Santosh Kumar Dubey vs State Of U.P. &Ors

Santosh Kumar Dubey .. Appellant(s)

Versus

State of U.P. & Ors. .. Respondent(s)

JUDGMENT

Dr. MUKUNDAKAM SHARMA,J.

This appeal is directed against the judgment passed by the Division Bench of

the Allahabad High Court whereby the Special Appeal filed by the appellant was

dismissed. The said appeal was filed against the judgment and order passed by the

Learned Single Judge of the High Court on 8th July, 2002 who dismissed the writ

petition of the appellant on the ground that no case for issuance of any writ was made

out.

The writ petition was filed by the appellant on the ground that his father

who was working as Constable was untraceable and that his whereabouts were not

known. Another writ petition was filed by the mother of the appellant in which the

Court observed that since whereabouts of the father of the appellant are not known

for last seven years therefore the concept of deemed death of the father of

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the appellant could be invoked to the case in hand. Accordingly, there was a

direction of the Court directing for payment of service benefits of the father of the

appellant to his mother. It was also contended in the writ petition filed by the

appellant that having received the said benefit, now a right has accrued to the

appellant to seek for a compassionate appointment in the light of the rules applicable.

The afore-mentioned writ petition was contested by the respondent

contending inter alia that the father of the appellant was dismissed from service for

unauthorised absence and, therefore, in a case like that, the appellant was not entitled

to claim the benefit of compassionate appointment. The writ petition was also

opposed by the respondent on the ground that the rules as applicable did not permit

any compassionate appointment in favour of a person like the appellant and,

therefore, no such benefit could be given in favour of the appellant.

The writ petition thereafter was taken up for

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arguments by the learned Single Judge who considering the facts and circumstances

of the case dismissed the writ petition holding that no case for such appointment was

made out. Being aggrieved, the appellant filed a Second Appeal before the Division Bench of the Allahabad High Court. The said Special Appeal was taken up for

consideration and by impugned judgment and order dated 28th August, 2002, the

Division Bench dismissed the appeal holding that there was no scope to interfere with

the order of the Learned Single Judge. Still being aggrieved by the said order present

appeal is filed in which leave was granted.

We have heard learned counsel appearing for the appellant as also learned

counsel for the respondents and with their assistance have also perused the records.

Counsel for the appellant has submitted before us that by virtue of the

orders of the Court, the mother of the appellant got the service benefits sometime in

the year 1999 and, therefore, the appellant was justified in asking for a

compassionate appointment and it cannot be said to be belated.

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In order to appreciate the aforesaid contentions of the counsel appearing for

the appellant, we have perused the rules called the "U.P. Recruitment of Dependents

of Government Servants Dying in harness Rules, 1974". In our considered opinion,

Rule 5 has relevance on the facts of the present case and, therefore, we extract the

said provision hereinafter :

"5. Recruitment of a member of the family of the deceased.- 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 of 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:

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:5: Provided that where the State Government is satisfied that the times limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense such 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."

A bare perusal of the aforesaid rule would make it crystal clear that there is

a time limit prescribed according to which a deserving candidate has to make an

application for appointment within five years from the date of death of the

government servant. Admittedly, the father of the appellant was untraceable from 1981. Without entering into and deciding the issue as to whether employment on

compassionate ground could be asked for in a case of deemed death under Section

108 of the Evidence Act, even if we assume for the sake of argument that it can be so

demanded and asked for, such a right should and could have been exercised in the

year 1988 and computing the period of five years therefrom the period of limitation

for making an application for employment in the case of the appellant

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expired in the year, 1993. The very concept of giving a compassionate appointment is

to tide over the financial difficulties that is faced by the family of the deceased due to

the death of the earning member of the family. There is immediate loss of earning for

which the family suffers financial hardship. The benefit is given so that the family

can tide over such financial constraints. The request for appointment on

compassionate grounds should be reasonable and proximate to the time of the death

of the bread earner of the family, inasmuch as the very purpose of giving such benefit

is to make financial help available to the family to overcome sudden economic crisis

occurring in the family of the deceased who has died in harness. But this, however,

cannot be another source of recruitment. This also cannot be treated as a bonanza

and also as a right to get an appointment in Government service. In the present case, the father of the appellant became untraceable in the

year 1981 and for about 18 years, the family could survive and successfully faced and

overcame

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the financial difficulties that they faced on missing of the earning member. That

being the position, in our considered opinion, this is not a fit case for exercise of our

jurisdiction. This is also not a case where any direction could be issued for giving the

appellant a compassionate appointment as the prevalent rules governing the subject

do not permit us for issuing any such directions. The appeal, therefore, has no merit

and is dismissed.

......................J. [ Dr.MUKUNDAKAM SHARMA ]

......................J. [ Dr. B.S. CHAUHAN ]

NEW DELHI, MAY 18, 2009.