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ATUL KUMAR RAI versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Atul Kumar Rai v. State Of U.P. And Another - WRIT - A No. 3979 of 2005 [2006] RD-AH 2 (1 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 9

Civil Misc. Writ Petition No. 3979 of 2005

Atul Kumar Raised

versus

State of UP & another

Hon'ble Sunil Ambwani, J.

Heard learned counsel for the petitioner and learned standing counsel.

The brief facts giving rise to this case are that the petitioner's father was posted as Reader in the office of Collectorate at Ballia. He died in harness in the year  1979. The petitioner was born on 25.9.1980,  after the death of his father. He passed High School and Intermediate examinations in the year 1995 and 1997 respectively. His mother did not make any application claiming  compassionate appointment for herself. The petitioner applied for compassionate appointed on Class III post on 9.10.1998. The application was referred by the Collector to Board of Revenue, which has passed the impugned order dated 20.5.11999 referring the matter back to the Collector to decide the same. The proviso to  Rule-5 added vide notification dated 20.1.99 of the U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules 1974,  gives the authority to relax the period beyond five years the State Government

Learned counsel for the petitioner submits that  the application was filed before the insertion of the proviso and thus the Collector is the competent authority to grant compassionate appointment. He has relied upon Division Bench judgement of this Court in Pushpendra Singh vs. Regional Manager, U.P. SRTC, Aligarh in which this Court directed that such application should be considered taking into account the financial hardships to the family.

The question of grant of compassionate appointment  has been considered and decided by the Apex Court in large number of decisions. The law in this regard has been fairly well settled in Umesh Kumar Nagpal vs. State of Haryana 1994 (4) SCC 138; Sushma Gosain vs. Union of India 1989 (4) SCC 468; Sanjay Kumar vs. State of Biohar, 2000 (7) SCC 192; Director of Education (Secondary) vs. Pushpendra Kumar 1998 (5) SCC 192; Jugdish Prasad vs. State of Haryana 1996 (1) SLR 7 ; Amol singh vs. State of U.P., 2000 (3) ESC 1935.

It was held in these cases that compassionate appointments is not a vested right or heritable right. It is not by way of  an alternative mode of employment. It should not be granted after unreasonable delay as the vacancy cannot be held up

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until the person attains the majority. The Court cannot direct any supernumerary post to be created. These appointments are given to tide over the immediate financial crisis  faced by the family of the deceased employee. Recently the Supreme court has once again reiterated these principles and has held in State of Manipur vs. Mohd. M.B. Rajaodin 2003 (99) FLR 337 that the appointment after 18 years was not warranted. The Supreme Court reiterated all the aforesaid decisions. Para 10 and 11 of the judgement are quoted as below;

"10. In Smt. Sushma Gosain and others v. Union of India and others,' it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (Smt.) vs. Union of India and others, and Union of India and others v. Bhagwan Singh. In Director of Education (Secondary) and another vs. Pushpendra Kumar and others, it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made  for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care, however, has to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek  appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependent of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely tWP/ 5874/05he right conferred by the main provision.

11.In State of U.P. and others v. Paras Nath, it was held that the purpose of

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providing employment to the dependant of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years."

In Director, Defence Metal Research Laboratory and another vs. G. Murali, 2003 9 SCC 247, the Supreme Court did not appreciate the order of the High Court directing compassionate appointment after 18 years by creating a supernumerary post.

In the present case, the petitioner was not even born when his father died in harness. The family has survived without any help for last 25 years. This Court cannot consider to grant the benefit of compassionate appointment after such a long time. The department cannot wait for the child, who was not even born, at the time of  the death of his father, to attain majority  and attains  qualifications for giving him appointment on compassionate ground. The Rules of 1974,  are totally silent with regard to such case. The proviso to Rule 5 of the Rules of 1974 states that in such case where applications have been made beyond five years, the State Government shall consider whether any undue hardship is caused in a particular case and to dispense with or relax the  requirement in a just and equitable manner. These considerations for relaxing the delay cannot be stretched to  absurdity and condone the delay of 25 years. Further, I find that there are  no such averments  which may demonstrate as to how the petitioner's family has survived for so long or that it is still facing any exceptional hardships, which may have entitled to petitioner for consideration for compassionate appointment as this stage.

The writ petition is dismissed.

Dt. 31.1.2005

RKP/-


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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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