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Avinash Peter v. State Of U.P. And Others - WRIT - A No. 47743 of 2006 [2006] RD-AH 14929 (31 August 2006)


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Court No. 38

Civil Misc. Writ Petition No. 47743 of 2006

Avinash Peter


State of U.P.  and others

Hon'ble V.K. Shukla, J.

Petitioner has approached this Court for issuing a writ in the nature of mandamus commanding the respondents for providing him compassionate appointment and for quashing the letter dated 18.10.2005.

Brief background of the case, as disclosed in the writ petition, is that petitioner's mother was working as Staff Nurse at B.R.D. Medical college, Gorakhpur. She died on 13.04.1996. Contention of petitioner is that his father, who is an employee of North-Eastern Railway, Gorkhpur, has contacted second marriage, and is not bearing the responsibilities of petitioner, his brother and sister, and as such compassionate appointment be provided to him. The Principal of the institution by means of communication dated  18.10.2005 has rejected the claim of petitioner by mentioning that  more than 9 years have passed since the death of her mother, and further the father of petitioner  is an employee of North-Eastern Railway, Gorkhpur, and in terms of the provisions as contained under U.P. Dying In Harness Rules, 1999, petitioner is entitled to be appointed on compassionate basis. At this juncture present writ petition has been filed.

Learned counsel for the petitioner contended with vehemence that the mother of petitioner having died in harness and the father having contacted second marriage, and petitioner living in pernicious condition is entitled for compassionate appointment,and thus, claim of petitioner has been illegally rejected.

Learned Standing  Counsel countered the said submission by contending that claim of petitioner is totally contrary to Rules, as such writ petition is liable to be dismissed.

Undisputed position is that petitioner's father is still in service of North-Eastern Railway, Gorkhpur, and it may be a hard case that he may not be supporting the petitioner, but in view of the provisions as introduced by U.P. Dying in Harness (Fifth Amendment) Rules, 1999, petitioner cannot be extended the benefit of compassionate appointment. Rule 5 is specific, that after enforcement of Rules, if any Government Servant  dies in Harness, and her husband of his wife, as the case may be, is not in employment of any Central Government, State Government; any Corporation owned and controlled by Central Government or State Government, then in that event one member of the family is entitled for compassionate appointment, subject to fulfillment of terms and conditions specified. Here, father of  petitioner is in Central Government service, consequently, claim of petitioner has been rightly rejected, strictly in consonance with Rules.

Division Bench of this Court in the case of Sanjai Srivastava vs. Life Insurance Corporation of India & others in Special Appeal No. 837 (D) of 2004 has already considered the issue which has been sought be raised in the present case and has taken the view that legislation by the judiciary is not permissible and the Court cannot read something which is not in the provision. Based on this principle in the aforementioned case compassionate appointment has been refused when any son of deceased is employed. Similar is the situation here also wherein brother of petitioner is gainfully employed and thus, claim of petitioner is clearly not maintainable, as that would be  in the teeth of the aforementioned provision, Writ of mandamus cannot be issued for violating the provision.

Consequently, writ petition lacks merit and is dismissed.




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