Hon''ble Rakesh Tiwari, J. and Hon''ble Dinesh Gupta, J.@mdashHeard learned counsel for the parties and perused the record.
2. This special appeal is preferred challenging the validity and correctness of the judgment and order dated 6.11.2007 by which the Civil Misc. Writ Petition No. 11036 of 2006, Mahendra Pratap Sharma versus State of U.P. and others has been dismissed. The appellant also prays for setting aside the order dated 18.9.2002 passed by respondent No. 2, Director, Panchayat Raj, U.P. Lucknow rejecting the claim of the appellant for compassionate appointment under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as " 1974 Rules") which was impugned in the writ petition.
3. At the time of admission following order was passed by the Division Bench of this Court on 22.1.2008.
Heard Sri B.N. Singh on behalf of the appellant. Sri Yogendra Yadav appears for the respondents.
The appeal seeks a question with respect to interpretation of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. The matter requires consideration. The appeal is admitted. The appeal be listed for final hearing in the week beginning on 12.2.2008.
4. The ground of challenge by the appellant is that the order dated 18.9.2002 passed by the Director Panchayat Raj U.P. in pursuance of the judgment dated 6.5.2002 in Civil Misc. Writ Petition 18812 of 1001, M.P.Sharma versus State of U.P. and others is illegal and is liable to be set aside by which the Court directed respondent No. 2 to consider the question of condonation of delay. The authority, however, rejected the prayer for condonation of delay by order dated 18.9.2002 on the ground of latches of more than 5 years in moving the application for compassionate appointment. The power of condonation of delay vests the authority with power of relaxation in limitation to the applicant in moving an application for appointment on compassionate grounds. It is stated that the order dated 18.9.2002 suffers from non-application of mind, non-speaking and against the judgment dated 6.5.2002.
5. Learned counsel for the appellant has relied upon judgment in 2010(7) A.D.J.-1 (DB), Vivek Yadav versus State of U.P. and others and submits that similar controversy has been decided by Division Bench of this Court in which application for compassionate appointment was rejected by respondents under Rule 5 of 1974 Rules. In that case, the father of the petitioner had died on 26th May, 1986. It was argued therein that as soon as the petitioner became major, he moved an application for compassionate appointment but the writ petition was dismissed by the learned Single Judge. On appeal being filed, the appellate Court set aside the judgment of the learned Single Judge. The same judgment has been relied upon in Subhas Yadav versus State of U.P. and others, 2010 (10) ADJ 289. In the judgment of the Apex Court the case of
6. It is also stated that similar Rule was considered by the Division Bench of this Court in judgment reported in 2008 (2) A.D.J. 433 (DB), Chairman-cum-Managing Director, U.P. Power Corporation Ltd. versus Jitendra Pratap Singh and 2000 (2) E.S.C. 967, Manoj Kumar Saxena versus District Magistrate, Bareilly and others wherein the father of the applicant Manoj Kumar died on 13.8.1987 when he was 12 years old. In this case also the applicant moved an application for appointment on compassionate grounds when he attained majority. His application was also rejected on the ground of delay. The learned Single Judge considering the judgment of the two Division Benches quashed the order of rejection and held that as the applicant moved an application within 5 years of his attaining majority as such there is no delay in moving application and directed the concerned authorities to take decision on merit on the application.
7. Relying upon the case of Manoj Kumar Saxena''s case similar view was taken by the learned Single Judge of this Court in the case of Dharmendra Singh versus State of U.P., 2005 (3) U.P.L.B.E.C. 2426 relying upon the case of Manoj Kumar Saxena''s case. In Sunil Kumar Srivastava versus Collector/District Magistrate, Sultanpur, 1993 (supp) E.S.C.37 (L.B.) when father of the petitioner died on 9.9.1973, U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 was not in existence. It came to be operative on 31.12.1973.In that case it was held that the dying in harness rule is social legislation. It should not be considered in strict sense. Similar view is said to have been taken by the learned Single Judge of this Court in Manoj Kumar versus State of U.P. and others, 2009 (4) A.D.J. 89 wherein the father of the applicant died in harness on 17.9.1987 when the petitioner was minor. After he became major, he moved an application on 27.8.1994 which was rejected on 21.3.1997. In paragraph 7 of the judgment the Court quashed the impugned order therein holding that 1974 Rules extend consideration of statutory right to dependents of deceased employee in Government job and it is incumbent upon the State authorities to consider the hardship of livelihood which is a fundamental right guaranteed under the Constitution.
8. It is further stated that in 2009 (120) F.L.R. 164, Shiv Murati versus State of Andhra Pradesh Government, the scheme providing for compassionate appointment on retirement on medical invalidation was quashed by Andhra Pradesh High Court holding such scheme to be violative of Articles 14 and 16 of the Constitution of India but in appeal Supreme Court quashed the judgment holding the scheme to be constitutionally saved by Articles 14 and 16 of the Constitution of India. It is stated that judgment of the learned Single Judge impugned in special appeal is against the judgment of the aforesaid Supreme Court, hence the provision of Rule 5 of the Dying in Harness Rules, 1974 is not applicable and the view taken by the learned Single Judge in paragraphs 19,20 and 22 of the judgment is contrary to rule 5 which had been affirmed by Division Benches of the Andhra Pradesh High Court referred to above.
9. He then submits that the judgment passed by the learned Single Judge is also against the binding precedence of the Co-ordinate Benches and Division Bench judgments of this Court referred to above and in view of the Division Bench judgment in Kuldeep Tripathi versus Ram Bahadur and others, 2008 Vol.6, A.D.J.741 (DB) wherein it was held that the learned Single Judge or Division Bench is bound by earlier judgment passed by same strength or Division Benches and if Judges not agreed, has to refer the matter to Chief Justice for constituting larger Bench and similarly in Vijay Bihari Srivastava versus U.P. Posted Primary Cooperative Bank Ltd. 2003(1) U.P.L.B.E.C., five Judges Bench of this Court observed that a division Bench cannot hold that an earlier full Bench decision is not binding precedence due to subsequent judgment of the Apex Court as such the impugned judgment is contrary to previous binding judgments of this Court passed by the learned Single Judges and Division Benches.
10. He next submits that the learned Single Judge in his decision relied on various Supreme Court judgment in which Rule 5 of Dying in Harness Rule 1974 was not under consideration and those judgments have no universal application in all cases of compassionate appointment. The Supreme Court judgments are to be interpreted and applied in particular facts of the case. Same view is said to be taken by the Supreme Court in
11. The counsel for the appellant argues that learned Single Judge in the impugned judgment has considered certain facts which have not been considered by respondent No. 2 in the impugned order dated 19.9.2002. Those facts have been taken from the counter affidavit which has been sworn by deponent on the basis of information received from file without enclosing any documents and such averment cannot be accepted in view of the law laid down by the Apex Court in Mohindra Singh Gill and others versus Chief Election Commission of India and others.
12. Learned counsel for the appellant submits that the learned Single Judge has not considered paragraphs 16 and 19 of the writ petition in which the appellant has narrated his miserable family condition and continuing disturbing economical condition which was being taken care of by the maternal uncle. Paragraphs 16 and 19 of the writ petition read thus:
16. That it is stated that family pension paid to the petitioner will not be paid to the petitioner after attaining the age of 25 years i.e. 1.2.2007 as such petitioner would be hand to mouth and shall not be in a position to maintain himself and his younger brother.
19. That the petitioner''s family were solely dependent on the salary earned by late petitioner''s father and petitioner''s father was having no other property or any income from any movable property and similar is a position of the uncle of the petitioner who has been maintaining the petitioner and since family pension received by the petitioner is very meager and on Rs.2200/-, petitioner or his younger brother son cannot continued his studies and maintained themselves as such condition of the petitioner''s family is very pitiable and petitioner was forced to left his studies but respondents have not considered the petitioner pitiable condition due to which petitioner and his younger brother''s carrier is at stake.
13. Learned counsel for the respondents submits that the appellant cannot claim compassionate appointment after a lapse of more than five years since the date of death of the deceased (father of the appellant) as provided under rule 5 para 2(3) of the 1974 Rules which has been amended vide G.O.No. 6/12/73/Ka-2/93 dated 13.10.1993. It is stated that neither the mother of the appellant nor any member of his family including the appellant had filed any application within five years since the date of death of the deceased, the father of the appellant.
14. He also submits that the appellant cannot get appointment in government services due to poverty and other reasons if the appellant is given compassionate appointment after lapse of more than five years since the date of the death of his father the same would create severe difficulty to the State respondents as 5% of vacancy in the relevant year only can be filled up by appointment on compassionate ground; that the Director, Panchayati Raj Uttar Pradesh, Luckow had already decided the representation dated 11.6.2002 made by the appellant vide order dated 18.9.2002 after considering his comment dated 19.8.2002 submitted by the then District Panchayati Raj Officer and the entire aspects of the case. There is no illegality or irregularity in the impugned judgment and order dated 6.11.2007 passed by the learned Single Judge and the present special appeal is liable to be dismissed with costs.
15. It is stated that from the record it is apparent that the petitioner''s father late Ram Kishore Sharma was working as Village Panchayat Officer and died in harness on 2.8.1989; that petitioner''s mother Smt. Satyawati Devi was offered benefit of 1974 Rules by the respondents but she by her letter dated 9.3.1992 informed that due to mental stress she would not like to serve the department and that the widow of the deceased employee also informed the authorities on 30.8.1989 that her two sons aged about five years and two years respectively and a daughter aged about 12 years were minor and, therefore, none of them were eligible for compassionate appointment at that time. She also sent a letter dated 9.3.1992 requesting the authorities to keep a post vacant till one of her sons becomes major to get appointment. Further the petitioner''s application dated 28th February 2001 which was received in the concerned office on 11th April 2001 was considered and by order dated 9th May 2001 it was rejected in view of Rule 5 of 1974 Rules on the ground that the representation has rightly been rejected as belated as such the petitioner cannot be considered for compassionate appointment.
16. The mother of the petitioner also subsequently died on 19.3.1995. She was getting family pension in her lifetime. After her death, it was paid to the unmarried daughter, i.e. sister of the petitioner and after her marriage, the family pension was sanctioned to the minor sons through their legal guardian Sri Rajveer Sharma. The petitioner whose date of birth is 24.1.1983 passed his High School in 1997 and Intermediate in 2000 and has graduated in 2004 the appellant submitted an application on 28.2.2001 before the District Panchayat Raj Officer, Aligarh, claiming compassionate appointment under 1974 Rules due to death of his father on 2.8.1989 stating that as now he has attained age of majority, he should be considered for the said appointment. He submitted a reminder letter dated 4.8.2001 and thereafter approached this Court in writ petition No. 18812 of 2002 having received no response from the respondents.
17. The aforesaid writ petition was finally disposed of vide judgment dated 6.5.2002, permitting the petitioner to make a fresh representation before the Director, Panchayat Raj, U.P. Government who was further directed to decide the same within a period of three months. Pursuant to the said order, the petitioner submitted his representation dated 11.6.2002 to the Director, Panchayat Raj, Lucknow who rejected the same by order dated 18.9.2002 impugned in this writ petition. In order to complete the facts, Sri Singh, learned counsel for the petitioner has informed that the petitioner had obtained his graduation degree in Commerce from Agra University in 2004.
18. The contention of learned counsel for the respondents is that his claim after the death of father, the petitioner''s mother Smt. Satyawati Devi submitted an application dated 30th August 1989 requesting to provide compassionate appointment to one Sri Kishan Lal who was younger brother of her deceased husband. The claim could not be accepted since the brother of the deceased employee was not entitled for compassionate appointment under 1974 Rules.
19. In rebuttal it is submitted by the petitioner that it is not disputed that the claim of the petitioner''s uncle for compassionate appointment was rejected by the respondents but it is said that thereafter his mother informed the respondents that after attaining majority one of her son may be provided compassionate appointment. It is stated that the petitioner and his family members are not getting any help from his uncle who is residing separately. It is also stated that in a number of cases, the State Government has made compassionate appointment after a long time relaxing five years requirement under 1974 Rules and, therefore, adherence to the said time schedule in the case of the petitioner is apparently arbitrary and discriminatory.
20. The contention of learned counsel for the petitioner appellant is that proviso to Rule 5 of 1974 Rules as amended vide notification dated 13.10.1993 by (Third Amendment) Rules, 1993, it was open to the State Government to relax limitation of five years for making appointment under 1974 Rules in appropriate cases but in the case of the petitioner, the said discretion has not been exercised as such the impugned order is liable to be set aside.
21. The point which requires consideration in this case is as to whether a minor dependent upon his father can be considered for appointment as compassionate grounds or after attaining majority can claim compassionate appointment and whether the authorities must relax the normal recruitment procedure in his favour though other eligible persons in the family of the deceased ( mother of the petitioner in this case ) did not accept the offer. Whether the offer of appointment in such a situation is a must even though the family has survived well for such a long time.
22. The purpose and objective of compassionate appointment is to provide immediate succour to the bereaved family whose sole bread earner has died in harness. It is not a source of recruitment. It only enables the family to tide over the sudden situation crisis and not to give a member of such family a post much less a post held by the deceased. It is not a kind of right of succession in the service where the employee has died in harness. The compassionate appointment has always been considered to be an exception to the normal mode of recruitment to be exercised only in deserving cases where the family of the deceased is left in cold penury on death of bread earner. The Rules have been made for the family of the deceased employee in consideration of services rendered by him and legitimate expectations, change in status and affairs of the family endangered by the erstwhile employment which are suddenly upturned. It cannot be allowed as a matter of course. There is no question of reserving a vacancy for the Dependents of deceased employee so as to provide them as and when they claim the same after acquiring requisite qualification, age etc. If compassionate appointment is allowed after reasonably long time, it would defeat the very object of assisting the family of deceased employee to tide over the sudden crisis resulting due to the death of bread earner, leaving his/her family in penury and without any means of livelihood. The matter has been considered by the Apex Court as well as this Court time and again and it would be useful to have a bird''s eye view on some of such authorities of Apex Court.
23. If the family has sufficient means to survive for years together and can take care of the minors who have turned into major after undergoing educational qualification etc. that itself would be evident to show that now the family is not in financial crises as it could have at the time of sudden demise of the deceased necessitating compassionate appointment at a late stage i.e. after several years.
24. In
We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought ''compassion'', the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the setback. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say ''goodbye'' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution of India.
25. Admittedly, the petitioner''s father died on 2.8.1989 when the old Rule 5 was in operation. At the relevant time application for compassionate appointment was to be submitted within a reasonable period of time. Therefore, there was no provision for relaxation of period of limitation by the State Government. On the contrary, a perusal of the then existing Rule 5 makes it clear that it stresses upon to offer employment on compassionate ground to the deserving persons of the family without any delay to enable it to survive. Meaning thereby that the application ought to have been submitted by the eligible dependent of the deceased employee without any undue delay and with utmost expediency. Any delayed application was liable to be dealt with as if the family has sufficient means to survive and, therefore, would make him disentitled for compassionate appointment. The amendment made by notification in 1993 is prospective and cannot help the petitioner to take any advantage of the new Rule since the cause of action in his case arose in 1989 when a different provision was in existence. Moreover, the discretion for condoning the delay is conferred by the proviso under Rule 5 as it stood after the amendment, gives a discretion to the State Government and that too is preceded by a condition for consideration of appointment on compassionate grounds in special cases i.e. where undue hardship has caused to the family of the deceased which is living in indigent circumstances and it is expedient and where it is in the deserving case it would be in the interest of justice that the provision pertaining to limitation of five years period needs to be relaxed and in other cases itt does not give any right to a person to claim relaxation thereafter. In the facts and circumstances of the case, in our considered view, Rule 5 as brought on the statute book by notification dated 13.10.1993 cannot help the petitioner for maintaining his application for compassionate appointment after more than 12 years.
26. Paragraphs 16 and 19 aforesaid do not give an impression that the family of the deceased was in immediate need of financial assistance as the petitioner has averred therein that he would be hand to mouth after his attaining 25 years of age. The argument that the petitioner is living separately with his uncle is also belied by paragraph 19 of the writ petition and even if he is living along with his uncle, it cannot be said that the family is living in indigent circumstances for the reasons given herein above in this judgment.
27. Admittedly, the mother of the appellant had requested the authorities to provide compassionate appointment to the brother of the deceased which was declined by the authorities and in that circumstances, she prayed for reservation of a post for one of her sons on compassionate ground. It is also an admitted fact that the family claims to be living separately from their uncle. Moreover, it has survived more than 22 years after the death of the deceased. The children have got education as the court has been informed that the appellant has graduated in 2004. What is his present status is not known to the counsel for the appellant i.e. as to whether he is serving any where or not and how is he maintain his family too.
28. The aforesaid admitted facts clearly establish that the family was not in indigent circumstances as the widow of the deceased has refused compassionate appointment for herself and instead desires appointment to be given to the brother of the deceased for she was compelled to do so by the circumstances as her children were minors at that time. She could have accepted the appointment if the family was in dire financial crisis. Even though the compassionate appointment was not accepted by the mother of the applicant and she has been able to raise her children and to give good education. It may also be noted that the applicant did not submit any application for condonation of delay. The power to condone delay vests in the State Government.
29. There is also no provisions of keeping vacancy reserved for the minors of dependents of government servants who died in harness. The 51% appointments under compassionate appointments is to be made in the existing vacancies for minors in each year. If reservation of vacancies for minors in such manner is permitted, many a deserving dependents of government servants who have died in harness and living in indigent circumstances would be deprived of the benefit of dependents U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. The Rule which is a beneficial piece of legislation would loose its beneficial part and turn into an unworkable Rule.
30. For all the reasons stated above, the respondents cannot be directed to give compassionate appointment to the appellant after the death of deceased employee on 2.8.89 and on attaining the majority on 28.2.2001 i.e. more than 22 years.
31. The writ petition is accordingly, dismissed. No order as to costs.
