# Akhilesh Kumar v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1291
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-26
- **Case number:** Civil Misc. Writ Petition No. 27946 of 2013
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-v-state-of-u-p-ors-43124
- **Pages:** 10

## Headnote

Rules 1974-Rule-2 (c)(v)-word "Family"
whether of includes brother-after death
of unmarried brother where father alive
but living separately with second wife
after death of mother of petitioner-held-
'Yes' in view of full Bench decision of
Sheo Kumar Dubey.
Held: Para-14
Therefore, in my opinion the "family" of
late Manoj Kumar is to be seen for the
purpose of Dying in Harness Rule, 1974
and not that of Sri Chhote Lal, father of the
petitioner who got remarried as back as in
the year 1998 and was living with Radhika
Devi and three daughters born out of
second marriage and was not maintaining
the petitioner and his brothers including
deceased Manoj Kumar. As such for all
purposes under the provisions of Dying in
Harness Rule 1974 his family became
different family as contemplated in the
aforesaid
Rules
1974
and
to
hold
otherwise would defeat the purpose of the
said Rules.
(B)U.P. Recruitment of dependents of
Government Servant (Dying in Harness)
Rules
1974-Rule-5-Compassionate
appointment-petitioner being brother of
unmarried
deceased
employee-fully
dependent-having no source of incomeapplying golden Rule of interpretationentitled for compassionate appointmenteven the father being working ------------
still alive-but living separately with second
wife and her children-order quashed
consequential direction given.
Held: Para-20
In the present as already held that the
petitioner has included in the family of
late Manoj Kumar as defined under Rule
2 (c) (iv) of the Dying in Harness Rule
1974, as such the petitioner who is
brother of the deceased and is not in
service is entitled for appointment on
compassionate
ground
provided
he
maintains other family members of the
deceased namely his younger brother
Amit Kumar, who is also living with him
and was also dependent of late Manoj
Kumar.
Admittedly,
deceased
Manoj
Kumar was unmarried as such the
question of spouse being being in service
does not arise. It is also undisputed fact
that the petitioner Akhilesh Kumar is not
in service of Central Govt. or State Govt.
or in any Corporation as mentioned in
Rule 5 of the Act.
Case Law discussed:
2014 (123) RD 504 (FB);2014 (2) (ADJ) 312
(FB).

## Text

3 All]. Akhilesh Kumar Vs. State of U.P. & Ors.
1291
pursuance of the present judgment, shall
be in addition to compensation claimed by
the petitioner in suit before appropriate
court, authority or forum.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2014
BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
Civil Misc. Writ Petition No. 27946 of 2013
Akhilesh Kumar
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare
Counsel for the Respondents:
C.S.C., Sri Q.H. Siddiqui
U.P. Recruitments of Dependents of
Government Servant (Dying in Harness)
Rules 1974-Rule-2 (c)(v)-word "Family"
whether of includes brother-after death
of unmarried brother where father alive
but living separately with second wife
after death of mother of petitioner-held-
'Yes' in view of full Bench decision of
Sheo Kumar Dubey.
Held: Para-14
Therefore, in my opinion the "family" of
late Manoj Kumar is to be seen for the
purpose of Dying in Harness Rule, 1974
and not that of Sri Chhote Lal, father of the
petitioner who got remarried as back as in
the year 1998 and was living with Radhika
Devi and three daughters born out of
second marriage and was not maintaining
the petitioner and his brothers including
deceased Manoj Kumar. As such for all
purposes under the provisions of Dying in
Harness Rule 1974 his family became
different family as contemplated in the
aforesaid
Rules
1974
and
to
hold
otherwise would defeat the purpose of the
said Rules.
(B)U.P. Recruitment of dependents of
Government Servant (Dying in Harness)
Rules
1974-Rule-5-Compassionate
appointment-petitioner being brother of
unmarried
deceased
employee-fully
dependent-having no source of incomeapplying golden Rule of interpretationentitled for compassionate appointmenteven the father being working ------------
still alive-but living separately with second
wife and her children-order quashed
consequential direction given.
Held: Para-20
In the present as already held that the
petitioner has included in the family of
late Manoj Kumar as defined under Rule
2 (c) (iv) of the Dying in Harness Rule
1974, as such the petitioner who is
brother of the deceased and is not in
service is entitled for appointment on
compassionate
ground
provided
he
maintains other family members of the
deceased namely his younger brother
Amit Kumar, who is also living with him
and was also dependent of late Manoj
Kumar.
Admittedly,
deceased
Manoj
Kumar was unmarried as such the
question of spouse being being in service
does not arise. It is also undisputed fact
that the petitioner Akhilesh Kumar is not
in service of Central Govt. or State Govt.
or in any Corporation as mentioned in
Rule 5 of the Act.
Case Law discussed:
2014 (123) RD 504 (FB);2014 (2) (ADJ) 312
(FB).
(Delivered by Hon'ble Vivek Kumar Birla, J.)
1. Heard Sri Siddharth Khare,
learned counsel for the petitioner and
learned Standing Counsel appearing for
the respondents.
2. Facts of the case are that late
Manoj Kumar, the brother of the
petitioner,
was
working
as
Junior
Engineer (Civil) in Jal Nigam, who
1292
 INDIAN LAW REPORTS ALLAHABAD SERIES
expired on 13.1.2010, while he was
posted in Jal Nigam Corporation. It is
alleged that after the death of the mother
of the petitioner Smt. Prabhawati Devi,
the father of the petitioner married again
with one Radhika in the year 1998 and
started living separately from late Manoj
Kumar
(brother
of
the
petitioner),
Akhilesh Kumar (petitioner) and his
younger brother Amit Kumar. It para 18
and 19 of the petition it has been
categorically stated that from his second
wife the father of the petitioner Chhote
Lal also has three daughters aged about 9
years, 13 years and 14 years and he is
maintaining his second wife and three
daughters only. Since the petitioner and
his younger brother Amit Kumar were
financial dependent on their brother late
Manoj Kumar as such after his death an
application dated 5.5.2011 was filed by
the petitioner for seeking appointment on
compassionate ground, a copy whereof is
Annexure-1 to the petition. The papers
were
forwarded
by
the
Executive
Engineer, Division Office Pratapgarh to
the Superintendent Engineer at Allahabad,
which in turn, were further forwarded by
the Superintendent Engineer to the Chief
Engineer, Jal Nigam Lucknow. It is also
on record that a communication dated
11.7.2011 was issued by the Chief
Engineer Lucknow to the Executive
Engineer Allahabad to consider the case
of the petitioner as per the Dying In
Harness Amendment Rules 2001, a copy
whereof is Annexure-2 to the writ
petition. Further correspondence amongst
the respondent authorities has also been
placed on record, which shows that the
case
of
the
petitioner
was
being
considered for this purpose. The aforesaid
correspondent are Annexures 5, 6, 7 and
8, which demonstrate that a finding of fact
has come that petitioner and his younger
brother Amit Kumar, were dependent on
them deceased brother Manoj Kumar and
were living with him. It was also recorded
that the father of the petitioner is alive and
is working in Akashvani.
3. On the basis of the aforesaid
information,
the
application
of
the
petitioner,
seeking
compassionate
appointment, was rejected vide order
dated 1.12.2011, a copy whereof is
Annexure-9 to the petition. The petitioner
filed
a
representation
before
the
Managing Director, Jal Nigam, Lucknow,
challenging the aforesaid communication.
In the order dated 1.12.2011 two grounds
for rejecting the claim of the petitioner
were mentioned. First ground is that the
petitioner is son of Chhote Lal and as
such he is his family member and second
ground is that since Chhote Lal is alive
and is working in Akashvani, therefore,
he would be treated as dependent of his
father Chhote Lal and cannot be treated a
dependent of his brother Manoj Kumar
and it will also be deemed that the
financial condition of the family of
Chhote Lal is sound. It was further
observed that in case the petitioner is not
able to maintain himself, his father is
liable to maintain him and for this
purpose he may proceed against his father
and that under these circumstances
compassionate appointment cannot be
granted to him. Thereafter the petitioner
filed a petition being Writ Petition No.
3287
of
2013,
highlighting
the
communication dated 1.12.2011 regarding
the rejection of his claim and that the
matter on his further representation is not
being proceeded with by the competent
authorities. In the aforesaid writ petition a
direction was issued to the concerned
authority to finalise the proceedings
preferably within two months from the
3 All]. Akhilesh Kumar Vs. State of U.P. & Ors.
1293
date of the production of the certified
copy of the order before him, a copy of
the judgement and order dated 21.1.2013
passed in Writ Petition No. 3287 of 2013
is Annexure-12 to the writ petition.
4. Subsequently, the representation
of the petition was dismissed by the
Executive Engineer, Allahabad, vide his
order
dated
27.4.2013,
which
is
Annexure-13 to the petition. In this order
apart from the grounds which were earlier
mentioned in the order dated 1.12.2011
namely, that his father is alive and is
working in Akashvani, an additional
ground was added that his mother Smt.
Prabhawati Devi lives in Allahabad along
with her children whereas the mother of
the late Monoj Kumar was one Smt.
Radhika Devi and as such the petitioner
being the step brother of Manoj Kumar
cannot be treated his dependent and is not
entitled for compassionate appointment.
5. In so far as the petitioner
Akhilesh Kumar being stepbrother of
Manoj Kumar is concerned, Sri Siddharth
Khare submitted that his ground is neither
here nor there and is contrary to the
evidence on record. For this purpose he has
drawn the attention of this court to
Annexure-15 of the petition, which is a
High School Examination 2006 Certificate
of the petitioner Akhilesh Kumar where in
his mother is shown to be Prabhawati Devi.
He has thereafter placed the High School
Examination Certificate 2001 of Manoj
Kumar where again late Smt. Prabhawati
Devi has been shown as his mother. A
perusal thereof clearly shows that the
mother of the petitioner Akhilesh Kumar as
well as of late Manoj Kumar was same
namely, Prabhawati Devi.
6. Assertion with regard to the
aforesaid fact have been made in para 28
to 34 of the petition. In the counter
affidavit in para 19 the said fact has not
been denied by the respondents. It had
also not been denied that no opportunity
of hearing was accorded to the petition to
prove his case that the mother of both,
Akhilesh Kumar petition as well as late
Manoj Kumar was one and same namely
Smt. Prabhawati Devi. Therefore, in view
of the aforesaid record available before
this court, to which there is no specific
denial, there appears to be no hesitation in
holding that a new ground has been
inserted while rejecting the claim of the
petitioner which is contrary to the record
available. This fact is further fortified
from the inquiry report dated 30.9.2011,
which is on record as Annexure-8 to the
petition wherein a categorical finding of
fact has come that the father of the
petitioner
had
solemnized
second
marriage and is living separately. It was
also recorded that deceased and his
younger brother Amit Kumar were
dependent of their brother late Manoj
Kumar and was living separately with
him. It is needless to note that had Smt.
Prabhawati Devi, mother of the petitioner
and first wife of Chhote Lal being alive,
he could not have entered into second
marriage on 3.4.1998 as it is proved from
the marriage agreement dated 3.4.1998,
which is Annexure-14 to the writ petition.
For the purpose of the present case death
of Smt. Prabhawati Devi is not very
relevant once it is proved that the
petitioner was dependent on late Manoj
Kumar. Therefore, the controversy raised
regarding the petitioner being stepbrother
of late Manoj Kumar appears to be an
afterthought and has no legs to stand as
per the record available before this court.
1294
 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Now coming to the second issue that
as to whether the petitioner comes within the
definition of family member of late Manoj
Kumar within the meaning of the U.P.
Recruitment of Dependents of Government
Servant Dying in Harness Rule 1974 as
amended from time to time herein after
referred to as Dying in Harness Rules 1974.
Thereafter the issue would be as to whether
the petitioner is entitled for recruitment on
compassionate ground as per Rule 5 of the
Dying in Harness Rules 1974, in view of the
fact that his father is alive and is in
Government/Corporation service, For this
purpose it is necessary to note the relevant
un-amended and amended Dying in Harness
Rules relating to the present controversy.
8. First of all definition of family is to
be noted which has under gone various
amendments. Definition as given in Rule 2
(c) of "family" as provided originally in
Dying in Harness Rule 1974 is quoted
below :-
(c)
"family"
shall
include
the
following
relations of the deceased
Government servant:
(i) Wife or husband;
(ii) Sons;
(iii)
Unmarried
and
widowed
daughters;
9. Subsequently, an amendment was
made
in
the
definition
and
vide
Notification dated 12.10.2001, following
clause was added which is quoted here in
under :-
(iv) If the deceased was unmarried
Government servant, brother, unmarried
sister and widowed mother dependant on
the deceased Government servant.
10. Rule 5 which provides for a
recruitment for a member of family of
deceased originally quoted herein under :-
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
3 All]. Akhilesh Kumar Vs. State of U.P. & Ors.
1295
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.
11. Subsequently vide Notification
dated 12.10.2001 Sub Rule 3 and 4 were
added to Rule 5 which are quoted herein
under:-
3. Every appointment made under
sub-rule (1) shall be subject to the
condition that the person appointed under
sub-rule (1) shall maintain other members
of the family of deceased Government
servant, who were dependent on the
deceased
Government
servant
immediately before his death and are
unable to maintain themselves.
4. Where the person appointed under
sub-rule (1) neglects or refuses to
maintain a person to whom he is liable to
maintain under sub-rule (3), his services
may be terminated in accordance with the
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999, as
amended from time to time.
12. The aforesaid amendments in the
Dying in Harness Rules, 1974 would
clearly indicate that consciously, on one
hand, the inclusion of family members
has been increased in the definition of
"family" as given in Rule 2 (c) of the
aforesaid Rules and on the other hand, in
Rule 5 by adding sub-rule 3 and 4, a
condition has been imposed on such
family
member,
who
is
seeking
appointment on compassionate ground
that he would maintain other family
members. Not only this, it has also been
provided that in case he refuses to
maintain other members, his services may
be terminated. Thus, clearly the effort is
not only to increase the number of family
members, who may seek compassionate
appointment but such entitlement would
come with the liability to maintain other
persons. As such the intention of the
Legislature is to be seen in the light of the
aforesaid amendments.
13. Now in view of the aforesaid
provisions
and
the
amendments
consciously made therein the claim of the
petitioner is to be tested.
14. In so far as the facts of the case
regarding petitioner being a member of
the family is concerned, the record clearly
shows that the mother of the deceased and
the petitioner Smt. Prabhawati Devi died
in the year 1997 as nothing contrary exist
on record. Thereafter the father of the
petitioner Chhote Lal remarried on
3.4.1998 with one Radhika Devi and as
per inquiry conducted by the respondent
authorities he is undisputedly living
separately with three daughters born out
of the second marriage. A further finding
of fact was clearly recorded in the inquiry
conducted is that the petitioner along with
his younger brother Amit Kumar was
living separately along with the deceased
Manoj Kumar and were completely
financial dependent on him for his
education and living etc. Therefore, in my
opinion the "family" of late Manoj Kumar
is to be seen for the purpose of Dying in
Harness Rule, 1974 and not that of Sri
Chhote Lal, father of the petitioner who
got remarried as back as in the year 1998
and was living with Radhika Devi and
three daughters born out of second
marriage and was not maintaining the
petitioner and his brothers including
1296
 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased Manoj Kumar. As such for all
purposes under the provisions of Dying in
Harness Rule 1974 his family became
different family as contemplated in the
aforesaid Rules 1974 and to hold
otherwise would defeat the purpose of the
said Rules.
15. Now coming to the question of
petitioner falling in the family of late
Manoj Kumar is concerned, newly added
clause (iv) clearly provides that if the
deceased was unmarried government
servant brother dependent on the deceased
employee deceased government servant
would be included in the family, and
therefore, can claim the compassionate
appointment under Dying in Harness Rule
1974.
16. A reference may be made to a
judgement of this court in Indrapal Singh
Vs. State of U.P. and others 2014 (123)
RD 504 (FB) wherein Full Bench of this
court was considering the expression of
"family" and 'house-hold' under the U.P.
Scheduled
Commodities
Distribution
Ordinance, 2004 and Clause 2 (0) and the
Government Order dated 3.7.1990. For
the
purpose
of
arriving
at
right
conclusion, in para 29 of the aforesaid
judgement, it was observed that the
definition has to be interpreted and
understood in the context in which they
have been used. For this purpose para 30,
31, 32 and 34 are quoted here in under :-
30. In Francis Bennion's Statutory
Interpretation, purposive construction has
been described as under :
"A purposive construction of an
enactment is one which gives effect to the
legislative purpose by (a) following the
literal meaning of the enactment where
that meaning is in accordance with the
legislative purpose (in this Code called a
purposive-and-literal construction), or (b)
applying a strained meaning where the
literal meaning is not in accordance with
the legislative purpose (in the Code called
a purposive-and-strained construction)."
31.
In
'The
Interpretation
and
Application
of
Statutes'
by
Reed
Dickerson, the author at p.135 has
discussed the subject while dealing with
the importance of context of the statute in
the following terms:
"... The essence of the language is to
reflect, express, and perhaps even affect
the conceptual matrix of established ideas
and values that identifies the culture to
which it belongs. For this reason,
language has been called "conceptual map
of human experience".'
32. In Reserve Bank of India v.
Peerless General Finance and Investment
Co. Ltd. [(1987) 1 SCC 424] Apex Court
stated as follows:
"..............If a statute is looked at, in
the context of its enactment, with the
glasses of the statute-maker, provided by
such context, its scheme, the sections,
clauses, phrases and words may take
colour and appear different than when the
statute is looked at without the glasses
provided by the context. With these
glasses we must look at the Act as a
whole and discover what each section,
each clause, each phrase and each word is
meant and designed to say as to fit into
the scheme of the entire Act.............."
34. Apex Court in the case of
Chairman, Indore Vikas Pradhikaran vs.
M/s. Pure Industrial Cock & Chemicals
3 All]. Akhilesh Kumar Vs. State of U.P. & Ors.
1297
Ltd AIR 2007 SC 2458 has mentioned
that an act should be interpreted having
regard to its history and the meaning
given to a word cannot be read in a
different way than what was interpreted in
the earlier repealed section and the words
have to be incorporated in the context in
which they are used. Apex Court, once
again in the case of State of Gujarat Vs.
Justice R.A. Mehta, 2013 (1) scale 7, has
once again reiterated the same principle,
that every statute has, therefore, to be
construed in the context of a scheme as a
whole. Consideration of context, it is trite,
is to be given the meaning to legislative
intention according to the terms it has
been expressed.
17. The aforesaid observation of the
Full Bench leaves no room to doubt that
in the present case that the family of late
Manoj Kumar, who was undisputedly
unmarried on the date of his death, has to
be
considered
and
on
meaningful
consideration
the
present
petitioner
Akhilesh Kumar clearly falls within the
definition of family of late Manoj Kumar
as per Rule 2 (c) (iv).
18. Now next question that as to
whether in view of the fact that father of
the petitioner was alive and was in
Government/Corporation
service,
the
petitioner could not have been granted
compassionate appointment, is to be
considered. For this purpose a reference
may be made to certain observation of
this court made in Full Bench decision in
Sheo Kumar Dubey and others Vs. State
of U.P. and others 2014 (2) (ADJ) 312
(FB). Para 3,6 and 29 are quoted here in
under :-
3. Before we elucidate the principles
which emerge from the body of precedent
on the subject, it would, at the outset, be
necessary to emphasise certain basic
precepts and interpret the provisions of
the Rules as they stand. Appointments to
public offices have to comply with the
requirements of Article 14 and Article 16
of the Constitution. Article 16 provides
for equality of opportunity in matters of
public
employment.
Compassionate
appointment is in the nature of an
exception to the ordinary norm of
allowing equality of opportunity to every
eligible person to compete for public
employment. The reason for the exception
as envisaged in the Rules is that the
immediacy of the financial hardship that
is sustained by a bereaved family by the
death of its earning member is sought to
be alleviated in a situation in which the
government servant died while in service.
Rule 5 of the Rules applies where a
government servant has died in harness
after the commencement of the Rules.
6. The Rules have been framed by the
State Government in exercise of the powers
conferred by the proviso to Article 309 of the
Constitution. The Rules make it abundantly
clear that the purpose and object underlying
the provision for compassionate appointment
is not to reserve a post for a member of the
family of a deceased government servant who
has died while in service. The basic object and
purpose is to provide a means to alleviate the
financial distress of a family caused by the
death of its member who was in government
service. This is the underlying theme or thread
which cuts across almost every provision of
the Rules. Firstly, the spouse of the deceased
government servant must not already be
employed in the Central or State Governments
or their Corporations. If the spouse is so
employed, then obviously, there would be no
warrant to grant compassionate appointment
since the spouse would be expected to provide
1298
 INDIAN LAW REPORTS ALLAHABAD SERIES
to the members of the family a nucleus for
sustaining their livelihood. Secondly, the
applicant himself should not be employed
with the Central or State Governments or their
Corporations. Thirdly, an application for
appointment has to be made within five years
from the date of death of the government
servant. The rationale for imposing a limit of
five years beyond which an application cannot
be entertained is that the purpose of
compassionate appointment is to bridge the
immediacy of the loss of an earning member
and the financial distress that is sustained in
consequence. A lapse of time is regarded by
the Rules as leading to a dilution of the
immediacy of the requirement. The first
proviso to Rule 5, however, confers upon the
State Government a discretion to dispense
with or relax the requirement of submitting an
application in five years. This power is not
unguided and is not left to the arbitrary
discretion of the decision-making authority.
Every discretionary power in public law has to
be structured on objective principles. The first
proviso requires the Government to be
satisfied that the strict application of the norm
of five years for submitting an application
would
cause
undue
hardship.
The
dispensation or relaxation is in order to deal
with a case in a just and equitable manner.
Under the second proviso, the burden has
been cast on the applicant to furnish reasons
and produce a justification together with
evidence in the form of documents and proof
in support of the cause for the delay in making
an application within the stipulated period.
Finally, on this aspect of interpretation, it must
be emphasized that an applicant for
employment under the Rules has to disclose in
a full, true and candid manner, details of the
financial condition of the family as well as all
relevant details pertaining to the members of
the family of the deceased including their
names, age and status in regard to their
marriage, employment and income. All these
aspects have a bearing on the financial need of
the family which has to be assessed before a
decision is taken to grant compassionate
appointment. The discretionary power to relax
the time limit of five years is in the nature of
an exception. It is a power which is vested in
the State Government, a circumstance which
is indicative of the fact that the subordinate
legislation expects it to be exercised with
scrupulous care. Ordinarily, the time limit of
five years governs. The State Government
may relax the norm on a careful evaluation of
the circumstances mandated by the second
proviso. It is but a matter of first principle that
a discretionary power to relax the ordinary
requirement should not swallow the main or
substantive provision and render the basic
purpose and object nugatory. The Rules
indicate, in consequence, that an application
for compassionate appointment, which is in
relaxation of the normal recruitment Rules,
must be made within a period of five years of
the date of death of the government servant.
But the State Government is conferred with a
discretionary power to relax the requirement
of five years in order to alleviate a situation of
undue hardship so as to deal with a case in a
just and equitable manner. The satisfaction of
the State Government before it exercises the
power of relaxation is not a subjective
satisfaction but must be based on objective
considerations founded on the disclosures
made by the applicant for compassionate
appointment. Those disclosures, in writing,
must necessarily have a bearing on the reasons
for the delay and on whether undue hardship
within the meaning of the first proviso to Rule
5 of the Rules would be caused by the
application of the time limit of five years. The
expression 'undue hardship' has not been
defined in the Rules. Undue hardship would
necessarily postulate a consideration of
relevant facts and circumstances including the
income of the family, its financial condition
and the extent of dependency.
3 All]. Akhilesh Kumar Vs. State of U.P. & Ors.
1299
29. We now proceed to formulate the
principles
which
must
govern
compassionate appointment in pursuance
of Dying in Harness Rules:
(i) A provision for compassionate
appointment is an exception to the
principle that there must be an equality of
opportunity
in
matters
of
public
employment.
The
exception
to
be
constitutionally valid has to be carefully
structured and implemented in order to
confine compassionate appointment to
only those situations which subserve the
basic object and purpose which is sought
to be achieved;
(ii) There is no general or vested
right
to
compassionate
appointment.
Compassionate
appointment
can
be
claimed only where a scheme or rules
provide for such appointment. Where
such
a
provision
is
made
in
an
administrative scheme or statutory rules,
compassionate appointment must fall
strictly within the scheme or, as the case
may be, the rules;
(iii) The object and purpose of
providing compassionate appointment is
to enable the dependent members of the
family of a deceased employee to tide
over the immediate financial crisis caused
by the death of the bread-earner;
(iv) In determining as to whether the
family is in financial crisis, all relevant
aspects must be borne in mind including
the income of the family; its liabilities, the
terminal benefits received by the family;
the age, dependency and marital status of
its members, together with the income
from any other sources of employment;
(v) Where a long lapse of time has
occurred since the date of death of the
deceased employee, the sense of immediacy
for seeking compassionate appointment
would cease to exist and this would be a
relevant circumstance which must weigh
with the authorities in determining as to
whether
a
case
for
the
grant
of
compassionate appointment has been made
out;
(vi) Rule 5 mandates that ordinarily,
an
application
for
compassionate
appointment must be made within five
years of the date of death of the deceased
employee. The power conferred by the
first proviso is a discretion to relax the
period in a case of undue hardship and for
dealing with the case in a just and
equitable manner;
(vii) The burden lies on the applicant,
where there is a delay in making an
application within the period of five years to
establish a case on the basis of reasons and
a justification supported by documentary
and other evidence. It is for the State
Government after considering all the facts
to take an appropriate decision. The power
to relax is in the nature of an exception and
is conditioned by the existence of objective
considerations to the satisfaction of the
government;
(viii)
Provisions for the grant of
compassionate appointment do not constitute
a reservation of a post in favour of a member
of the family of the deceased employee.
Hence, there is no general right which can be
asserted to the effect that a member of the
family who was a minor at the time of death
would be entitled to claim compassionate
appointment upon attaining majority. Where
the rules provide for a period of time within
which an application has to be made, the
1300
 INDIAN LAW REPORTS ALLAHABAD SERIES
operation of the rule is not suspended during
the minority of a member of the family.
19. There is no doubt that
immediacy of financial hardship is to be
considered and the claim of the applicant
is to be considered within the parameter
of Rule 5 of Rule Dying in Harness Rule
1974 as amended from time to time.
20. In the present as already held that
the petitioner has included in the family of
late Manoj Kumar as defined under Rule 2
(c) (iv) of the Dying in Harness Rule 1974,
as such the petitioner who is brother of the
deceased and is not in service is entitled for
appointment
on
compassionate
ground
provided he maintains other family members
of the deceased namely his younger brother
Amit Kumar, who is also living with him
and was also dependent of late Manoj
Kumar. Admittedly, deceased Manoj Kumar
was unmarried as such the question of
spouse being being in service does not arise.
It is also undisputed fact that the petitioner
Akhilesh Kumar is not in service of Central
Govt. or State Govt. or in any Corporation as
mentioned in Rule 5 of the Act.
21.
As laid down in Full Bench
decision in the case of Sheo Kumar Dubey
(supra) para 29 (ii) (iii) (iv) suffice to say that
once the father had left all the three brothers
namely
late
Manoj
Kumar,
petitioner
Akhilesh Kumar and younger brother Amit
Kumar, the purpose and scheme of Dying in
Harness Rule 1974 would be served by
providing financial assistance to the petitioner
by appointing him on compassionate ground
who had filed his application well within time
on 5.5.2011 whereas Manoj Kumar has
expired on 13.1.2010 after completion of 18
years of his age. There is no evidence on
record that the petitioner had any source of
income to maintain himself and his younger
brother Amit Kumar, who is now his
dependent. Therefore, applying the golden
Rule of interpretation which says that every
statute has to be construed in the context of a
scheme as a whole and is to be given the
meaning of the legislative intention according
to the terms it has been expressed. Therefore,
in view of the above discussion the impugned
order dated 27.4.2013 is not sustainable and is
liable to be quashed.
22.
Consequently, the order dated
27.4.2013
passed
by
Superintendent
Engineer, U.P. Jal Nigam, Allahabad is
hereby quashed. The respondent authorities
are, accordingly, directed to consider the
claim of the petitioner for appointment of on
compassionate
ground
in
Jal
Nigam
department
and
accordance
with
the
educational qualifications and pass suitable
order afresh, in the light of the above noted
discussion, within a period of three months
from the date of the production of the
certified copy of this order.
23. The writ petition is, accordingly,
allowed with the aforesaid observations.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2014
BEFORE
THE HON'BLE MRS. RANJANA PANDYA, J.
Criminal Misc. Application No. 40543 of 2014
(U/s 482 Cr.P.C.)
Dr. Malay Sharma
...Applicant
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicant:
Sri Aditya Prasad
Counsel for the Respondents:
A.G.A., Sri Swetashwa Agarwal