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Achin Singhal v. State Of U.P. And Others - WRIT - A No. 15190 of 2003  RD-AH 2749 (13 September 2005)
Civil Misc. Writ Petition No. 15190 Of 2003
State of U.P. and others. ..................................... Respondents.
Hon. Tarun Agarwala,J.
Heard learned counsel for the parties.
The petitioner's father died in harness on 12.3.1996. The petitioner's mother applied for an appointment under the Dying-in-Harness Rules on 23.3.1996. This application was rejected by an order dated 4.4.1997 on the ground that the petitioner's mother did not possess the requisite height. The petitioner's mother filed a review application and during the pendency of the review application, the petitioner attained the age of majority and consequently, the petitioner's mother moved an application (Annexure 7 to the writ petition) praying that in her place, the petitioner may be given an appointment under the Dying-in-Harness Rules. This application of the petitioner was rejected by an order dated 5.12.2002, on the ground, that in view of the Government Order dated 30.5.2001, the relaxation of the time limit was granted by the State Government only in those cases where the employee had been killed in action during the service. In my view, the approach adopted by the respondent is misconceived.
Rule 5 of the U.P. Recruitment of Government Servant Dying in Harness Rules, 1974 reads as under:-
"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)fulfils 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.
(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.
Under the proviso, the relaxation of the time limit has to be considered on its merit by the State Government in every individual case. The State Government cannot confine the proviso to be made applicable only in a particular eventuality. The State Government is required to examine each and every case where the application is filed beyond the prescribed period and can condone the delay where it is satisfied that the time limit fixed had caused undue hardship. Relaxation of the time lime of five years has to be passed by the State Government on subjective satisfaction in individual cases. The words "satisfaction" and "necessary for dealing with the case in just and equitable manner" indicates that each and every individual case for exemption of the time limit has to be considered on its merit by the State Government. Consequently, in my opinion, the Government Order dated 30.5.2001 confining the proviso to those cases where the employees are killed during the service period, is arbitrary and against the proviso to Rule 5 of the Rules of 1974.
Further I find that the power to exempt the period of limitation is with the State Government and, therefore, the application of the petitioner was required to be forwarded by the authority to the State Government. The authority itself could not reject the application.
In view of the aforesaid, the writ petition succeeds and is allowed. The order dated 5.12.2002, passed by the Senior Superintendent of Police, Aligarh is quashed. The matter is remitted back to the authority concerned, who shall forward the papers to the State Government within one month from the date of receipt of a certified copy of the order, and the State Government is directed to decide the matter on merits within two months without taking into consideration the Government Order dated 30.5.2001 (Annexure 1 to the writ petition) which I hold to be arbitrary and is also quashed.
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