# Smt. Gomti Devi & Anr v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 1084
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-01
- **Case number:** Writ - A No. 17078 of 2015
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-gomti-devi-anr-v-state-of-u-p-ors-47960
- **Pages:** 16

## Headnote

(A) Civil Law - Constitution of India,1950
- Article 14, 16, 21, 226 & 309 - U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974 - Rule 5 - - Writ Petition -
Challenging order of rejection - claim of
appointment on the compassionate ground -
rejected on the Ground of delay - deceased
employee died in harness - first application for
seeking compassionate appointment submitted
within time by wife of deceased in favour of her
elder son - department accepted the same and
offered appointment - but, elder son could not
join due to mentally unfit - thus, petitioner
submitted
second
application
for
seeking
appointment in favour of her younger son -
authority erred in rejecting on the ground of
delay without considering material facts - writ
petition allowed - matter remanded back to the
authority for re-consideration of claim of
appointment afresh. (Para - 54, 57, 58)

(B) Civil Law - Constitution of India,1950
- Article 14, 16, 21, 226 & 309 - U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974 - Rule 5 - - Writ Petition -
rejection
of
claim
of
appointment
on
compassionate ground - finding of authority -
while rejection that, there was no financial
distress to the family - no material on record to
show -court find that - financial distress has not
been addressed in proper perspective by the
authorities - liabilities being faced by the family
11 All. Smt. Gomti Devi & Anr. Vs. State of U.P. & Ors.
1085
of the deceased employee on account of sudden
death as well as one of the son of the deceased
has suffered with mental illness has not been
taken into consideration - held, finding not
sustainable. (Para - 56, 57, 58, 59)

(C) Civil Law - Constitution of India,1950
- Article 14, 16, 21, 226 & 309 - U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974 - Rule 5 - - Writ Petition -
rejection
of
claim
of
appointment
on
compassionate ground - finding of authority
that, son of petitioner was got married showed
that her family did not have any financial
constraints - Marriage is one of the civil right of
an individual - Even a poor person has a right to
marry under the constitution - Marriage of a
person has no rational nexus with the financial
status of the person as well as has no nexus to
the object of compassionate appointment - rules
of compassionate appointment does not provide
that the marriage would raise presumption that
individual has the financial capacity to support
itself - held, finding of authority is arbitrary and
thus unsustainable - writ petition allowed.(Para
- 50, 51, 53)

Writ Petition Allowed. (E-11)

List of Cases cited: -

Malaya Nanda Sethy Vs St. of Orissa & ors. (Civil
Appeal No. 4103/2022 (arising out of SLP No.
936/2022) dated 20.05.2022.

## Text

_Characters 0–39,379 of 55,543. This is a partial read: ask again with offset=39379 for what follows._

1084 INDIAN LAW REPORTS ALLAHABAD SERIES
parties, that this Court must ensure in the
exercise of jurisdiction under Article 226 of
the Constitution. The tenant is occupying
the demised shop at a measly rent of
Rs.70/- per month. The demised shop has
been held by virtue of protection under the
Rent Control Laws for so long that it is of
no use to the landlord at all.

39. In the clear opinion of this Court,
the judgment passed by the Appellate Court
is manifestly illegal, being based on
irrelevant considerations and the result of a
perverse approach. Bearing in mind the
clear requirements of the law, on the facts
obtaining and the equities arising between
parties in this case, the judgment of the
Appellate Court deserves to be quashed and
that of the Prescribed Authority restored.

40. In the result, this writ petition
succeeds and is allowed. The impugned
judgment and order dated 14.08.2008
passed by the Additional District Judge,
Court No.8, Mathura in P.A. Appeal No. 10
of 2008 is hereby quashed. The judgment
of the Prescribed Authority in P.A. Case
No. 3 of 2002 is restored. The tenants are
granted three months' time to vacate the
demised shop, provided they furnish an
undertaking
on
affidavit
before
the
Prescribed Authority, Mathura within 15
days of receipt of a certified copy of this
judgment,
stipulating
that
they
will
handover vacant and peaceful possession of
the demised shop to the landlord on or
before 10.01.2023. In case of default in
either furnishing the requisite undertaking
or delivering possession by the date fixed,
the release order shall be carried into
execution forthwith.
----------
(2022) 11 ILRA 1084
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2022
BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ - A No. 17078 of 2015

Smt. Gomti Devi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri N.L. Srivastava, Sri Bibhuti Narayan
Singh

Counsel for the Respondents:
C.S.C.

(A) Civil Law - Constitution of India,1950
- Article 14, 16, 21, 226 & 309 - U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974 - Rule 5 - - Writ Petition -
Challenging order of rejection - claim of
appointment on the compassionate ground -
rejected on the Ground of delay - deceased
employee died in harness - first application for
seeking compassionate appointment submitted
within time by wife of deceased in favour of her
elder son - department accepted the same and
offered appointment - but, elder son could not
join due to mentally unfit - thus, petitioner
submitted
second
application
for
seeking
appointment in favour of her younger son -
authority erred in rejecting on the ground of
delay without considering material facts - writ
petition allowed - matter remanded back to the
authority for re-consideration of claim of
appointment afresh. (Para - 54, 57, 58)

(B) Civil Law - Constitution of India,1950
- Article 14, 16, 21, 226 & 309 - U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974 - Rule 5 - - Writ Petition -
rejection
of
claim
of
appointment
on
compassionate ground - finding of authority -
while rejection that, there was no financial
distress to the family - no material on record to
show -court find that - financial distress has not
been addressed in proper perspective by the
authorities - liabilities being faced by the family
11 All. Smt. Gomti Devi & Anr. Vs. State of U.P. & Ors.
1085
of the deceased employee on account of sudden
death as well as one of the son of the deceased
has suffered with mental illness has not been
taken into consideration - held, finding not
sustainable. (Para - 56, 57, 58, 59)

(C) Civil Law - Constitution of India,1950
- Article 14, 16, 21, 226 & 309 - U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974 - Rule 5 - - Writ Petition -
rejection
of
claim
of
appointment
on
compassionate ground - finding of authority
that, son of petitioner was got married showed
that her family did not have any financial
constraints - Marriage is one of the civil right of
an individual - Even a poor person has a right to
marry under the constitution - Marriage of a
person has no rational nexus with the financial
status of the person as well as has no nexus to
the object of compassionate appointment - rules
of compassionate appointment does not provide
that the marriage would raise presumption that
individual has the financial capacity to support
itself - held, finding of authority is arbitrary and
thus unsustainable - writ petition allowed.(Para
- 50, 51, 53)

Writ Petition Allowed. (E-11)

List of Cases cited: -

Malaya Nanda Sethy Vs St. of Orissa & ors. (Civil
Appeal No. 4103/2022 (arising out of SLP No.
936/2022) dated 20.05.2022.

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. Heard learned counsel for the
petitioners
and
the
learned
Standing
Counsel for the State-respondents.

2. The present writ petition is
preferred challenging the order dated 28th
January,
2015
passed
by
DIG
(Establishment), Police Head Quarter, U.P.,
Allahabad and with a further prayer to issue
a mandamus directing the respondent no.2
to appoint petitioner no.2 on compassionate
ground in the office of the respondent.

3. The submission of the learned
counsel for the petitioners is that the
husband of petitioner no.1 and father of
petitioner no.2, namely, Late Prem Shankar
Dwivedi was a Constable and he was
posted at District Sultanpur in the year
1999. Late Prem Shankar Dwivedi died
during his service while working on the
post of Constable in District - Sultanpur.
After the death of the deceased employee,
petitioner no.1 submitted a representation
dated
9th
September
1999
before
respondent
no.2
and
requested
that
petitioner no.1 is an illiterate lady and,
therefore, compassionate appointment may
be granted to her elder son, namely, Shri
Dinesh Kumar Dwivedi, as there is no
earning member in the family of petitioner
no.1 after death of her husband.

4. After completion of all the
formalities and after due inquiry with
regard to financial status of family,
respondent no.2, has issued appointment
letter
dated
11th
December,
2014
appointing Shri Dinesh Kumar Dwivedi
(eldest son of deceased employee) on the
post of Constable (M) and the aforesaid
appointment letter dated 11th December,
2004 further provided that Shri Dinesh
Kumar Dwivedi will appear before the
Police Training Centre, Moradabad on 15th
December, 2004 for six months training.
Unfortunately, mental condition of Dinesh
Kumar Dwivedi was very serious on 14th
December, 2004 and, therefore, in place of
joining the place of Training Centre,
Moradabad for training on 15th December,
2004, he was hospitalized at Primary
Health Centre, Tarun, Faizabad on 17th
December, 2004 as he was suffering from
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
mental disease and was continuously
undergoing treatment.

5. On account of the aforesaid fact,
eldest son of petitioner no.1 (namely Shri
Dinesh Kumar Dwivedi ) could not join the
aforesaid post. On 2nd May, 2006,
petitioner no.1 filed a representation along
with an affidavit before the respondent no.2
with a request that mental condition of her
son namely Shri Dinesh Kumar Dwivedi
has deteriorated and is unable to join the
post in question and as such appointment
letter may be issued in favour of petitioner
no.2, being younger son of petitioner no.1,
namely, Shri Manoj Kumar Dwivedi for
being appointed on compassionate ground.

6. After receiving the aforesaid
representation of petitioners, respondent
no.2 did not pass any order and as such
petitioners preferred a reminder dated 1st
January, 2008 before respondent no.2 along
with an affidavit and medical certificate of
Shri
Dinesh
Kumar
Dwivedi.
The
petitioners
thereafter
approached
the
respondent no.2 on several occasions for
consideration of appointment of petitioner
no.2 on compassionate ground in place of
his elder brother. However, no action was
taken on the request of the petitioners.

7. Thereafter, the petitioner no.2
met respondent no.2 personally on 2nd
July, 2008 at his office and narrated the
entire grievance and further requested for
grant of compassionate appointment. On
the aforesaid, respondent no.2 orally
directed the petitioner no.1 to file a fresh
representation in respect of grant of
compassionate
appointment
and
in
furtherance thereof, petitioner no. 1 has
filed a representation dated 5th July, 2008
along with an affidavit and medical
certificate of Shri Dinesh Kumar Dwivedi
before the respondent no.2.

8.

Despite
the
aforesaid
representation, no order was passed by the
respondent no.2 for grant of compassionate
appointment and as such the petitioner
preferred Writ-A No.67008 of 2008 before
this Court wherein a direction was issued
on 27th August, 2012 to respondent no. 2
to consider the claim for compassionate
appointment
of
petitioner
no.2
in
accordance with law by a reasoned order
within a period of six weeks from the date
of submission of a certified copy of the
order. The respondent no.2 thereafter,
referred the matter to respondent no.1 for
condonation of delay in accordance with
Rule 5 of U.P. Recruitment of Dependants
of Government Servants Dying in Harness
Rules, 1974 (hereinafter referred as Rules
of 1974). The State Government by means
of a communication dated 19th January,
2015 to the Police Head Quarter has
rejected the application for compassionate
appointment and has refused to condone
the delay in preferring the application for
compassionate appointment. In pursuance
to the aforesaid, the respondent no.2 passed
the impugned order dated 28th January,
2015 rejecting the claim of the petitioners.

9. It is submitted by learned
counsel for the petitioners that the rejection
of the claim of the petitioners is arbitrary
and is not tenable under law. He submits
that impugned order takes notice of the fact
that the deceased employee expired on 7th
August, 1999 and the application for
compassionate appointment was submitted
on 6th May, 2013, which is after a period
of 13 years from the date of death of the
employee and as such the application was
held to be time barred. The respondents
11 All. Smt. Gomti Devi & Anr. Vs. State of U.P. & Ors.
1087
further did not find it appropriate to
condone the delay in filing the application.

10. The submission of learned
counsel for the petitioners is that the initial
application for grant of compassionate
appointment
was
submitted
on
9th
September, 1999 before the respondent
no.2 and on the aforesaid application,
appointment letter was issued in favour of
eldest son of petitioner no.1 on 11th
December, 2004. However, eldest son of
petitioner no.1 could not join in pursuance
of the appointment letter as he was
mentally unfit and on account of aforesaid
fact,
petitioner
no.1
again
filed
a
representation dated 2nd May, 2006 before
respondent no.1, that in place of eldest son
of petitioner no. 1 namely Shri Dinesh
Kumar Dwivedi, who is now mentally
unsound, the younger son of petitioner
no.1, namely, Shri Manoj Kumar Dwivedi
(Petitioner no. 2) be appointed. It is further
submitted that the aforesaid application
remained pending and the petitioner no. 1
had filed a reminder on 1st January, 2008
along with medical certificate of Shri
Dinesh Kumar Dwivedi and an affidavit. It
is further submitted that when no action
was taken, petitioner no.2 met respondent
no.2 personally on 2nd July, 2008 at his
office and respondent no.2 orally directed
petitioner no. 1 to submit a fresh
representation in respect of the claim of
petitioner no. 2 and, thereafter, a fresh
representation dated 5th July, 2008 was
submitted
by
petitioner
no.
1
for
appointment
of
petitioner
no.2
on
compassionate grounds.

11. Learned counsel for petitioners
further submits that once the initial
application has been submitted in the year
1999 and the respondents after considering
the financial condition and other aspects of
the matter has issued the appointment letter
in favour of eldest son of petitioner no.1,
who subsequently became medically unfit,
when the appointment letter was issued, as
such the petitioner no.1 by representation
had requested for appointment of petitioner
no.2 in place of eldest son Shri Dinesh
Kumar Dwivedi and as such there is no
delay in approaching the respondents for
grant of compassionate appointment.

12. It is submitted that the
application for compassionate appointment,
which was firstly preferred in the year 1999
was finally considered by the respondents
in 2004 and when the eldest son of the
petitioner no. 1, namely, Shri Dinesh
Kumar Dwivedi could not join on account
of his mental condition, an application was
filed to appoint petitioner no.2 in his place
and as such the circumstances in which the
petitioner no. 1 was forced to apply for
changing the offer of compassionate
appointment in favour of petitioner no 1,
warranted under law for condonation of
delay (if any) in exercise of power under
the proviso to Rule 5 of the Rules of 1974.

13. It is further submitted that the
rejection of the claim of compassionate
appointment of petitioners on the ground of
delay, is arbitrary and untenable under law
and without application of mind. While
passing the impugned order, the authority
concerned has not taken into consideration
the aforesaid facts and circumstances which
warranted condonation of delay and further
the finding recorded in the impugned order
that the petitioners applied for the first time
in the year 2013 is also dehors the record.

14. It is further submitted on
behalf of petitioners that the impugned
order further rejects the claim of petitioners
on the ground that the petitioners is
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
receiving family pension to the tune of
Rs.7,000/- per month and has income from
agricultural land of Rs.7,700/- per month
and as such respondent no.2 has held that
financial condition of the petitioners is not
such that the compassionate appointment
may be granted. The respondent no.2
further by passing impugned order has
taken
objection
to
the
marriage
of
petitioner no.2 during his poor financial
condition
and
as
such
has
denied
compassionate appointment. It has also
been taken note in the impugned order that
the petitioner no.1 is illiterate however, she
could have applied for appointment, as
even illiterate persons are being given
appointment on compassionate ground. The
impugned order takes note of the fact that
the medical certificate of petitioner no.1
has not been filed and that the petitioner no.
1 has waited for the fact that the petitioner
no.2 becomes major and thereafter, has
applied
for
grant
of
compassionate
appointment.

15. It is submitted that the family
pension being given to the petitioners is not
sufficient particularly in view of the fact
that eldest son of petitioner no.1 is
suffering from mental illness and a family
of four persons would not survive at a
meagre family pension of Rs.7,000/- per
month.

16. It is further submitted that the
agricultural income shown as Rs.7,700/-
per month is dehors the record as there was
no
evidence
before
the
respondent
authorities which could have found the
basis of the aforesaid income nor any such
documentary evidence was served on the
petitioners neither any opportunity was
given prior to determination of the
agricultural income of the petitioners. He
submits that initially on the death of the
employee, the petitioner no.1 had given the
name of his eldest son Shri Dinesh Kumar
Dwivedi. However, on the date of issuance
of appointment letter in 2004, he was
mentally sick and as such he was not in a
position to join the duties and as such
respondents cannot raise objection that
petitioner no.1 should have applied for
grant of compassionate appointment. The
rules in this respect give a right to any
family member to be appointed on
compassionate ground and as such the
choice vests with the petitioners.

17. It is submitted that finding
recorded by the respondent no.2 that
petitioner no. 1 waited for the younger son
Manoj Kumar Dwivedi to become major to
apply for compassionate appointment is not
in accordance with law as initially eldest
son had applied for grant of compassionate
appointment. However, he suffered from
mental sickness and as such change was
sought and petitioner no.2 was requested to
be appointed on compassionate ground .

18. Learned Standing Counsel on
behalf of the respondents submits that the
husband of petitioner no.1 was posted as
Constable in District Sultanpur, who died
on 7th August, 1999 while in service. After
the death of the aforesaid employee,
petitioner no.1 applied for appointment of
Shri Dinesh Kumar Dwivedi (eldest son of
deceased employee) on compassionate
ground and the Police Head Quarter by
order
dated
11th
December,
2004
appointed Shri Dinesh Kumar Dwivedi as
Constable (M) with the condition that
Dinesh Kumar Dwivedi will join the Police
Training Centre, Moradabad on 15th
December, 2004.

19. Learned Standing Counsel
further submitted that Shri Dinesh Kumar
11 All. Smt. Gomti Devi & Anr. Vs. State of U.P. & Ors.
1089
Dwivedi due to his mental sickness could
not join for training. Thereafter, petitioner
no.1 preferred application for grant of
compassionate appointment to petitioner
no.2 in place of Shri Dinesh Kumar
Dwivedi. The aforesaid application remain
pending and, therefore, this Court by order
dated 27th August, 2015 passed in Writ-A
No.67008 of 2008 directed the respondents
to decide the claim of the petitioners for
compassionate appointment within a period
of six weeks from the date of submission of
a certified copy of the order. However, the
claim of the petitioners did not find favour
of the authorities concerned and the same
was rejected by means of the impugned
order on the ground that the claim was filed
after a period of five years and no ground
was substantiated for condoning the delay
in preferring the application. He submits
that the application of the petitioners have
been rightly rejected and the impugned
order is in accordance with law.

20. Appointment in public service
are to be made with open invitation to all
eligible candidates and on merit. In all the
government vacancies equal opportunity
should be provided to all aspirants as
mandated under Articles 14 and 16 of the
Constitution.
No
other
mode
of
appointment nor any other consideration is
permissible. However, appointment on
compassionate
ground
offered
to
a
dependent of a deceased employee is an
exception to the said norms. The exception
is carved out to meet certain exigencies and
in the interest of justice out of humanitarian
consideration. The whole object of granting
compassionate employment is thus to
enable the family to tide over the crisis.
The favourable treatment given to such
dependant of the deceased employee in
such posts has a rational nexus with the
object sought to be achieved viz. relief
against destitution. The exception to the
rule made in favour of the family of the
deceased employee is in consideration of
the services rendered by him and the
legitimate expectations, and the change in
the status and affairs, of the family on
account of sudden ending of erstwhile
employment.

21.

Appointment
on
compassionate grounds is not automatic,
but
subject
to
scrutiny
of
various
parameters including the financial position
of the family, the economic dependence of
the family upon the deceased employee.
Therefore, no one can claim to have a
vested
right
for
appointment
on
compassionate grounds.

22. In Malaya Nanda Sethy Vs.
State of Orissa and others passed in Civil
Appeal No. 4103 of 2022 [Arising out of
S.L.P.(Civil) No. 936 of 2022] dated 20th
May, 2022 has held that application for
compassionate
appointment
is
to
be
considered well in time. The consideration
must be fair, reasonable and based on
relevant considerations. The application
cannot be rejected on the basis of frivolous
and for reasons extraneous to the facts of
the case. Then and then only the object and
purpose of appointment on compassionate
grounds can be achieved.

23. In the present case, husband of
petitioner no.1 and father of petitioner no.2,
namely, Late Prem Shankar Dwivedi was a
Constable and he was posted at District -
Sultanpur in the year 1999. However, he
died on 7.8.1999 during his service while
working on the post of Constable in District
- Sultanpur. After the death of deceased
employee, petitioner no.1 submitted a
representation dated 9th September 1999,
before the respondent no.2 and requesting
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
that the petitioner no.1 is an illiterate lady
and, therefore, compassionate appointment
may be granted to her elder son, namely,
Dinesh Kumar Dwivedi because there is no
earning member in the family of petitioner
no.1 after the death of her husband.

24. In pursuance to aforesaid
application for grant of compassionate
appointment, respondent no. 2 has issued
an appointment letter dated 11th December,
2004 directing the appointment of Shri
Dinesh Kumar Dwivedi (eldest son of the
deceased employee) on the post of
Constable
(M)
and
the
aforesaid
appointment letter further provided that
Shri Dinesh Kumar Dwivedi will appear
before
the
Police
Training
Centre,
Moradabad on 15th December, 2004 for six
months training.

25. Unfortunately, the mental
condition of Shri Dinesh Kumar Dwivedi
was very serious on 14th December, 2004
and, therefore, in place of joining the place
of Training Centre, Moradabad for training
on
15th
December,
2004,
he
was
hospitalized at Primary Health Centre,
Tarun, Faizabad on 17th December, 2004
as he was suffering from mental disease
and
was
continuously
going
under
treatment. In this respect a medical
certificate dated 17th December, 2007 has
been issued by the In-charge, Medical
Officer, Primary Health Centre, Tarun,
Faizabad.

26. On account of the mental health
of elder son of petitioner no. 1 not been
favourable,
petitioner
no.
1
preferred
representation dated 2nd May, 2006 along
with affidavit informing the respondent
authorities that mental health of Shri Dinesh
Kumar Dwivedi have become worst and,
therefore, requested that appointment letter be
issued in favour of the petitioner no. 2
(younger son of petitioner no. 1) on
compassionate
ground.
The
aforesaid
representation dated 2nd May, 2006 further
stated that on 15th November, 2005 petitioner
no. 1 had informed the Superintendent of
Police, Sultanpur about the medical condition
of Shri Dinesh Kumar Dwivedi and had
further
requested
for
appointment
of
petitioner no. 2 in place of Dinesh Kumar
Dwivedi.

27. When the respondents did not
take any action on representation of the
petitioner no. 1 for appointment of petitioner
no. 2 in place of Shri Dinesh Kumar
Dwivedi, then the petitioner no. 1 again filed
a representation dated 1st January, 2008
before the respondent no. 2 along with
affidavit and medical certificate of Shri
Dinesh
Kumar
Dwivedi.
Despite
the
aforesaid representation of the petitioner no.
1, no action was taken by the respondent
authorities and only assurances were given
that the matter would be taken up and the
decision would be communicated. Since no
order was being passed on the abovementioned representation of the petitioners,
the petitioners met the respondent no. 2
personally on 2nd July, 2008 at Allahabad
and the entire grievance was narrated to
respondent no. 2, then respondent no. 2
directed petitioner no. 1 to give a fresh
representation along with entire records so
that matter can be considered. On the oral
direction of respondents, the petitioner no. 1
again preferred representation dated 5th July,
2008 along with affidavit and medical
certificate for issuance of appointment letter
in favour of petitioner no. 2 in place of Shri
Dinesh Kumar Dwivedi on compassionate
ground.

28. No action was taken by the
respondents
on
the
above-mentioned
11 All. Smt. Gomti Devi & Anr. Vs. State of U.P. & Ors.
1091
representations of petitioner no. 1 and as
such the petitioner no. 1 preferred Writ
Petition No 67008 of 2008 (Smt Gomti
Devi Vs State of U.P.) before this Court.
The above-mentioned writ petition was
finally decided by judgement and order
dated 27th August, 2012. By order dated
27th August, 2012 this Court directed the
respondents to consider the claim for
compassionate appointment of petitioner
no. 2 in accordance with law by a reasoned
order within a period of six weeks from the
date of submission of certified copy of the
order passed by this Court.

29. The petitioner no. 2 submitted
the above-mentioned order dated 27th
August, 2012 before the respondent no. 2
on 24th September, 2012 along with the
covering letter through registered post.
After receiving the certified copy of the
order dated 27th August, 2012, respondent
no.
2
has
rejected
the
claim
for
compassionate
appointment
of
the
petitioner no. 2 by impugned order dated
28th January, 2015.

30. The claim for compassionate
appointment is governed by Uttar Pradesh
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974.
The Rule 5 of the aforesaid Rules of 1974
provides that in case the 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, one
member of his family who is not already
employed under the Central government or
a State government shall on making an
application for the purpose be given a
suitable employment in government service
on a post. The aforesaid Rules further
provides
that
the
application
for
employment shall be made within a period
of five years from the date of death of the
government servant. The Rules of 1974
further empower the State Government to
relax the requirement including the time
limit where it is satisfied that the time limit
fixed
for
making
application
for
employment causes undue hardship in a
particular case.

31. A perusal of the impugned
order dated 28th January, 2015 would
demonstrate
that
the
application
for
compassionate
appointment
of
the
petitioner no. 2 was send to the State
Government treating the same to be beyond
the five years limit prescribed in Rule 5 of
the Rules of 1974. The respondent no. 2 by
impugned order dated 28th January, 2015
rejected the claim of the petitioner no. 2 for
compassionate appointment and thereby
declined to relax the time limit provided in
the above-mentioned Rules of 1974.

32. The rejection of the claim for
compassionate appointment is made by the
respondents on the ground that the
deceased employee expired on 7th August,
1999 and the petitioner no. 1 has applied
for appointment on compassionate ground
by application dated 6th May, 2013 after
almost 13 years of the death of the
deceased employee. On the aforesaid basis
respondents came to the conclusion that the
application for compassionate appointment
was barred by time. Further, the claim of
petitioners has also been rejected on the
ground that the petitioners are getting
family pension of Rs. 7000/- per month and
further income from agricultural land to the
tune of Rs. 7700/- per month is being
received by the petitioners and as such the
respondents have come to the conclusion
that the family is not in financial crisis. The
respondents further taking note of the fact
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
that the petitioner no. 2 is married and in
case
the
financial
condition
of
the
petitioners' family was not good then the
petitioner no. 2 would not have married.
The impugned order further states that the
petitioner no. 1 has not applied for
compassionate appointment on the ground
that she is illiterate despite the fact that the
State
Government
also
provide
employment to illiterate person. The
respondents further recorded that the
petitioners have not filed any proof with
regard to ill-health of petitioner no. 1 and
petitioner no. 1 waited for petitioner no. 2
to become major and then has applied for
grant of compassionate appointment and on
the aforesaid basis claim of the petitioners
for compassionate appointment has been
rejected being filed beyond the time
prescribed under the Rules of 1974.

33. In the present case, deceased
employee expired on 7th August, 1999 and
application for grant of compassionate
appointment was preferred by petitioner no.
1 on 9th September, 1999 for appointment
of elder son of petitioner no. 1 being Shri
Dinesh Kumar Dwivedi. In the counter
affidavit filed by the respondents in
paragraph 10 it has been stated that the
claim for compassionate appointment of the
petitioner no. 1 for appointment of the elder
son of petitioner no. 1 was processed by
Superintendent of Police, Sultanpur by
communication dated 8th March, 2000
within the time limit prescribed under the
1974 Rules and the appointment letter was
issued on 11the December, 2004 in favour
of Shri Dinesh Kumar Dwivedi (elder son
of petitioner no. 1) by the police head
quarter.

34. In pursuance to abovementioned appointment order dated 11th
December,
2004,
Shri
Dinesh
Kumar
Dwivedi could not join the post on account of
his serious mental condition. The aforesaid
fact with regard to Shri Dinesh Kumar
Dwivedi not joining in pursuance to the
appointment letter dated 11th December,
2004 is admitted by the respondents in the
counter affidavit.

35. The petitioner no. 1 considering
the mental health of Shri Dinesh Kumar
Dwivedi and the fact that he may not be able
to join his post in pursuance to the
appointment letter dated 11the December,
2004 preferred representation dated 2nd May,
2006 along with affidavit before the
respondent no. 2 informing about the illhealth of Shri Dinesh Kumar Dwivedi and
further requesting that the petitioner no. 2
may be appointed in place of Shri Dinesh
Kumar Dwivedi. The aforesaid fact that the
petitioner no. 1 had approach the respondent
by representation dated 2nd May, 2006 has
not been denied by the respondents in the
counter affidavit. The representation dated
2nd May, 2006 further records that on 15th
November, 2005, the Superintendent of
Police, Sultanpur was informed about the
aforesaid fact.

36. The petitioner no. 1 thereafter
preferred representation dated 1st January,
2008 before the respondent no. 2 along with
affidavit and medical certificate of Shri
Dinesh Kumar Dwivedi thereby requesting
the
respondent
authorities
to
issue
appointment letter in favour of petitioner no.
2 as the mental condition of Shri Dinesh
Kumar Dwivedi is not such as would permit
him to join his duties. The aforesaid
representation dated 1st January, 2008 is not
disputed by the respondents in the counter
affidavit.

37. Thereafter the petitioner no. 1
has approached the office of respondent no.
11 All. Smt. Gomti Devi & Anr. Vs. State of U.P. & Ors.
1093
2 and met him personally on 2nd July, 2008
at Allahabad and has narrated the entire
grievance of the petitioner. The respondent
no. 2 had orally directed the petitioner no. 1
to submit a fresh representation along with
the entire record and as such petitioner no.
1 has filed representation dated 5th July,
2008 along with medical certificate of Shri
Dinesh Kumar Dwivedi and affidavit and
has further requested for issuance of
appointment letter in favour of petitioner
no. 2. The aforesaid representation dated
5th July, 2008 has not been denied by the
respondents in the counter affidavit. When
no action was taken by the respondents on
the representation of the petitioner no. 1,
the petitioner no. 1 preferred Writ Petition
No. 67008 of 2008 before this Court and
said writ petition was disposed of by order
dated 27th August, 2012 directing the
respondents to take decision on the claim
for compassionate appointment of the
petitioner no. 2. Thereafter the claim for
compassionate
appointment
of
the
petitioner no. 2 has been rejected by the
respondent authorities by impugned order
dated 28th January, 2015.

38. The basis for rejection of the
claim of the petitioner no. 2 for grant of
compassionate appointment is on account
of the fact that the application for grant of
compassionate appointment was preferred
by petitioner no. 1 on 6th May, 2013
whereas the deceased employee has died on
7th August, 1999. As per the impugned
order,
the
claim
for
compassionate
appointment was made by the petitioners
beyond the five years limit prescribed
under the Rules of 1974.

39. The aforesaid ground for
rejection of the claim of the petitioner is
untenable in view of the fact that the
petitioner no. 1 initially applied for grant of
compassionate
appointment
on
9th
September,
1999
and
the
aforesaid
application of the petitioner for grant of
compassionate appointment was processed
by the respondent authorities and the
appointment letter dated 11th December,
2004 was issued in favour of Shri Dinesh
Kumar Dwivedi (elder son of petitioner no.
1). It is to be noted that petitioner no. 1
promptly
made
application
for
compassionate
appointment
on
9th
September, 1999 (within a month from the
date of death of the government servant)
and the respondents after almost 4 years
proceeded
to
decide
the
aforesaid
application for compassionate appointment
of the petitioners. The appointment letter
for compassionate appointment was issued
in favour of Shri Dinesh Kumar Dwivedi
(elder son of petitioner no. 1) on 11th
Decmeber, 2004, however, during the
intervening period, mental health of Shri
Dinesh Kumar Dwivedi deteriorated and as
such, he was not in a position to join the
post as per the appointment letter dated
11th December, 2004. The petitioner no. 1
thereafter approached the respondents for
issuing appointment letter in favour of
petitioner no. 2 (being the younger son of
petitioner no. 1) in place of Shri Dinesh
Kumar Dwivedi. The initial information
with regard to the aforesaid was submitted
by the petitioner on 15th November, 2005
and thereafter the representation dated 2nd
May, 2006 along with the affidavit was
also submitted before the respondent
authorities. Further representation was also
submitted by the petitioner on 1st January,
2008 and 5th July, 2008. The aforesaid
facts have not been disputed by the
respondents in the counter affidavit filed in
the present writ petition.

40. The impugned order takes
notice of the application for grant of
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
compassionate appointment of 6th May,
2013 despite the fact that prior to the
aforesaid application, the petitioner had
already preferred the
application for
compassionate
appointment
on
9th
September, 1999 which was followed by
issuance of appointment letter on 11th
December, 2004 in favour of Shri Dinesh
Kumar Dwivedi. However, Shri Dinesh
Kumar Dwivedi could not join his duty on
account of his mental health and as such
representation dated 2nd May, 2006 was
preferred bringing to the notice of the
respondent authorities the ill-health and
mental condition of Shri Dinesh Kumar
Dwivedi and further for issuance of
appointment letter in favour of petitioner
no. 2 (younger son of petitioner no. 1). The
aforesaid facts have not been considered by
the respondent authorities while passing the
impugned order.

41. The date of application for
compassionate appointment is recorded in
the impugned order as 6th May, 2013
despite the fact that it is an admitted case of
the respondents that the first application for
compassionate appointment was preferred
in 1999 itself and thereafter in 2006, the
petitioner no. 1 had requested the change of
the
name
of
the
beneficiary
of
compassionate appointment in place of Shri
Dinesh Kumar Dwivedi who was mentally
not of sound mind to join the post offered.
It is also to be noted that the respondent
authorities by order dated 11th December,
2004 has issued appointment letter in
favour of Shri Dinesh Kumar Dwivedi
which was after considering all the aspects
with regard to grant of compassionate
appointment.

42. The petitioner no. 1 had sought
replacement of the name of Shri Dinesh
Kumar Dwivedi with the name of petitioner
no. 2 on account of unsound mental
condition of Shri Dinesh Kumar Dwivedi.
In this respect the petitioners have also
filed medical certificate and affidavit
before the respondent authorities. All these
aspects have not been considered by the
respondent authorities while passing the
impugned order. The finding recorded in
the impugned order that application for
compassionate appointment has been made
on 6th May, 2013 is not sustainable as it is
admitted in the counter affidavit that the
application for compassionate appointment
was preferred firstly in the year 1999 and
thereafter in the year 2006 (for replacement
of the name of the beneficiary), as such, the
impugned order insofar it as it rejects the
application of the petitioner as being time
barred is not sustainable under law. The
respondents are obliged under law to take a
decision considering all the facts and
circumstances of the case and the nonconsideration of the facts herein before
stated would make the impugned order
unsustainable under law. The respondent
authorities while passing the impugned
order has failed to take into consideration
the important facts which have bearing on
the decision of the respondent authorities.

43. It is to be noted that the
compassionate appointment was offered by
the respondent authorities in pursuance to
the application dated 9th September, 1999
to Shri Dinesh Kumar Dwivedi, however,
he could not join the post on account of his
mental health and as such the petitioner no.
1 sought replacement of the name of the
beneficiary as petitioner no. 2. It is to be
noted that Shri Dinesh Kumar Dwivedi has
not joined his duties in pursuance to the
appointment letter dated 11th December,
2004 and the right of employment on
compassionate
ground
which
stood
fortified by issuance of appointment letter
11 All. Smt. Gomti Devi & Anr. Vs. State of U.P. & Ors.
1095
dated 11th December, 2004 has not
extinguished on account of non-joining of
Shri Dinesh Kumar Dwivedi on medical
grounds and the subsequent replacement
being sought by petitioner no. 1 by
requesting for appointment of petitioner no.
2 in place of Shri Dinesh Kumar Dwivedi
was in continuation of the earlier order
dated 11th December, 2004. The aforesaid
replacement of the beneficiary under the
compassionate appointment scheme was
being sought on account of the fact that the
employee died in the year 1999 and
application
for
appointment
on
compassionate ground was preferred in the
year 1999 itself by petitioner no. 1,
however, the respondent authorities issued
the appointment letter on 11th December,
2004 and during the intervening period
subsequent developments have taken place
and as a result of the same, the mental
health condition of Shri Dinesh Kumar
Dwivedi was not such as he could have
joined the post in pursuance to the
appointment letter dated 11th December,
2004 and as such the petitioner no. 1 sought
replacement of the name of beneficiary for
grant of compassionate appointment in
favour of the petitioner no. 2.

44.