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PANKAJ KUMAR MISHRA versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Pankaj Kumar Mishra v. State Of U.P. & Others - SPECIAL APPEAL No. 206 of 2005 [2005] RD-AH 553 (25 February 2005)

 

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).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 32

              Special Appeal No. 206 of 2005.

Pankaj Kumar Mishra                                 Petitioner.

                                                 Vs.

State of U.P.   & others.                             Respondents.

                       

                                                   ***************

Ho. S. Rafat Alam, J.

Hon. Vikram Nath,J.

This appeal arises from the order of the learned Single Judge dated 09.02.2005 in Writ Petition No. 5661 of 2005 (Pankaj Kumar Mishra vs. State of U.P. and others).

We have heard Sri Shesh Mani Mishra, learned counsel for the appellant and Sri Abhinava Upadhyay, learned Standing Counsel for the respondents.

The short facts giving rise to the writ petition and this appeal as appears from the pleadings of the appellant is that his father late Sri Gayatri Prasad Mishra was the Headmaster in Primary School, Sujaula, Block Saidabad, District Allahabad and died in harness on 18.02.1996. The appellant thereafter, made an application for giving him compassionate appointment under the provisions of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the Rules). When no decision was taken on the aforesaid representation, he approached this Court through Writ Petition No. 3474 of 2004, which was disposed of by order dated 04.02.2004 with the direction to the District Basic Education Officer, Allahabad to decide his above application in accordance with rules as expeditiously as possible preferably within a period of three months from the date of production of certified copy of that order before him. The District Basic Education Officer pursuant to the aforesaid order did not decide the same and referred the matter to the State Government vide order dated 11.05.2004 for condonation of delay in filing the application.

Being aggrieved by that order, the petitioner-appellant again approached this Court through Writ Petition No. 5661 of 2005, which was disposed off by the learned Single Judge vide order dated 09.02.2005 with the observation that liberty is given to the petitioner (appellant) to make fresh representation along with certified copy of the order within one month from today before the Principal Secretary, Basic Education, U.P. Lucknow, who shall take appropriate decision himself by a reasoned order, preferably within a period of three months from the date of production of certified copy of the order and decision taken on the same to be communicated to the petitioner forthwith. It is this order of the learned Single Judge, which is impugned in this appeal.

Learned counsel for the appellant submitted that clause (iii) of rule 5(1) of the Rules stipulate that application for employment should be made within five years from the date of death of the Government Servant. He further submitted that proviso to rule 5 (1) of the Rules provides that an application for giving compassionate appointment can be entertained even after 5 years if 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. Rule 5 of the Rules is quoted below:-

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.

   It is submitted that the petitioners application was filed within 5 years and, therefore, it was within time and there was no requirement for sending the application to the State Government for relaxation as the same was filed within time, but this aspect has not been considered by the learned Single Judge and the writ petition was disposed off with liberty to the petitioner appellant to make fresh representation to the State Government which was not the issue in the writ petition. It is pointed out that the District Basic Education Officer himself found that the application was filed on 15.2.2001 and the appellant's father expired on 18.02.1996 and as such it was filed before the expiry of 5 years and as such there was no occasion to refer the matter to the State Government for relaxation in time limit. Learned Standing Counsel appearing for the respondents however, could not point out any provision from the rules that if the application is filed within 5 years then also it has to be referred to the State Government for relaxation in time limit or for any further direction.

Therefore, having considered the submissions and looking to the facts of the case, we modify the order of the learned Single Judge dated 09.02.2005 to the extent that the District Basic Education Officer shall consider and examine the representation of the petitioner-appellant for giving him compassionate appointment in the light of the rules and also keeping in view various judgment of this Court as well as of the Apex Court, wherein it has been held that the object and purpose of giving compassionate appointment is to mitigate the hardship of the family members of the deceased employees, which is caused due to sudden demise of the sole bread earner of the family. It is true that such dependant of the deceased employee has no vested right to claim appointment as a matter of right on compassionate ground and are only required to be considered by the concerned authority as to whether such appointment is necessary to mitigate the hardship or not. We make it clear that our order may not be interpreted to have given direction for giving appointment to the appellant on compassionate ground and the District Basic Education Officer is only required to consider his application in accordance with law by a speaking order.

With the above modification in the order of the learned Single Judge this special appeal and the writ petition stands disposed off finally.

Dated: 25.02.05  

v.k.updh. (v-59)


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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