# Sudhir Kumar Mishra v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-19
- **Bench:** Amreshwar Pratap Sahi, Dr. Vijay Laxmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudhir-kumar-mishra-v-state-of-u-p-ors-44294
- **Pages:** 11

## Headnote

This special appeal has been filed against the judgment and order dated 20.01.2016 passed by learned Single
Judge in Writ Petition No.7501 (SS) of 2005, Sudhir Kumar Mishra vs. The State of Uttar Pradesh and others
whereby the order dated 28.09.2006 of the state government rejecting the representation of the petitioner for
compassionate appointment was confirmed and Writ Petition was dismissed.

The father of the appellant, Shri Rama Shanker Mishra, while working as Collection Amin at Tehsil Bighapur,
District Unnao, died on 01.10.1996 leaving behind his widow, three daughters and the petitioner. The mother
of the petitioner, Smt. Vijaya Devi, did not claim compassionate appointment but moved an application on
28.08.2000 before the District Magistrate, Unnao, making submissions that she did not claim compassionate
appointment since she was neither qualified nor was able to take up employment due to her continued illness.
Her three daughters were of marriageable age and were not inclined to take up any employment. Her only
son, the petitioner, who was studying in Class-X, was not eligible for appointment as he was minor and was to
attain majority in year 2004. In this situation, it was, thus, prayed that in view of amended provisions of
Section 5 of the Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules,
1974 ( in short referred to as "1974 Rules") period of 5 years may be relaxed in respect of her son who may
be considered for employment and a post be kept reserved for employment of her son under the Rules.

On the basis of objective considerations founded on the disclosures made by the petitioner in this case for
compassionate appointment and having considered the reasons for the delay, we are of the opinion that
undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused to the
petitioner and his family 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 of the case. In view the income of the family, its financial condition, the extent of
dependency and marital status of its members, its liabilities, the terminal benefits received by the family; the
age, together with the nugatory income from any other sources in this case, we are of the view that the family
continues to suffer financial distress and hardship occasioned by the death of the bread winner. Considering
the penurious condition of the family, it appears to be one of the rarest of rare cases where due to exceptional
1000 INDIAN LAW REPORTS ALLAHABAD SERIES

circumstances the family needs the extraordinary remedy to elate the condition of family. It would be
appropriate to deal with the case of the petitioner in a just and equitable manner.
Appeal Allowed.

Held: Para-

Case Law discussed:
Shiv Kumar Dubey and Ors. Vs.State of U.P. and Ors. MANU/UP/0189/2014, 2014 (2)ADJ 312.
 Shiv Kumar Dubey and Ors. Vs. State of U.P. and Ors.
Subhash Yadav vs. State of U.P. through Secretary Education Department (Basic) and Ors.
MANU/UP/2289/2010,Umesh Kumar Nagpal v. State of Haryana and others, MANU/SC/0701/19941994) 4
SCC 138,Sushma Gosain and others v. Union of India and others, MANU/SC/0519/1989 : (1989) 4 SCC
468,Director of Education (Secondary) and another v. Pushpendra Kumar and others, MANU/SC/0373/1998
1998) 5 SCC 192, Haryana State Electricity Board and another Vs.Hakim Singh MANU/SC/0964/1997 , Md.
Zamil Ahmed Vs.The State of Bihar and Ors. MANU/SC/0515/2016 ,

## Text

8 All. Sudhir Kumar Mishra Vs State Of U.P. & Ors.
999
(2016) 8 ILRA 999
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.08.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Special Appeal No.- 175 Of 2016

Sudhir Kumar Mishra ...Appellant
 Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Anuj Kumar Garg, Ram Mohan Mishra

Counsel for the Respondents:
C.S.C.

This special appeal has been filed against the judgment and order dated 20.01.2016 passed by learned Single
Judge in Writ Petition No.7501 (SS) of 2005, Sudhir Kumar Mishra vs. The State of Uttar Pradesh and others
whereby the order dated 28.09.2006 of the state government rejecting the representation of the petitioner for
compassionate appointment was confirmed and Writ Petition was dismissed.

The father of the appellant, Shri Rama Shanker Mishra, while working as Collection Amin at Tehsil Bighapur,
District Unnao, died on 01.10.1996 leaving behind his widow, three daughters and the petitioner. The mother
of the petitioner, Smt. Vijaya Devi, did not claim compassionate appointment but moved an application on
28.08.2000 before the District Magistrate, Unnao, making submissions that she did not claim compassionate
appointment since she was neither qualified nor was able to take up employment due to her continued illness.
Her three daughters were of marriageable age and were not inclined to take up any employment. Her only
son, the petitioner, who was studying in Class-X, was not eligible for appointment as he was minor and was to
attain majority in year 2004. In this situation, it was, thus, prayed that in view of amended provisions of
Section 5 of the Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules,
1974 ( in short referred to as "1974 Rules") period of 5 years may be relaxed in respect of her son who may
be considered for employment and a post be kept reserved for employment of her son under the Rules.

On the basis of objective considerations founded on the disclosures made by the petitioner in this case for
compassionate appointment and having considered the reasons for the delay, we are of the opinion that
undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused to the
petitioner and his family 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 of the case. In view the income of the family, its financial condition, the extent of
dependency and marital status of its members, its liabilities, the terminal benefits received by the family; the
age, together with the nugatory income from any other sources in this case, we are of the view that the family
continues to suffer financial distress and hardship occasioned by the death of the bread winner. Considering
the penurious condition of the family, it appears to be one of the rarest of rare cases where due to exceptional
1000 INDIAN LAW REPORTS ALLAHABAD SERIES

circumstances the family needs the extraordinary remedy to elate the condition of family. It would be
appropriate to deal with the case of the petitioner in a just and equitable manner.
Appeal Allowed.

Held: Para-

Case Law discussed:
Shiv Kumar Dubey and Ors. Vs.State of U.P. and Ors. MANU/UP/0189/2014, 2014 (2)ADJ 312.
 Shiv Kumar Dubey and Ors. Vs. State of U.P. and Ors.
Subhash Yadav vs. State of U.P. through Secretary Education Department (Basic) and Ors.
MANU/UP/2289/2010,Umesh Kumar Nagpal v. State of Haryana and others, MANU/SC/0701/19941994) 4
SCC 138,Sushma Gosain and others v. Union of India and others, MANU/SC/0519/1989 : (1989) 4 SCC
468,Director of Education (Secondary) and another v. Pushpendra Kumar and others, MANU/SC/0373/1998
1998) 5 SCC 192, Haryana State Electricity Board and another Vs.Hakim Singh MANU/SC/0964/1997 , Md.
Zamil Ahmed Vs.The State of Bihar and Ors. MANU/SC/0515/2016 ,

(Delivered by Hon'ble Dr. Vijay Laxmi, J.)

1. This special appeal has been filed against the judgment and order dated 20.01.2016
passed by learned Single Judge in Writ Petition No.7501 (SS) of 2005, Sudhir Kumar Mishra vs.
The State of Uttar Pradesh and others whereby the order dated 28.09.2006 of the state government
rejecting the representation of the petitioner for compassionate appointment was confirmed and
Writ Petition was dismissed.

2. The father of the appellant, Shri Rama Shanker Mishra, while working as Collection
Amin at Tehsil Bighapur, District Unnao, died on 01.10.1996 leaving behind his widow, three
daughters and the petitioner. The mother of the petitioner, Smt. Vijaya Devi, did not claim
compassionate appointment but moved an application on 28.08.2000 before the District Magistrate,
Unnao, making submissions that she did not claim compassionate appointment since she was
neither qualified nor was able to take up employment due to her continued illness. Her three
daughters were of marriageable age and were not inclined to take up any employment. Her only
son, the petitioner, who was studying in Class-X, was not eligible for appointment as he was minor
and was to attain majority in year 2004. In this situation, it was, thus, prayed that in view of
amended provisions of Section 5 of the Uttar Pradesh Recruitment of Dependents of Government
Servant Dying in Harness Rules, 1974 ( in short referred to as "1974 Rules") period of 5 years may
be relaxed in respect of her son who may be considered for employment and a post be kept reserved
for employment of her son under the Rules.

3. On her son completing the age of eighteen, her mother filed a representation on dated
11.08.2004 before the District Magistrate, Unnao seeking compassionate appointment of her son on
the ground that the financial and social problems occasioned by the death of her husband continued.
The said request of the petitioner's mother was declined by the order dated 08.07.2005. Being
aggrieved with this order dated 08.07.2005, the petitioner filed a writ petition whereby the
petitioner was directed by interim order dt. 21.11.2005 to file a fresh representation before the State
of U.P. for reconsideration of his case and for allowing relaxation of time limit of 5 years as per
8 All. Sudhir Kumar Mishra Vs State Of U.P. & Ors.
1001
above Rule 1974. The petitioner submitted a representation accordingly on 12/19.12.2005 to the
Secretary, Revenue Department, Government of Uttar Pradesh as well as to the District Magistrate,
Unnao. The said representation was also rejected vide order dated 28.09.2006 by the State on the
ground that it was time barred. The said order was challenged in Writ Petition No.7501 (SS) of
2005 which was dismissed by learned Single Judge hence this writ petition.

4. It is argued by learned counsel for the petitioner that there was no occasion for the State
Government to reject the application of the petitioner for compassionate appointment. Learned
counsel submitted placing reliance upon the report of lekhpal and Tehsildar, Unnao dated
01.03.2005 that the said report indicated that the financial condition of petitioner's family continued
to be poor and pitiable after death of the employee. The report is made available on the record by
the State of U.P. It is submitted that the family was living hand to mouth.

5. The report dated 01.03.2006 reveals that the land admeasuring 1.575 hectare was
recorded in the name of petitioner and his mother Vijaya Devi in the revenue records. The widow
of the deceased employee is getting the pension from the department. The deceased was survived
by his wife, three daughters and one son. The two daughters were still unmarried. The land was
barren and their agricultural income was Rs.9,000/- per year. Thus, only means of livelihood was
pension. It is submitted that the financial condition of the family continued to be critical and
pitiable. Despite the recommendation of the District Magistrate, Unnao for granting relaxation of
time beyond 5 years, the representation of the petitioner was illegally rejected by the state
government without assigning any reason or ground in the impugned order dated 28.09.2006 and
thus the order was challenged in Writ Petition No.7501 (SS) of 2005 which was dismissed, hence
this special appeal. The petitioner has relied on the judgment of this Court in Shiv Kumar Dubey
and Ors. Vs.State of U.P. and Ors. MANU/UP/0189/2014, 2014 (2)ADJ 312 in support of his case.

6. As against it, learned Additional Chief Standing Counsel vehemently argued that the
application of the petitioner's mother requesting to reserve the vacancy till the petitioner attains
majority, was not found sustainable in the absence of any such provision under 1974 Rules. It is
contended that the elder daughter of the deceased employee, who was major and unmarried during
the relevant time, could have sought benefit of seeking compassionate appointment well within the
period of limitation. The widow of the deceased employee did not avail the said opportunity. In
these circumstances, she was not entitled to the benefit of 1974 Rules and her request for relaxation
was not maintainable.

7. It is also contended that compassionate appointment under 1974 Rules is given to grant
immediate relief to the member of the family of the deceased employee in order to cope with the
sudden demise of the bread earner of the family. It is an special legislation by-passing the regular
procedure of making recruitment and, if the family of the deceased employee has been able to
maintain itself for sufficiently long time, there is no justification for by-passing the regular
recruitment process as happened in this case. Learned Single Judge has rightly observed that since
the appellant had been able to survive for sixteen years, that was indicative of a lack of immediacy.
The special appeal was liable to be dismissed.
1002 INDIAN LAW REPORTS ALLAHABAD SERIES

8. We have considered the aforesaid submissions and have gone through the records. To
appreciate the contentions, it is necessary to first examine the relevant provisions of the U.P
Recruitment of Dependent of the Rules.The expression 'deceased Government servant' is defined by
Clause (b) of Rule 2 to mean a Government servant who dies while in service. Rule 2(c) of the
Rules defines ''family'. Rule 5 of U.P Recruitment of Dependent of the Rules,1974 provides as
follows:

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-fulfils the educational qualifications prescribed for the post, is otherwise qualified for
Government service; and 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 necessary for dealing with the case in a
just and equitable manner.

Provided further that for the purpose of the aforesaid proviso, the person concerned
shall explain the reasons and give proper justification in writing regarding the delay caused in
making the application for employment after the expiry of the time limit fixed for making the
application for employment along with the necessary documents/proof in support of such delay and
the Government shall, after taking into consideration all the facts leading to such delay take the
appropriate decision.

(2) As far as possible, such an employment should be given in department in which
the deceased Government servant was employed prior to his death.

(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.

9. Rule 8 provides as under:
8 All. Sudhir Kumar Mishra Vs State Of U.P. & Ors.
1003
8. Relaxation from age and other requirements.--(1) The candidate seeking
appointment under these rules must not be less than 18 years at the time of appointment.

(2) The procedural requirements for selection, such as written test or interview by a
selection committee or any other authority shall be dispensed with, but it shall be open to the
appointing authority to interview the candidate in order to satisfy itself that the candidate will be
able to maintain the minimum standards of work and efficiency expected on the post. An
appointment under these rules shall be made against an existing vacancy only.

10. Now, it is in this background it would be appropriate to mention the principles of the
law laid down by this Court and Supreme Court on the subject. In Shiv Kumar Dubey and Ors. vs.
State of U.P. and Ors. MANU/UP/0189/2014 this Court after elaborately analysing the basic
precepts interpreted the provision of the Rules in the light of the principles of law which emerge
from the judgment of this court and Supreme Court. This court thus formulated the principles which
must govern compassionate appointment in pursuance of Dying in Harness Rules as under:

(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
1004 INDIAN LAW REPORTS ALLAHABAD SERIES

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
operation of the rule is not suspended during the minority of a member of the family.

11. In Shiv Kumar Dubey case(supra), while interpreting the provisions of Rule 5, this
Court observed that 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.

12. The Court further observed that 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.

13. It was further observed by the Court that 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 discretionary power to relax the time limit of five years
under first proviso to Rule 5 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
8 All. Sudhir Kumar Mishra Vs State Of U.P. & Ors.
1005
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.

14. In Subhash Yadav vs. State of U.P. through Secretary Education Department (Basic)
and Ors. MANU/UP/2289/2010, the Division Bench of this Court dealt with a situation where the
father of the appellant had died in harness on 8 August 1994 when the appellant was six years of
age. The appellant attained the age of majority on 5 December 2005 and made an application for
compassionate appointment. The State Government declined to accord relaxation of the period of
five years and the writ petition filed by the appellant was dismissed by a learned Single Judge who
held that since the appellant had been able to survive for sixteen years, that was indicative of a lack
of immediacy. The Division Bench held that the Government erred in rejecting the application on
the ground that there was an inordinate delay and such a blanket reason without considering
anything else would not be in conformity with the power which has been conferred on the State, to
relax the time period, which has to be exercised reasonably. Hence, the Division Bench held that
the authorities cannot reject an application "blindfold" if it had been moved after five years and
were required to apply their mind rationally, exercising the discretion in view of other factors
relating to the case.

15. In Umesh Kumar Nagpal v. State of Haryana and others, MANU/SC/0701/1994:(1994)
4 SCC 138, the Supreme Court explained the basic purpose of providing compassionate
appointment to the dependent of a deceased employee who has died in harness:

The object is not to give a member of such family a post much less a post for post
held by the deceased. What is further, mere death of an employee in harness does not entitle his
family to such source of livelihood. The Government or the public authority concerned has to
examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but
for the provision of employment, the family will not be able to meet the crisis that a job is to be
offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in
non- manual and manual categories and hence they alone can be offered on compassionate grounds,
the object being to relieve the family, of the financial destitution and to help it get over the
emergency.... For these very reasons, the compassionate employment cannot be granted after a
lapse of reasonable period which must be specified in the rules. The consideration for such
employment is not a vested right which can be exercised at any time in future. The object being to
enable the family to get over the financial crisis which it faces at the time of the death of the sole
breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of
time and after the crisis is over.

16. In Director of Education (Secondary) and another v. Pushpendra Kumar and
others, MANU/SC/0373/1998 :(1998) 5 SCC 192, the Supreme Court while granting relief of
compassionate appointment gave a direction that if no class III post is available in the institution in
1006 INDIAN LAW REPORTS ALLAHABAD SERIES

which the deceased employee was employed or in any other institution in the district, the said respondent
would be appointed against a Class IV post in the institution in which the deceased employee was employed
and a supernumerary post in class IV be created for that purpose . To quote the relevant extract:

The object underlying a provision for grant of compassionate employment is to enable the
family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner
which has left the family in penury and without any means of livelihood. Out of pure humanitarian
consideration and having regard to the fact that unless some source of livelihood is provided, the family
would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the
dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure
from the general provisions providing for appointment on the post by following a particular procedure. Since
such a provision enables appointment being made without following the said procedure, it is in the nature of
an exception to the general provisions. An exception cannot subsume the main provision to which at is an
exception and thereby nullify tine main provision by taking away completely the right conferred by the main
provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is
in the nature of an exception to the general provisions, does not unduly interfere with the right of other
persons who are eligible for appointment of seek employment against the post which would have been
available to them, but for the provision enabling appointment being made on compassionate grounds of the
dependent of a deceased employee.

17. In Sushma Gosain and others v. Union of India and others, MANU/SC/0519/1989 : (1989)
4 SCC 468 Supreme Court observed thus:

The purpose of providing appointment on compassionate ground is to mitigate the hardship
due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately
to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post
for appointment supernumerary post should be created to accommodate the applicant.

18. In Jagdish Prasad Vs. State of Bihar and Anr. MANU/SC/0996/1996 Supreme Court
observed as under:

3. It is contended for the appellant that when his father died in harness, the appellant was
minor; the compassionate circumstances continue to subsist even till date and that, therefore, the Court is
required to examine whether the appointment should be made on compassionate grounds. We are afraid, we
cannot accede to the contention. The very object of appointment of a dependent of the deceased employees
who die in harness is to relieve unexpected immediate hardship and distress cause to the family by sudden
demise of the earning member of the family. Since the death occurred way back in 1971, in which year the
appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long
thereafter. It other words, if that contention is accepted, it amounts to another mode of recruitment of the
dependent of a deceased Government servant which cannot be encouraged de hors the recruitment rules.

19. In Haryana State Electricity Board and another Vs. Hakim Singh MANU/SC/0964/1997
Supreme Court observed as under:
8 All. Sudhir Kumar Mishra Vs State Of U.P. & Ors.
1007
12. We are of the view that the High Court has erred in over stretching the scope of the
compassionate relief provided by the Board in the circulars as above. It appears that High Court would have
treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family
members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot
put forward claim as though it is a line of succession by virtue of a right of inheritance. The object of the
provisions should not be forgotten that it is to give succour to the family to tide over the sudden financial
crisis befallen the dependants on account of the untimely demise of its sole earning member.

20. In the leading case of Md. Zamil Ahmed Vs.The State of Bihar and Ors.
MANU/SC/0515/2016 , the Supreme Court upheld the validity of the compassionate appointment of the
brother of the deceased constable who left behind him illiterate wife and four minor children and disapproved
the action taken by the state of terminating his service on the ground that the Appellant being the only close
relative of the deceased could be given the appointment in the circumstances prevailing in the family. It was
observed that the action on the part of welfare state in terminating the appellant service on the ground that he
was not dependent of the deceased cant be countenanced. The state was not permitted to terminate the
services of the appellant as constable after 15 years of his appointment for the following reasons:

15. Firstly, the Appellant and wife of the deceased at the time of seeking compassionate
appointment did not conceal any fact and nor filed any false or incorrect document/declaration. On the other
hand, both of them disclosed their true family relations and conditions prevailing in the deceased family on
affidavit.

16. Secondly, the Appellant, who is the brother of the deceased, undertook to maintain the
family of the deceased in the event of his securing the compassionate appointment and he accordingly also
gave such undertaking to the State.

17. Thirdly, there was no one in the family of the deceased to claim compassionate
appointment except the Appellant who, as mentioned above, was the close relative of the deceased, i.e., real
younger brother and used to live with the deceased. He was otherwise eligible to claim such appointment
being major, educated and only male member in the family.

18. Fourthly, the Appellant after securing the employment throughout maintained the
family of the deceased in all respects for the last more than 15 years and he is continuing to do so.

19. In the light of aforementioned reasons, which rightly persuaded the State to grant
compassionate appointment to the Appellant, we do not find any justification on the part of the State to dig
out the Appellant's case after 15 years of his appointment and terminate his services on the ground that as per
the State policy, the Appellant did not fall within the definition of the expression "dependent of deceased" to
claim compassionate appointment.

20. The fact that the Appellant was younger brother of the deceased was within the
knowledge of the State. Similarly, the State was aware that the brother does not fall within the definition of
1008 INDIAN LAW REPORTS ALLAHABAD SERIES

dependent at the relevant time and still the State authorities obtained the undertaking from the Appellant that
he would maintain the family of the deceased once given the appointment.

21.In our considered view, the aforesaid facts would clearly show that it was a conscious
decision taken by the State for giving an appointment to the Appellant being the younger brother of deceased
constable for the benefit of the family members of the deceased who were facing financial hardship due to
sudden demise of their bread earner. In our view, it was a right decision taken by the State as a welfare
state to help the family of the deceased at the time of need of the family.

21. In the instant case, the petitioner submitted that when his father died he was only 4 years old and
his mother informed the department that she would make application in prescribed from only when he
attained majority. The department negatived the representation in this matter taking stand that the application
was not made within prescribed period. However, the petitioner's request for compassionate appointment was
made soon after appellant attained majority. Under Rule 5 the time limit within which the dependant of the
deceased employee is to be accommodated is fixed as five year. This period can be extended under proviso to
Rule 5 where burden of proving the fact that compassionate circumstances continued to exist even till date
was on the petitioner himself which he has successfully discharged in this case. There is sufficient evidence
of the petitioner having aged and ailing mother, two unmarried sisters, the family having pension as the only
source of livelihood, the agricultural land being barren causing nugatory income of about 9000/- per year,
which appeared quite insufficient to enable the family to get over the financial crisis which is being faced by
the family after the death of his father.

22. On the basis of objective considerations founded on the disclosures made by the petitioner in this
case for compassionate appointment and having considered the reasons for the delay, we are of the opinion
that undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused to the
petitioner and his family 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 of the case. In view the income of the family, its financial condition, the extent of
dependency and marital status of its members, its liabilities, the terminal benefits received by the family; the
age, together with the nugatory income from any other sources in this case, we are of the view that the family
continues to suffer financial distress and hardship occasioned by the death of the bread winner. Considering
the penurious condition of the family, it appears to be one of the rarest of rare cases where due to exceptional
circumstances the family needs the extraordinary remedy to elate the condition of family. It would be
appropriate to deal with the case of the petitioner in a just and equitable manner.

23. In the result, we allow the appeal and in reversal of the order of the Learned Single Judge of this
Court, we direct respondent No. 3 to consider the case of Sudhir Kumar- appellant for compassionate
appointment within two months from the date on which the certified copy of this order is made available to
the respondent No.3 by petitioner along with his representation.
--------
8 All. Chhotey Shah Vs State
1009
(2016) 8 ILRA 1009
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Criminal Appeal No.- 196 Of 1983

Chhotey Shah ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
V. Saran

Counsel for the Respondent:
A.G.A.

The Division Bench allowed the 33-year-old appeal against life imprisonment under Section 396 IPC for dacoity
(with murder), acquitting sole surviving appellant Chhotey Shah due to unreliable identification in pitch-dark
conditions, delayed test identification parade (100+ days post-incident), no recovery of looted property linking
him, and flawed investigation (fabricated recovery from co-accused, inconsistencies in site plan and witness
accounts).

Appeal allowed; conviction & life sentence set aside, appellant acquitted u/s 396 IPC

Held: Para-

Case Law discussed:

Iqbal Vs. State of U.P.(2015) 6 SCC 623, Budh Sen Vs. State of U.P.(1970) 2 SC C 128,
Soni Vs. State of U.P. (1982)3 SCC 368 and Subhash and Shiv Shankar Vs.State of U.P. (1987) 3
SCC 331,
Ram Babu Vs. State of U.P., (2010) 5 SCC 63,Nirmal Pasi Vs. State of Bihar, 2002 (6) JT 28,
Budhsen Vs. State of U.P. and Others, AIR 1970 SC 1321 and that of State of Maharashra Vs.
Sukhdeo Singh, AIR 1992 SC 2100,

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This appeal has been preferred by the accused-appellants against the judgment and order
dated 15.12.1982 passed by the Special Judge, Badaun in Sessions Trial No. 414 of 1981, under
Sections 396/412 IPC, Police Station Dataganj, District Badaun whereby the accused appellants
have been convicted and sentenced to undergo imprisonment for life for the offence punishable
under Section 396 IPC.