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Ajit v. State Of U.P. And Ors. - WRIT - A No. 30882 of 2000 [2004] RD-AH 863 (22 September 2004)


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Court No. 6/AFR

Civil Misc. Writ Petition No. 30882 of 2000.

Ajit ...................Vs.........State of U.P. through Maha Nideshak

Chikitsa Avam Swasth Sewaye, U.P.

And others.


Hon'ble R.B. Misra, J.

Heard Smt. Usha Srivastava, learned Counsel for the petitioner, and Sri Sandeep Mukherjee, learned Standing Counsel for the State respondents.

In this petition prayer has been made for issuance of writ of mandamus directing the respondents to appoint the petitioner to the suitable post on compassionate ground after death of his father Late Daya Kishan.

It appears that father of the petitioner, namely, Daya Kishan was working as a Sweeper in the department of Medical Health and Family Welfare and was suspended on 15.01.1978 and was arrested for his alleged involvement in the offence under Section 302 I.P.C. and after trial he was convicted by the Additional Sessions Judge, Kanpur on 06.03.1979, against which the Criminal Appeal No. 891 of 1979 preferred by Late Daya Kishan in the High Court was dismissed on 12.03.1991, and the special leave petition preferred against the above orders too was dismissed by the Supreme Court on 04.11.1997. Consequently, the petitioner's father was sent to jail to undergo the sentence, however, where he expired on 23/24.01.1998 in jail. At the relevant time neither wife of deceased Daya Kishan nor his son came forward for claiming appointment on compassionate ground under ''The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974' (hereinafter in short called as the ''Rule, 1974').

According to the petitioner, lien of his father Late Daya Kishan was maintained in the department of Medical Health & Family Welfare, as though the conviction has been affirmed by the Supreme Court, but the service of the petitioner's father was not dispensed with and the period during which Late Daya Kishan was languishing in jail till his death could be treated in service and after his death the petitioner shall be entitled for the appointment on compassionate ground.

By order dated 27.02.2003 this Court was pleased to direct the respondent authorities to file affidavit. In compliance thereto they have filed affidavit indicating that the benefit of ''Rules, 1974' could only be given to the dependent of a person, who died in harness during service, and since the petitioner's father was under suspension and was convicted for offences under Section 302 I.P.C., therefore, for the period in jail to undergo the sentence awarded for criminal offences, the petitioner's father can not be said to be in employment as per the ''Rules, 1974'.

Rule 2(a) of the ''Rules, 1974' provides as under:-

"2. (a) "Government servant" means a Government servant employed in connection with the affairs of Uttar Pradesh who-

(i) was permanent in such employment; or

(ii) though temporary had been regularly appointed in such employment; or

(iii) though not regularly appointed, had put in three years continuous service in regular vacancy in such employment."

Rule-2(b) of the ''Rules, 1974' defines as "deceased Government servant" means a Government servant who dies while in service.

This Court in 2004 (3) AWC 2080 (Smt. Rajodevi and another Vs. State of U.P. and others) in paragraphs-9 and 10 has noted as below:-

"(9) The object of compassionate appointment is to enable the penurious family of the deceased employee to tide over sudden financial crisis and not to provide employment. This is because as a rule appointments in public service should be made strictly on the basis of open invitation of applications and no other mode of appointment nor any other consideration is permissible. However, to this general rule, which is to be followed strictly in all cases of public appointment, there are certain exceptions carried out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee died in harness and leaving his family in penury and without any means of livelihood. In such cases out of humanitarian consideration taking into consideration the fact that unless some 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 dependants of the deceased employee, who may be eligible for such employment. So, the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis. Laying down the above principles in Umesh Chandra Nagpal v. State of Haryana and others, (1994) 4 SCC 138; Jagdish Prasad v. State of Bihar and another, (1996) 1 SCC 301 and S. Mohan v. Government of T.N. and another, (1998) 9 SCC 485, the Supreme Court has cautioned that the object is not to give a member of such family a post not less than the post held by the deceased employee.

(10) Mere death of an employee not sufficient to entitle the dependant of the family for compassionate appointment. The Government or the public authority concerned has to examine the financial condition of the family, and it is only when it is satisfied that but for the provision of employment the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The Supreme Court has cautioned that it must be remembered that as against the destitute family of the deceased, there are millions of other families, which are equally, if not more destitute. It is, therefore, pointed out by the Supreme Court in Umesh Chandra Nagpal (supra); Jagdish Prasad (supra); Director of Education (Secondary) and another v. Pushpendra Kumar and others, (1998) 5 SCC 192; that an exception to the general rule that all appointments in public service shall be made strictly on the basis of open selection on merits, is made in favour of the family of the deceased employee in consideration of the services rendered by him and the legitimate expectations and changes in the status and affairs of the family engendered by erstwhile employment which are suddenly upturned. The Supreme Court also indicated that the compassionate appointment cannot be granted after a lapse of reasonable period if that be so, it must be specified in the rules and the object being to enable the family to tide over the financial crisis which it faces because of the sudden death of the sole bread-earner, the compassionate employment cannot be claimed and offered after long lapse of time moreso, when the crisis is over, it is because, the consideration of such employment is not the vested right, which can be exercised at any time in future."

I have heard learned Counsel for the parties. I find that petitioner's father Late Daya Kishan was in jail for undergoing sentence for the conviction for his involvement for the offences under Section 302 I.P.C. affirmed by the Supreme Court and during imprisonment he died in jail on 23/24.01.1998. The period, during which Late Daya Kishan was in jail can not be said to be in employment or in service, irrespective of the fact whether the termination order has been passed or not by the respondent employer, more so the ground of permissible leave including medical leave, earned leave or any kind of leave shall not meet the requirement of acknowledging and treating Late Daya Kishan in service. The death of late Daya Kishan can not be said to have occurred during employment or in service and at most relevant time the wife and son of deceased Daya Kishan did not come forward to claim for appointment on compassionate ground, therefore, at this belated stage no direction could be made for giving appointment to the petitioner on compassionate ground under the Dying in Harness Rules, 1974.

In view of the above observations, the writ petition is dismissed.

Dated: 22.09.2004.



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