# Amar Parasher / v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 1065
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Special Appeal No. 43 of 2019
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-parasher-v-state-of-u-p-ors-47667
- **Pages:** 9

## Headnote

Law
-
Compassionate
Appointment
-
U.P.
Recruitment
of
Dependents of Government Servants Dying
in Harness Rules, 1974: Rule 5 - While the
right to compassionate appointment is not a
right in the sense a right is understood in
law
stricto
sensu,
it
is
certainly
an
entitlement
which
a
member
of
the
deceased's family eligible, can invoke for
consideration in order to save the family
from debilitating financial distress caused
by the deceased's sudden exit from the
mortal world. The State employer, where there
is a regime for compassionate appointment
introduced by Rules etc., cannot toss a claim by
the deceased's dependent family member by
application of a rigorous Rule of Limitation in a
manner that defeats the very object for which the
regime of compassionate appointment has been
introduced. (Para 17)

The 1974 Rules postulate by presumption that in
the course of 5 years, the deceased's family, by
whatever means, would tide over the financial
crisis caused by the breadwinner's death. The first
proviso to Rule 5(1) of the 1974 Rules
nevertheless acknowledges the possibility that in
the facts of a particular case, the crisis may
continue and unless the rule of limitation is
dispensed with or relaxed to consider the case of a
member
of
the
deceased's
family
for
compassionate appointment, 'undue hardship' may
be caused. To blindfoldedly infer that the family
have tided over the financial crisis within a period
of 5 years, acting on the statutory presumption, is
to defeat the wisdom that the proviso carries.
(Para 17, 23)

B. Burden no doubt lies upon the applicant
for compassionate appointment, where
there is a delay in making the claim,
taking it beyond the period of 5 years, to
make out a case for relaxation by coming
up with a justification for the same. At the
same time, it is the duty of the employer
to look into all relevant evidence, that is
on record, to find out whether the
financial distress, that is the direct result
of the deceased government servant's
untimely death, is still plaguing the family
in a given case. If the deceased government
servant's death has plunged the family into a
lasting financial distress from which they are not
able to emerge, there might be a case of undue
hardship that merits relaxation of the Rule of
Limitation. Mere count of the calendar, where
the claim is made after 5 years, may not be
decisive. It is no doubt relevant. (Para 18)

C. Utter disregard of the order of remand
passed by this Court dated August 20,
2016 - In the present case, the Secretary in
passing the impugned order has apparently
flouted the directions of this Court carried in the
judgment and order dated 20.08.2016, where
the report of the Circle Officer, Hariparwat, Agra
dated 22.07.2014 was referred to as indicative
of relevant facts existing to show that the family
were still facing financial crisis. The Secretary,
while passing the impugned order, ought to
have referred to the Circle Officer's report dated
22.07.2014 and in not doing so, it has acted
contrary to the command of this Court, carried
in the judgment and order dated 20.08.2016,
which has become final inter parties. The
learned Single Judge could not have remarked
that the Judge who dealt with the earlier writ
petition inter parties and passed the judgment
and
order
dated
20.08.2016,
did
not
independently deal with the decision of the Full
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Bench in Shiv Kumar Dubey's case (infra) after
noticing the principles laid down therein. The
earlier judgment inter parties was as much
binding on the learned Single Judge, who
passed the impugned order, as it is on the
parties, because the findings there are indeed
res judicata. It is not a case, where the earlier
decision was cited by way of precedent and
ignored as per incuriam. (Para 19)

If the Secretary had carefully looked into either
of the two reports dated 21.10.2016 or the
earlier one dated 22.07.2014, it was not difficult
to miss the fact that

## Text

10 All. Amar Parasher Vs. State of U.P. & Ors.
1065
----------
(2022) 10 ILRA 1065
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 43 of 2019

Amar Parasher ...Petitioner/Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Vishnu Shanker Gupta

Counsel for the Respondents:
C.S.C., Sri A.K. Ray, Addl. Chief Standing
Counsel

A.
Service
Law
-
Compassionate
Appointment
-
U.P.
Recruitment
of
Dependents of Government Servants Dying
in Harness Rules, 1974: Rule 5 - While the
right to compassionate appointment is not a
right in the sense a right is understood in
law
stricto
sensu,
it
is
certainly
an
entitlement
which
a
member
of
the
deceased's family eligible, can invoke for
consideration in order to save the family
from debilitating financial distress caused
by the deceased's sudden exit from the
mortal world. The State employer, where there
is a regime for compassionate appointment
introduced by Rules etc., cannot toss a claim by
the deceased's dependent family member by
application of a rigorous Rule of Limitation in a
manner that defeats the very object for which the
regime of compassionate appointment has been
introduced. (Para 17)

The 1974 Rules postulate by presumption that in
the course of 5 years, the deceased's family, by
whatever means, would tide over the financial
crisis caused by the breadwinner's death. The first
proviso to Rule 5(1) of the 1974 Rules
nevertheless acknowledges the possibility that in
the facts of a particular case, the crisis may
continue and unless the rule of limitation is
dispensed with or relaxed to consider the case of a
member
of
the
deceased's
family
for
compassionate appointment, 'undue hardship' may
be caused. To blindfoldedly infer that the family
have tided over the financial crisis within a period
of 5 years, acting on the statutory presumption, is
to defeat the wisdom that the proviso carries.
(Para 17, 23)

B. Burden no doubt lies upon the applicant
for compassionate appointment, where
there is a delay in making the claim,
taking it beyond the period of 5 years, to
make out a case for relaxation by coming
up with a justification for the same. At the
same time, it is the duty of the employer
to look into all relevant evidence, that is
on record, to find out whether the
financial distress, that is the direct result
of the deceased government servant's
untimely death, is still plaguing the family
in a given case. If the deceased government
servant's death has plunged the family into a
lasting financial distress from which they are not
able to emerge, there might be a case of undue
hardship that merits relaxation of the Rule of
Limitation. Mere count of the calendar, where
the claim is made after 5 years, may not be
decisive. It is no doubt relevant. (Para 18)

C. Utter disregard of the order of remand
passed by this Court dated August 20,
2016 - In the present case, the Secretary in
passing the impugned order has apparently
flouted the directions of this Court carried in the
judgment and order dated 20.08.2016, where
the report of the Circle Officer, Hariparwat, Agra
dated 22.07.2014 was referred to as indicative
of relevant facts existing to show that the family
were still facing financial crisis. The Secretary,
while passing the impugned order, ought to
have referred to the Circle Officer's report dated
22.07.2014 and in not doing so, it has acted
contrary to the command of this Court, carried
in the judgment and order dated 20.08.2016,
which has become final inter parties. The
learned Single Judge could not have remarked
that the Judge who dealt with the earlier writ
petition inter parties and passed the judgment
and
order
dated
20.08.2016,
did
not
independently deal with the decision of the Full
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Bench in Shiv Kumar Dubey's case (infra) after
noticing the principles laid down therein. The
earlier judgment inter parties was as much
binding on the learned Single Judge, who
passed the impugned order, as it is on the
parties, because the findings there are indeed
res judicata. It is not a case, where the earlier
decision was cited by way of precedent and
ignored as per incuriam. (Para 19)

If the Secretary had carefully looked into either
of the two reports dated 21.10.2016 or the
earlier one dated 22.07.2014, it was not difficult
to miss the fact that the writ petitioner in
making
his
claim
for
compassionate
appointment had to wait for two decisive
events, i.e., attaining the age of majority and
completing his education. It is not disputed that
for a compassionate appointment, it is not
the age of majority alone that entitles one
for
consideration.
The
necessary
educational qualification too has to be
acquired. (Para 20 to 22)

This Special Appeal, accordingly, succeeds and
is allowed. The impugned judgment and order
dated December 5, 2018 is hereby set aside and
reversed. The writ petition is allowed. The
impugned order dated December 7, 2016
passed by the Secretary, Department of Home
Affairs (Police), Anubhag-10, Government of
U.P., Lucknow is hereby quashed. A mandamus
is issued to respondent no. 1 to consider the
writ
petitioner's
claim
for
compassionate
appointment afresh in accordance with the
directions in this judgment. (Para 25)

Special appeal allowed. (E-4)

Precedent followed:

1. Shiv Kumar Dubey & ors. Vs St. of U.P. & ors.,
AIR 2015 All 47; (2014) ILR 1 All 266 (Para 13)

Special appeal against judgment dated
05.12.2018,
passed
by
Hon'ble
Mr.
Justice Yashwant Verma, J. in WP No.
751/2017.

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

ORDER

1. This is a petitioner's appeal arising
out of the judgment and order passed by the
learned Single Judge, dated December 5,
2018, dismissing Writ - A No. 751 of 2017.

2. The late Brijesh Parasher, the writ
petitioner Amar Parasher's father, was
employed with the Uttar Pradesh Radio
Police as a Head Operator and posted at the
Police Radio Head Quarters, Firozabad. He
died in harness on December 13, 2004. Not
only did the writ petitioner's father die in
harness,
but
it
appears
from
a
communication dated October 19, 2005,
addressed to the Station House Officers of
Police Station Etmadpur/ New Agra/ Bah
by the Senior Superintendent of Police,
Agra, that he died on duty. As a token of
acknowledgment to the fact that the writ
petitioner's father died on duty, his widow
and dependent, Smt. Meera Parasher were
called on the Police Commemoration Day
to accept for her husband a Martyrs'
Honour. There is on record an application
made by the writ petitioner's mother, Smt.
Meera Parasher and the deceased's widow,
indicating the personal profile of the family
members that the late Brijesh Parasher left
behind. The application shows that the
family
comprised
of
minor
children
numbering
two,
including
the
writ
petitioner, then aged 12 years and an aged
mother of the deceased, who was of 74
years. The widow was 35 years and in the
application, she indicated the need that the
family
had
for
a
compassionate
appointment to tide over the sudden
financial crisis into which the family had
plunged. Yet, she did not claim for herself
on the ground that the children were young
and pursuing their studies, which required
the
widow's
complete
attention
and
management. She requested that while she
10 All. Amar Parasher Vs. State of U.P. & Ors.
1067
considered herself disabled from seeking
compassionate appointment on the above
account,
she
was
willing
to
seek
appointment for her son/ daughter upon
either turning a major. It was also indicated
that the son or the daughter of the deceased
would seek compassionate appointment
upon attaining the age of majority and
completing the requisite education.

3. On the application dated September
29, 2005, the Superintendent of Police,
Firozabad passed an order dated October
15, 2005, saying that her son, the writ
petitioner was 12 years old and still shy by
6 years of the age of majority, when he
would be eligible for consideration under
the Dying-in-Harness Rules. It was said in
the order that once the writ petitioner turns
18, upon an application made for the
purpose, necessary action would be taken.
Upon the writ petitioner turning eighter
years,
an
application
seeking
compassionate appointment for him was
made by his mother, addressed to the
Additional Director General of Police/
Director (Telecom), U.P. Police Radio
Head Quarters, Lucknow, with copies to
other Officers of the Police, mentioned at
the foot of the application. The respondents
do
not
seem
to
acknowledge
this
application and discount it from their
record. Though the respondents say that
this application by the writ petitioner's
mother was not received, there is a
communication dated March 21, 2013,
addressed to the State Radio Officer
(Administration), U.P., Police Radio Head
Quarters,
Lucknow
from
the
Superintendent
of
Police,
Firozabad
forwarding the said application, as the writ
petitioner asserts. A copy of the memo
dated
March
21,
2013
from
the
Superintendent
of
Police,
Firozabad
addressed to the State Radio Officer,
Administration is on record of the writ
petition as Annexure No.6.

4. There is then a communication by
the State Radio Officer (Administration) to
the State Government dated March 19,
2014 recommending consideration of the
writ petitioner's case for compassionate
appointment, after granting relaxation of
the time period of 5 years from the death of
the concerned government servant, within
which an application for compassionate
appointment must normally be made under
Rule 5 of the Uttar Pradesh Recruitment of
Dependants of Government Servants Dying
in Harness Rules, 1974 (for short, ''1974
Rules'). The power is exercisable by the
State Government to dispense with or relax
the requirement of the time period of 5
years under the Proviso to Rule 5(1) of the
1974 Rules.

5. It appears that a report regarding the
circumstances of the writ petitioner's family,
particularly, the economic condition was
called for by the State Government. The
inquiry into the relevant circumstances was
entrusted to the Circle Officer, Hariparwat,
Agra vide an order dated July 4, 2014. In
compliance with the last mentioned order, the
Circle Officer conducted an inquiry and
submitted his report dated July 22, 2014 to
the Senior Superintendent of Police, Agra. A
copy of the said report is on record as
Annexure No.8 to the writ petition. The
report has evaluated in minute detail not only
the financial circumstances of the family that
the writ petitioner's father left behind, but the
impact that his untimely demise still had
upon the surviving members. Allusion to the
said report would be made during the course
of this judgment.

6. The Deputy Secretary to the
Government of U.P., before whom the writ
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's
claim
for
compassionate
appointment came up for consideration
after grant of relaxation in the stipulated
time period, rejected it by his order dated
March 3, 2015. The order noted the fact
that the family were in receipt of an
extraordinary pension of ₹10,346/-, and,
thereafter referred to various authorities of
this Court and the Supreme Court that say
that compassionate appointment is not a
source
of
employment.
The
report
submitted
by
the
Circle
Officer,
Hariparwat,
Agra
regarding
the
circumstances
and
status
on
various
relevant parameters, that would be germane
to determine if a case of ''undue hardship'
for relaxation in the period of 5 years under
the Proviso to Rule 5(1) of the 1974 Rules
was made out, did not find the slightest
consideration in the order dated March 3,
2015, rejecting the writ petitioner's claim.

7. The writ petitioner challenged the
said order by instituting Writ - A No.
58536 of 2015. This Court vide order dated
August 20, 2016, after noticing the facts of
the case and the law governing the
principles
on
which
a
claim
for
compassionate appointment under the 1974
Rules is to be considered, also took note of
all the details regarding the circumstances
of the deceased employee's family and
held:

"Considering
the
fact
and
circumstances of the present case, it is
found that the petitioner had applied soon
after attaining majority and certain material
was placed before respondent no.1 to make
out the case of undue hardship for grant of
relaxation under first proviso to Rule 5.
However, it appears that respondent no.1
has rejected the claim of the petitioner only
on two grounds that the wife of the
deceased did not apply for compassionate
appointment and second was of delay and it
is concluded that no case for relaxation
under first Proviso to Rule 5 is made out.
The hardship being faced by the family of
the deceased employee is reflected from the
enquiry report submitted by the Enquiry
Officer
namely
the
Circle
Officer,
Hariparvat Agra, as per the Government
Order dated 23.02.2014 and 17.07.2014. It
is indicated that the family is still facing
financial crisis. They are dependent only
upon the pension which is a meager amount
of Rs.10,346/-. There are three female
dependants of the deceased including his
old mother and the family has no other
source of income."

8. In view of the aforesaid findings in
the judgment August 20, 2016 passed inter
partes in Writ - A No. 58536 of 2015, this
Court quashed the Deputy Secretary's order
dated March 3, 2015 acting for the
Government and remitted the matter for reconsideration to the Government, in terms
of the following orders:

"All
these
attending
circumstances
have
not
been
found
reference in the order impugned at all. The
rejection order dated 03.03.2015 passed by
respondent no.1, therefore, cannot be
sustained and is hereby quashed. The
matter is remanded back to respondent no.1
to take a fresh decision on the merits of the
application giving due consideration to all
the attending circumstances and pass a
reasoned and speaking order keeping in
view the directions given by the Full Bench
of this Court in Shiv Kumar Dubey
(Supra) expeditiously preferably within a
period of three weeks from the date of
production of the certified copy of this
order.

With the above observations and
directions, the writ petition is allowed.
10 All. Amar Parasher Vs. State of U.P. & Ors.
1069

9. This is how the matter went back to
the State Government and the writ
petitioner moved the Government again
seeking re-consideration of his case for
compassionate appointment, after relaxing
the normal period of 5 years. The writ
petitioner for the purpose moved an
application dated September 6, 2016 along
with a copy of this Court's order dated
August 20, 2016 passed in the writ petition
last mentioned. The State Government
again appear to have called for a report in
the matter vide order dated September 22,
2016. In response to the said inquiry, the
Circle Officer, Hariparwat, Agra once
again inquired into the financial and other
circumstances of the deceased employee's
family, including the writ petitioner's. A
report dated October 21, 2016 was
submitted to the Competent Authority. The
contents of the report dated October 21,
2016 shall also be referred to later in this
judgment, together with those of the earlier
report.

10. The writ petitioner's case was
rejected
once
again
by
the
State
Government, taking note of this Court's
judgment and order dated August 20, 2016.
The Secretary to the State Government,
who dealt with the writ petitioner's claim,
remarked that the writ petitioner had laid
his claim for compassionate appointment 8
years after his father's death. He has made
it 3 years 2 months and 13 days beyond the
prescribed time limit of 5 years. It has also
been recorded by the Secretary that Amar
Parasher attained the age of majority on
October 9, 2010, but did not immediately
apply. He waited for a further period of 2
years 4 months and 13 days after attaining
the age of majority. It is remarked that the
aforesaid delay is entirely on the writ
petitioner's part. It is, therefore, explicit that
upon death of the deceased government
servant, no eligible member of his family
applied promptly or immediately upon
attaining majority. It could be done by
them, but they did not. The affected family
of the deceased waited for his son, the writ
petitioner, to turn a major, in consequence
whereof, the time period of 5 years,
prescribed under the 1974 Rules elapsed.

11. Doing a calendaring of these
events, the Secretary has drawn an
inference
that
the
members
of
the
deceased's family have tided over the
sudden financial crisis, which no longer
appears to afflict them. It has then been
remarked in the order impugned that under
the 1974 Rules, 5 years is the prescribed
period of time, within which an application
for compassionate appointment can be
entertained. The 1974 Rules envisage an
immediate
measure
to
bail
out
the
deceased's family from the sudden financial
crisis that have plunged into, upon the
breadwinner's sudden demise. It is not the
purpose of the 1974 Rules to guarantee a
right of recruitment that can be retained to
be availed at will and convenience in order
to secure employment. It has been opined
that considering the delay of 3 years 2
months and 13 days on the writ petitioner's
part
in
applying
for
compassionate
appointment,
no
case
for
granting
relaxation from the prescribed time limit of
5 years is made out, and consequently by
the order impugned dated December 7,
2016 passed by the Secretary, the writ
petitioner's claim has been rejected.

12. The writ petitioner challenged this
order before the learned Single Judge, who
took note of the fact that rejection of the
writ petitioner's claim for compassionate
appointment earlier, had been quashed by
this Court and the matter was remitted to
the Government to consider afresh bearing
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
in mind the guidance in the judgment. It
was noted by the learned Single Judge that
this Court on the earlier occasion had held
that the respondent has not correctly
appreciated the ambit of the Proviso to
Rule 5(1) while disposing of the writ
petitioner's claim. The learned Single Judge
has then gone on to remark about the
judgment of remand rendered by the
learned Judge in the earlier writ petition,
preferred by the writ petitioner, in the
following terms:

"Although, the learned Judge
noticed the principles enunciated by the
Full Bench of this Court in the case of Shiv
Kumar Dubey and others vs. State of U.P.
and others, 2014 (2) ADJ 312 (FB), the
Court notes that the following principles as
elucidated were not independently dealt
with in this decision."

 (emphasis by Court)

13. The learned Single Judge has then
referred to principles culled out under Para
(v) and (viii) of the decision of the Full
Bench in Shiv Kumar Kumar Dubey's
case (supra) to hold that the Secretary has
rightly applied the law to reject the writ
petitioner's claim. It has been remarked that
appointment under the 1974 Rules is an
exception to the principles of equality in
employment under the State, guaranteed
under
Articles
14
and
16
of
the
Constitution. It has also been observed that
that the Secretary while passing the
impugned order had rightly come to the
conclusion that no case for enlargement of
time envisaged under Rule 10 of the 1974
Rules is made out by the writ petitioner.
The
learned
Judge
has,
accordingly,
dismissed the writ petition.

14. Aggrieved, the present Special
Appeal has been filed.

15. The learned Counsel for the writ
petitioner has assailed the impugned
judgment saying that it runs in the teeth of
the earlier judgment and order dated
August 20, 2016 passed in Writ - A No.
58536 of 2015, which has attained finality
inter partes. It is submitted that the
impugned order has not at all considered
the writ petitioner's case by reference to
circumstances elucidated in the inquiry
report dated July 22, 2014, which this
Court had required them to do by the
judgment and order dated August 20, 2016
for the purpose of determining whether a
case of undue hardship, entitling the writ
petitioner to a relaxation of the limitation in
Rule 5 of the 1974 Rules, is made out.

16. The learned Standing Counsel has
supported the impugned order and says that
it accords with the law laid down by
consistent
authority,
elucidating
the
principles
governing
consideration
of
claims for compassionate appointment.

17. Upon hearing the learned Counsel
for parties, we are of opinion that there is
no cavil about the fact that a claim for
compassionate appointment cannot be
considered a matter of right to employment
under the State. It is not an additional
source of employment. At the same time,
the purpose of compassionate appointment
is to bail out the family of a deceased
government servant, who have plunged into
a deep financial distress, on account of the
breadwinner's sudden and untimely demise.
The object and purpose of a compassionate
appointment, therefore, survives so long as
the financial deprivation brought about by
the sudden death of the breadwinner lasts.
The 1974 Rules postulate by presumption
that in the course of 5 years, the deceased's
family, by whatever means, would tide
over the financial crisis caused by the
10 All. Amar Parasher Vs. State of U.P. & Ors.
1071
breadwinner's death. The first proviso to
Rule 5(1) of the 1974 Rules nevertheless
acknowledges the possibility that in the
facts of a particular case, the crisis may
continue and unless the rule of limitation is
dispensed with or relaxed to consider the
case of a member of the deceased's family
for compassionate appointment, 'undue
hardship' may be caused. The proviso
directs that if the State Government is
satisfied that undue hardship would be
caused in a particular case on account of
non-relaxation of the rule of limitation, it
may consider the case for compassionate
appointment, dealing with it in a just and
equitable manner. While the right to
compassionate appointment is not a right in
the sense a right is understood in law
stricto sensu, it is certainly an entitlement
which a member of the deceased's family
eligible, can invoke for consideration in
order to save the family from debilitating
financial distress caused by the deceased's
sudden exit from the mortal world. The
State employer, where there is a regime for
compassionate appointment introduced by
Rules etc., cannot toss a claim by the
deceased's dependent family member by
application of a rigorous Rule of Limitation
in a manner that defeats the very object for
which
the
regime
of
compassionate
appointment has been introduced.

18. The rules by which a claim for
compassionate
appointment,
including
relaxation in the period of limitation under
Rule 5 has to be considered, have been
exhaustively laid down by the Full Bench
decision in Shiv Kumar Dubey's (supra)
and the same need not be recapitulated.
Under the principles laid down in Shiv
Kumar Dubey's case, burden no doubt lies
upon the applicant for compassionate
appointment, where there is a delay in
making the claim, taking it beyond the
period of 5 years, to make out a case for
relaxation by coming up with a justification
for the same. At the same time, it is the
duty of the employer to look into all
relevant evidence, that is on record, to find
out whether the financial distress, that is
the
direct
result
of
the
deceased
government servant's untimely death, is
still plaguing the family in a given case. If
the deceased government servant's death
has plunged the family into a lasting
financial distress from which they are not
able to emerge, there might be a case of
undue hardship that merits relaxation of the
Rule of Limitation. Mere count of the
calendar, where the claim is made after 5
years, may not be decisive. It is no doubt
relevant.

19. The Secretary in passing the
impugned order has apparently flouted the
directions of this Court carried in the
judgment and order dated August 20, 2016,
where the report of the Circle Officer,
Hariparwat, Agra dated July 22, 2014 was
referred to as indicative of relevant facts
existing to show that the family were still
facing financial crisis. The Secretary, while
passing the impugned order, ought to have
referred to the Circle Officer's report dated
July 22, 2014 and in not doing so, it has
acted contrary to the command of this
Court, carried in the judgment and order
dated August 20, 2016, which has become
final inter partes. With utmost respect, we
must say that the learned Single Judge
could not have remarked that the Judge
who dealt with the earlier writ petition inter
partes and passed the judgment and order
dated August 20, 2016 in Writ - A No.
58536 of 2015, did not independently deal
with the decision of the Full Bench in Shiv
Kumar
Dubey's
case
(supra)
after
noticing the principles laid down therein.
The earlier judgment inter partes was as
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
much binding on the learned Single Judge,
who passed the impugned order, as it is on
the parties, because the findings there are
indeed res judicata. It is not a case, where
the earlier decision was cited by way of
precedent and ignored as per incuriam.

20. The inquiry report dated July 22,
2014 notes down the following salient
circumstances regarding the dependent
family members of the deceased:

(1) After the death of the
concerned employee, the family members
are surviving on the extraordinary pension
that they are receiving (a sum of ₹8,550/-)
at the relevant time;

(2)
The
deceased's
family
comprises his widow, his mother, son and
daughter;

(3)
The
members
of
the
deceased's family do not have any
agricultural land, on which they may
depend for sustenance;

(4) During the period of time
between the employee's death and the
claim, his children were completing their
education and the pension received was
their source of income;

(5) The writ petitioner made his
claim for compassionate appointment,
because at the time of his father's death, he
was aged a mere 10 years. The delay in
making the claim was caused by the fact
that the writ petitioner was awaiting
attaining
the
age
of
majority
and
completing his education;

(6)
The
members
of
the
deceased's family, apart from the pension
they receive, do not own a house of their
own.

In the concluding part of the
report dated 22.07.2014 submitted by the
Circle Officer, Hariparwat, it has been
again emphasized that upon completing his
education and turning a major, the writ
petitioner
applied
for
compassionate
appointment.

21. It is this report of the Circle
Officer, Hariparwat, Agra that this Court
by the earlier judgment and order dated
August 20, 2016 passed in Writ - A No.
58536 of 2015 had required consideration
by the Government while judging the writ
petitioner's claim for relaxation in the
prescribed time period for consideration of
his compassionate appointment claim. The
impugned order does not show the slightest
consideration of the report dated July 22,
2014, as required by this Court. Now, after
the order of remand was passed by this
Court, the subsequent report submitted by
the Circle Officer, Hariparwat reports in
identical terms on the continuing financial
distress
of
the
Parasher
family.
Surprisingly, this report was called for by
the State Government and yet while
passing the impugned order, the subsequent
report dated October 21, 2016 submitted by
the Circle Officer, Hariparwat has also not
been referred to in the least by the
Secretary, writing the order impugned. All
that the Secretary has said in the impugned
order is too harp on the numerical of delay
that
the
writ
petitioner's
claim
for
compassionate appointment is hit by.

22. This Court must remark that if the
delay of years and months by numerical
figure alone were the only factor to be
considered, there might have been no reason
for the first proviso to Rule 5(1) of the 1974
Rules being there, envisaging relaxation in
the period of time, prescribed by the 1974
Rules. It must also be remarked that if the
Secretary had carefully looked into either of
the two reports dated October 21, 2016 or the
earlier one dated July 22, 2014, it was not
difficult to miss the fact that the writ
10 All. The State of U.P. & Ors. Vs. Ankit Saxena & Anr.
1073
petitioner
in
making
his
claim
for
compassionate appointment had to wait for
two decisive events, to wit, attaining the age
of majority and completing his education. It
is not disputed that for a compassionate
appointment, it is not the age of majority
alone that entitles one for consideration. The
necessary educational qualification too have
been acquired. No doubt, the two inquiry
reports dated July 22, 2014 and October 21,
2016 do not indicate what educational
qualification the writ petitioner acquired and
on what date after which he applied, a little
sensitive handling of the claim by the
Secretary would have led him to find out
when the writ petitioner earned his essential
eligibility
educational
qualifications.
Perhaps, that would explain the delay that
the Secretary has numerically counted to
deny the writ petitioner relaxation in the
prescribed period of time for making a
claim.
We
must
observe
that
the
circumstances of the family that have come
on record show that the deceased has an old
mother, the widow and a daughter, of which
this Court took due note in the judgment and
order dated August 20, 2016 passed earlier,
which has not at all been considered by the
Secretary. There is a remark in the judgment
dated August 20, 2016 that there are three
female
dependents
of
the
deceased,
including his old mother and the family have
no other source of income, except the
meager pension of ₹10,346/-.

23. We must remark that in these
circumstances, to blindfoldedly infer that
the family have tided over the financial
crisis within a period of 5 years, acting on
the statutory presumption, is to defeat the
wisdom that the proviso carries. Also, the
impugned order, we must observe, has been
written in utter disregard of the order of
remand passed by this Court dated August
20, 2016, which we do not appreciate.

24. We are satisfied for all the reasons
indicated above that the learned Single Judge
was in error in approving the Secretary's
order, impugned in the writ petition, rejecting
the writ petitioner's claim for compassionate
appointment.

25. This Special Appeal, accordingly,
succeeds and is allowed. The impugned
judgment and order dated December 5, 2018
passed by the learned Single Judge in Writ -
A No.751 of 2017 is hereby set aside and
reversed. The writ petition is allowed. The
impugned order dated December 7, 2016
passed by the Secretary, Department of
Home
Affairs
(Police),
Anubhag-10,
Government of U.P., Lucknow is hereby
quashed.
A
mandamus
is
issued
to
respondent no.1 to consider the writ
petitioner's
claim
for
compassionate
appointment afresh in accordance with the
directions in this judgment within a period of
two months of receipt of a copy of this
judgment. The writ petitioner shall be at
liberty to file an additional memorandum
explaining the delay, annexing therewith such
evidence on which he relies to seek relaxation
in the matter of limitation under the proviso
to Rule 5(1) of the 1974 Rules.
----------
(2022) 10 ILRA 1073
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal Defective No. 324 of 2022

The State of U.P. & Ors. ...Appellants
Versus
Ankita Saxena & Anr. ...Respondents

Counsel for the Appellants: