List after six weeks to enable the standing counsel to seek instructions. IN the meantime, it is provided that in case, the persons who were appointed alongwith the petitioner are being still allowed to continue, the petitioner shall also be accommodated and allowed to work."

Thereafter, Sri Charan Pratap Singh was allowed to work and discharge his duties as daily wages employee on the post of Registration Clerk in the Office of Sub-Registrar, Tarabganj, Gonda. By order dated 03.01.1993 the same was disposed of with the following direction:--

"The petitioner is a daily rated registration clerk working in district Gonda. His services were terminated but because of the interim order of this Court dated 2nd August 1991 he is continuing. Several writ petitions by such class of employees were filed in this court and writ petition No. 3721 of 1990 was allowed. Following they judgment given in the said writ petition a writ in the nature of mandamus is issued to the opp. Parties to continue the petitioner as daily rated registration clerk if there exists a vacancy and the petitioner shall continue to serve till a regular selection for the said post is made provided the conduct of the petitioner is found satisfactory. It is further decided that whenever any regular selection is made the petitioner shall also be considered for the post by the opp. Parties.

With the above observations the writ petition is disposed of accordingly."

As the petitioner''s husband case has not been considered, so he filed a Writ Petition No. 28 (SS) of 2001 (Charan Pratap Singh v. State of U.P. and others) on 05.01.2001 an order was passed, relevant portion quoted as under:--

"In view of the aforesaid facts, the opposite parties are directed to consider the case of the petitioner for regularisation within six weeks from the date of certified copy of this order, if he is otherwise eligible."

However, he died on 21.12.2013. After his death, petitioner submitted a representation for considering her case for compassionate appointment, rejected by order dated 13.03.2012 (Annexure No. 1) under challenge in the present writ petition.

After hearing learned counsel for parties and going through the record, the admitted position which emerged out is that petitioner''s husband was a daily wages employee on the post of Registration Clerk under respondent No. 4, died in the said capacity, so the sole question to be considered is whether the petitioner is entitled for compassionate appointment is entitled for compassionate appointment or not.

The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 ("the Rules, 1974") came into force on 21 December 1973. Rule 3 provides that the Rules shall apply to the recruitment of dependents of deceased government servants to public services and posts in connection with the affairs of the State of Uttar Pradesh, except those which are within the purview of the Uttar Pradesh Public Service Commission.

The expression ''government servant'' is defined in Rule 2(a) of Rules, 1974 to mean a government servant employed in connection with the affairs of the State, who (i) was permanent in such employment; or (ii) though temporary had been regularly appointed in such employment; and (iii) though not regularly appointed, had put in three years'' continuous service in a regular vacancy in such employment. The expression ''regularly appointed'' is defined by the Explanation to Rule 2(a) of Rules, 1974 to mean "appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be". 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 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-

(i) fulfills the educational qualifications prescribed for the post,

(ii) is otherwise qualified for government service; and

(iii) 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 the same 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.

(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."

Rule 6 of the Rules provides for the contents of an application for employment in the following terms:

"6. Contents of application for employment. -An application for appointment under these rules shall be addressed to the appointing authority in respect of the post for which appointment is sought but it shall be sent to the Head of Office where the deceased Government servant was serving prior to his death. The application shall, inter alia, contain the following information:

(a) the date of the death of the deceased Government servant; the department in which he was working and the post which he was holding prior to his death;

(b) names, age and other details pertaining to all the members of the family of the deceased, particularly about their marriage, employment and income;

(c) details of the financial condition of the family; and

(d) the educational and other qualifications, if any, of the applicant."

Rule 8 is in the following terms:

"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.

(3) An appointment under these rules shall be made against an existing vacancy only."

The first requirement under Rule 5 of Rules, 1974 is that the spouse of the deceased should not be already employed by the Central or State Governments or by a Corporation owned or controlled by them. Where this condition is met, one member of the family can be given suitable employment in government service in relaxation of the normal recruitment rules, provided three conditions are fulfilled. The first is that the applicant must fulfill the educational qualifications prescribed for the post; the second is that the applicant must be otherwise qualified for government service; and the third is that the application for employment must be made within five years from the date of death of the government servant. The first proviso to Rule 5 of Rules, 1974 empowers the State Government to dispense with or relax the time limit for making an application for employment, for dealing with the case in a just and equitable manner, where government is satisfied that the time limit of five years for making an application for employment causes undue hardship in any particular case. Under the second proviso, a burden is cast on the applicant to establish a case of undue hardship by explaining the reasons and furnishing a proper justification, in writing, regarding the delay caused in making the application for employment after the expiry of the time limit of five years. This explanation has to be accompanied by necessary documents and proof in support of the reasons for the delay. The Government has to take an appropriate decision after taking into consideration all the facts leading to such delay.

The Rules, 1974 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, 1974. Firstly, the spouse of the deceased government servant must not already be employed in the Central or State Governments or their Corporations. If the spouse is so employed, then obviously, there would be no warrant to grant compassionate appointment since the spouse would be expected to provide to the members of the family a nucleus for sustaining their livelihood.

Secondly, the applicant himself should not be employed with the Central or State Governments or their Corporations.

Thirdly, an application for appointment has to be made within five years from the date of death of the government servant.

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 first proviso to Rule 5 of Rules, 1974, however, confers upon the State Government a discretion to dispense with or relax the requirement of submitting an application in five years. This power is not unguided and is not left to the arbitrary discretion of the decision-making authority. Every discretionary power in public law has to be structured on objective principles. The first proviso requires the Government to be satisfied that the strict application of the norm of five years for submitting an application would cause undue hardship. The dispensation or relaxation is in order to deal with a case in a just and equitable manner.

Under the second proviso of Rule 5 of the Rules, 1974, the burden has been cast on the applicant to furnish reasons and produce a justification together with evidence in the form of documents and proof in support of the cause for the delay in making an application within the stipulated period. Finally, on this aspect of interpretation, it must be emphasized that an applicant for employment under the Rules has to disclose in a full, true and candid manner, details of the financial condition of the family as well as all relevant details pertaining to the members of the family of the deceased including their names, age and status in regard to their marriage, employment and income.

All these aspects have a bearing on the financial need of the family which has to be assessed before a decision is taken to grant compassionate appointment. The discretionary power to relax the time limit of five years 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. The Rules indicate, in consequence, that an application for compassionate appointment, which is in relaxation of the normal recruitment Rules, must be made within a period of five years of the date of death of the government servant.

But the State Government is conferred with a discretionary power to relax the requirement of five years in order to alleviate a situation of undue hardship so as to deal with a case in a just and equitable manner. The satisfaction of the State Government before it exercises the power of relaxation is not a subjective satisfaction but must be based on objective considerations founded on the disclosures made by the applicant for compassionate appointment. Those disclosures, in writing, must necessarily have a bearing on the reasons for the delay and on whether undue hardship within the meaning of the first proviso to Rule 5 of Rules, 1974 of the Rules would be caused by the application of the time limit of five years. The expression ''undue hardship'' has not been defined in the Rules, 1974. Undue hardship would necessarily postulate a consideration of relevant facts and circumstances including the income of the family, its financial condition and the extent of dependency.

Keeping in view the abovesaid facts as well as the decision given by the full Bench of this Court in the case of Pawan Kumar Yadav Vs. State of U.P. and Others, , after placing reliance on the judgment given Hon''ble the Apex Court in the case of General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Others, , held as under:--

"26. On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi (Supra), we answer the questions posed as follows:--

"1. A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ''Government servant'' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules.

The judgments in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi v. State of U.P. (Writ Petition No. 24231 of 1998 decided on 2.3.1998); State of U.P. v. Maya Devi (Special Appeal No. 409 of 1998); Santosh Kumar Misra v. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615 ; and Anju Misra (Smt.) Vs. General Manager, Kanpur Jal Sansthan, giving benefit of compassionate appointment to the dependants of daily wage and workcharge employee have not been correctly decided."

I view of the abovesaid facts, I do not find any illegality or infirmity in the impugned order dated 13.03.2012 (Annexure No. 1) thereby rejecting the claim of the petitioner for compassionate appointment on the ground that her husband was daily wager employee on the post of registration clerk.

Accordingly, the writ petition lacks merit and is dismissed.