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Smt. Sushma v. State Of U.P. Thru' Secre. Power Corporation U.P. And Ors. - WRIT - A No. 4057 of 2006 [2006] RD-AH 2045 (25 January 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).



Court No. 7

Civil Misc. Writ No. 4057 of 2006

Smt. Sushma ... Petitioner


State of U.P. and others ... Respondents

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties.

This petition has been filed by Smt. Sushma who claims herself to be the dauthter of late Sri Kalyan Singh, who was a class IV employee in U.P. Power Corporation.

It is claimed that late Sri Kalyan Singh, father of the petitioner was posted as Store Keeper in the office of the Executive Engineer, Vidyut Parikshan Khand, U.P. Power Corporation Ltd., Victorial Park, Meerut- respondent no. 2 and died in harness on 4.2.1975.  It is further claimed that the mother of the petitioner also died on 15.5.1976; that the petitioner was brought up in orphanage as she was only 5 years old at that time and there was no one in the family to look after her.

Counsel for the petitioner submits that the petitioner was marked to one Sri  Santosh Kumar, resident of village Madi, Post Puraina, District Basti in 1995 from the orphanage itself.  After marriage, the petitionr moved an application to the Executive Engineer, Vidyut Parikshan Khand, U.P. Power Corporation Ltd., Victorial Park, Meerut- respondent no. 2 on 16.3.1999, i.e,., almost after 10 years of marriage requesting for giving her appointment on compassionate ground under the Dying in Harness Rules but her request was not considered.   However, the Executive Engineer, Vidyut Parikshan Khand, U.P. Power Corporation Ltd., Victorial Park, Meerut- respondent no. 2 vide his letter dated 28.9.2004 asked the petitioner to furnish death certificate of late Sri Kalyan Singh and also succession certificate. According to the petitioner, they were furnished by her but thereafter nothing was heard despite her representations dated 16.3.1999,15.5.2002 and 14.9.2005. Her application for compassionate appointment remained unactioned.

Counsel for the petitioner, in support of his contention that the petitioner is entitled for compassionate appointment, relied upon the decisions of this Court in Civil Misc. Writ Petition No.16549 of 1997-Manoj Kumar Saxena V. District Magistrate Bareilly and others, decided on 23.2.2000; Civil Misc. Writ Petition No.23907 of 2000-Shri Ram Pandey V. Senior Superintendent of Police Varanasi and others decided on 21.5.2001 and Special Appeal No.1265 of 1999-Pushpendra Singh V. Regional Manager, U.P. S.R.T.C Aligharh and another decided on 8.12.1999.  He submits that in the aforesaid cases, the dependants of Government servants who died in harness were given appointment on compassionate ground by the concerned departments after waiving the period of limitation as the dependants were minor at the time of demise of the concerned deceased employee.

Records of the aforesaid cases were called for and have been perused by this Court. In Civil Misc. Writ Petition No.16549 of 1997-Manoj Kumar Saxena (supra), the petitioner was minor -aged about 12 years when his father late Ram Bahadur Saxena who was Lekhpal in Tahsil Faridpur, district bareilly died in harness on 13.8.1987. The sole controversy in that case revolved on the point whether the delay in applying for the appointment on compassionate ground could be allowed where the applicant was minor on the date of death of his father?  It was held as under :;

" Similar controversy arose  before a Division Bench of this Court. After considering the decision rendered by the Hon'ble Supreme Court in Jagdish Prasad V. State of Bihar and Anr. (1986)1 SLR-7 and also taking into account the observations of this Court made in special Appeal No. 1265 of 1995- Pushpendra Singh V. Regional Manager, U.P. S.R.T.C Aligharh and another the Division Bench in Special Appeal No. 28 of 2000-Sanjay Kashyap V. Chief Medical Officer, Maharajganj and others held that "the proviso to Rule 5(1) of the U.P.Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, as inserted by notification dated 13th October, 1993, visualizes that if the State Government is satisfied that denial of the compassionate appointment under the Dying in Harness Rules due to any delay in moving the application would cause undue hardship, the same may be considered in relaxation of the rule of limitation in order to do complete justice."

It is not disputed that at the time of the death of his father in 1987, the petitioner was minor. The rule does not permit a minor to get an employment on compassionate ground. Therefore, when he attained the eligible age in 1993, applied for appointment on compassionate ground. In such state of circumstances, I am of the view that there was no delay in moving the application by the petitionr for consideration.

Having regard to the views expressed by the Division Bench in the Special Appeal No. 28 of 2000, referred to above, and also having regard to the facts and circumstances in which the petitioner could not apply for his appointment under Dying in Harness Rules, within the stipulated period and also in the light of the proviso to Rule 5(1) of the Rules, I am of the view that the petition should be allowed.

The petition is allowed and the impugned order dated 1.4.1997 passed by the respondent no.3 is quashed. The respondents are directed to consider the application of the petitioner for compassionate appointment keeping in view the aforesaid provision and other att4ending circumstances and take appropriate decision in the matter, within a period of two months from the date of production of a certified copy of this order.

Dt/ 23.2.2000                                         Sd/- Illigible."

In Civil Misc. Writ Petition No.23907 of 2000-Shri Ram Pandey (supra), the petitioner was born after 6 months of the date of death of his father.  The father of the petitioner was in Police service.  The Senior Superintendent of Police had submitted recommendation in favour of the petitioner for decision regarding waiving the period of limitation. The State Government in that case ignored the recommendations of the Police officers.  In the circumstances, this Court observed thus :-

" In the cases reported in 1998(32) ALR 532, 1997(77) FLR-768(SC) and AIR 1997 SC 3288, it has been held that compassionate appointment cannot be claimed as of right. In the case reported in AIR 1996 SC-2445 the Apex Court held that State through its instrumentality/authorities should frame Rules/Regulations/Orders for making a compassionate appointment which may stand the test of Articles 14 and 16, Constitution of India.

Our Courts in the cases of 1997(Suppl) AWC 701, (1994)SCC-560, (1994)1UPLBEC-12 (Director of Education (Basic), (1991)1 UPLBEC 345, AIR 1996 (2)SC-42, 1997(3)UPLBEC-2047, 1994(4) SCC-137 held that scheme contemplating dying in harness is to meet emergent crisis and it shall not be proper to give belated appointment. However, by passage of time and experience, the Court expanded the theory of compassionate appointment by providing that no rigid rule of limitation should be applied in the matter of compassionate appointment and such a claim may be considered, in the light of the facts and circumstances of each case even if such a claim is being made belatedly. This gave an occasion to the State Government for issuing Government Order providing for reference of cases to the Government for seeking approval before making compassionate appointment in case the same was being made beyond five years of the death of the employee, in question. No Rule and/or order or decision to the knowledge of this Court lays down that compassionate appointment is to be made even if the family of the deceased employee is not in distress.  In other words, compassionate appointment cannot be justified only on the ground that some employee of the State Government or State Authority/instrumentality has died. The condition precedent is not death of an incumbent in service, but also existence of distress of the family requiring a help hand by providing compassionate appointment.

It is strange that in none of the Government orders or Rules, this Court has noticed a reciprocal condition requiring an undertaking from the beneficiary claiming compassionate appointment under Compassionate Rules/Order like giving a bond or declaration to the effect that on getting compassionate appointment such a beneficiary shall be under statutory obligation to maintain other dependants of the family of the deceased-incumbent and in case he fails to discharge such a statutory obligation, he shall be liable to loss the job and fact other such consequences as may be provided by statutory Rules/Government Orders.  One should not lose sight of the fact that a beneficiary under compassionate appointment gets over benefit of the deceased.

This Court is convinced that the Government authorities including the present Respondents have failed in not providing statutory obligation in the light of the above.

This Court, therefore, directs that a copy of this judgment shall be sent to the Chief Secretary for necessary information and further direction for introducing mandatory provision in the relevant Rules providing for compassionate appointment within three months of production of a certified copy of this judgment. Registrar is directed to send a copy of this judgment within two months from today. This Chief Secretary is hereby commanded to inform this Court of the action taken at his end and the Registrar shall placed record of the case on 15th October, 2001 in Chambers before me since the petition is being finally decided.

The writ petition stands allowed subject to the observation and direction given above.

21.5.2001                                                       Sd/- Illigible"

In so far as Special Appeal No.1265 of 1999-Pushpendra (supra) is concerned, it arose from the judgment and order dated 4.11.1999 passed in Writ Petition No. 46695 of 1999 dismissing the writ petition in limine. In that case, father of the appellant,  an employee of U.P. State Road Transport Corporation died in harness on 21.8.1984 when he was minor and he attained majority on 12.12.98. Thereafter, he applied for compassionate appointment on 23.2.1999. His claim was rejected by Regional Manager, U.P. S.R.T.C, Aligarh vide order dated 30.6.1999.  The writ petition preferred by the appellant was also dismissed on the ground that after such a long time of death of the deceased, the right of the claimant stood extinguished. The Division Bench, after considering the decisions in Umesh Kumar Nagpal V. State of Haryana and others- (1994)4 SCC-138 ; Jagdish Prasad V. State of Haryana-1996(1) SLC-7 and Haryana State Electricity Board V. Naresh Anwar -1996(2) SLR-11 held :-

".... However, by reason of reliance upon the said observations as also upn the Rules which envisage consideration of an application for compassionate appointment made even after five years of the death of the employee if the circumstances so warrant, the appeal is disposed of post-fixed with the observation that in case in case an application is moved, the respondents may reckon with the feasibility of a temporary appointment, if the family is still reeling under financial straits.

8.12.99           Sd/- N.K. Mitra, C.J.

                                                                                  Sd/- S.R.Singh, J"

There is no doubt that the State Government has power to waive the period of limitation of five years after consideration of the facts and circumstances of each case but  the present case is different in the sense that the petitioner, after marriage was no longer a dependant of the deceased employee. The petitioner being a married daughter, I am of the opinion that she is not eligible for appointment on compassionate ground.  Moreover, she moved her application after about 10 years of marriage.

In these circumstances, the writ petition is devoid of any merits, and is accordingly dismissed. No order as to costs.

Dt. 25.1.2006



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