# Vivek Yadav / v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 654
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-03
- **Case number:** Special Appeal No. 276 of 2003
- **Bench:** Ferdino Inacio Rebello, C.J. A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-yadav-v-state-of-u-p-and-others-41673
- **Pages:** 6

## Headnote

Servants Dying-in-Harness Rules 1974Rule-5- Application for compassionate
appointment
by
minor-Rejected
on
ground of time barred beyond statutory
period of 5 years-although application
moved by the petitioner-appellant within
5 years on achieving the age of majorityheld-being beneficial piece of legislationconfers
power
to
relax
the
delayapplication must by competent person a
minor is no competent unless attain age
of 18 year- the authority as well as
Single Judge-can not ignore this aspect.

Held: Para 8

The power to relax itself contemplates
that in a particular case, the matter has
to be dealt with in a just and equitable
manner. In other words, the test to be
applied is
does the
family of
the
deceased continue to suffer financial
distress and hardship occasioned by the
death of the breadwinner so as to relax
the period within which the application
could be made. These are matters of
fact, which the competent authority
would have to consider. In the instant
case, what we find is that the application
was rejected merely because it was
beyond the time prescribed.
Case law discussed:
(1994) 4 SCC 138, [(2009) 13 SCC 122],
[(1998) 9 SCC 485], [(1996) 8 SCC 23, [2000
(2) UPLBEC 1694].

(Delivered By Hon'ble Ferdino Inacio
Rebello, C.J.)

## Text

654 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2010

BEFORE
THE HON'BLE FERDINO INACIO REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No. 276 of 2003

Vivek Yadav ...Petitioner/Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vinay K. Gupta

Counsel for the Respondents:
C.S.C.

U.P. Recruitement of Dependent of Govt.
Servants Dying-in-Harness Rules 1974Rule-5- Application for compassionate
appointment
by
minor-Rejected
on
ground of time barred beyond statutory
period of 5 years-although application
moved by the petitioner-appellant within
5 years on achieving the age of majorityheld-being beneficial piece of legislationconfers
power
to
relax
the
delayapplication must by competent person a
minor is no competent unless attain age
of 18 year- the authority as well as
Single Judge-can not ignore this aspect.

Held: Para 8

The power to relax itself contemplates
that in a particular case, the matter has
to be dealt with in a just and equitable
manner. In other words, the test to be
applied is
does the
family of
the
deceased continue to suffer financial
distress and hardship occasioned by the
death of the breadwinner so as to relax
the period within which the application
could be made. These are matters of
fact, which the competent authority
would have to consider. In the instant
case, what we find is that the application
was rejected merely because it was
beyond the time prescribed.
Case law discussed:
(1994) 4 SCC 138, [(2009) 13 SCC 122],
[(1998) 9 SCC 485], [(1996) 8 SCC 23, [2000
(2) UPLBEC 1694].

(Delivered By Hon'ble Ferdino Inacio
Rebello, C.J.)

1. This special appeal is preferred by
the appellant, who sought appointment on
compassionate basis on attaining majority
after the death of his father on 26th of
May, 1986. Late father of the appellant
was working on the post of Assistant
Agriculture Inspector in Rajkiya Krishi
Beej Bhandar, District Rae Bareli. On
account of the death of his father, who
was the sole bread earner, the entire
family is facing financial crunch and it
became impossible for the family to make
both ends meet. The family of the
deceased had no immovable property and
they are living in the rented house and
there was nobody to support the family.
The mother of the appellant was illiterate
and was not aware of the benefits and
thus,
did
not
claim
compassionate
appointment under the State Rules, which
are known as U.P. Recruitment of
Dependants of Government Servants
Dying-in-Harness
Rules,
1974
(hereinafter referred to as 'the Rules'). The
appellant was born on 2nd of February,
1984 and on completion of 18 years of
age, he preferred a representation dated
4th of August, 2001 before the District
Agriculture Officer requesting for his
appointment on compassionate basis as
the
financial
and
social
problems
occasioned by the death of his father
continue. The family of the appellant
consists of his mother, three sisters and
another brother. The mother of the
appellant also gave no objection on 29th
2 All] Vivek Yadav V. State of U.P. and others
655
of August, 2001. Though the authorities
below forwarded and recommended the
case of the appellant for relaxing the
condition to make the application in time,
the same was not acted upon. Thereafter
the
appellant
finally
made
a
representation
to
the
Minister
of
Agriculture, to which he received an order
issued on 28th of February, 2002,
rejecting the representation on the ground
that the representation made by the
appellant
for
appointment
on
compassionate basis was time barred and
there was no justification for granting
compassionate appointment to him. The
said letter was served upon the appellant
only on 22nd of October, 2002.

The appellant, thereafter preferred a
writ petition before this Court. A learned
Judge of this Court, vide his order, which
is subject matter of the present appeal,
was pleased to hold that the writ petition
lacks merit and is dismissed. The stand of
the State-respondents is that the writ
petitioner's application was barred by time
and, therefore, they refused to extend the
benefit of relaxation on the ground that
there is no justification for relaxation.

2. The contention on behalf of the
appellant is that no reason had been
assigned for rejecting his application. The
learned Judge was pleased to hold that
before such an argument could be
advanced, the appellant-writ petitioner
should have demonstrated that any right
of the appellant-writ petitioner is affected.
The learned Judge further observed that
since the appellant-writ petitioner applied
beyond the limitation prescribed by the
Rules, which was five years, he could not
establish his right and once the right is not
established,
he
cannot
invoke
the
discretion of the State for relaxation, in
the event of his claim being time barred.
It is this matter, which the subject matter
of the present appeal.

3.

The
relevant
rule
for
consideration
of
appointment
on
compassionate basis is rule 5 of the Rules,
1974, which reads 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-

(i)
fulfils
the
educational
qualifications prescribed for the post,

(ii)
is
otherwise
qualified
for
Government service, and,

(iii) makes the application for
employment within five years from the
date of the death of the Government
servant:

Provided
that
where
the
State
Government is satisfied that the time-limit
fixed for making the application for
employment causes undue hardship in any
656 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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.

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

(3) Each appointment under sub-rule
(1) should be under the condition that the
person appointed under sub-rule (1) shall
upkeep those other family members of the
deceased Government servant who are
incapable for their own maintenance and
were dependant of the abovesaid deceased
Government servant immediately before
his death."

4. A perusal of Rule 5 would show
that an application for employment on
compassionate basis is to be made within
five years from the date of death of the
deceased Government servant. There is a
proviso conferring power upon the
Government for relaxing the time-limit
fixed for making such application, where
the Government is of the opinion that it
causes undue hardship and for dealing
with the case in a just and equitable
manner. Reading of this rule would
demonstrate that the application must be
by a competent person, who is competent
to make it. A minor, therefore, could not
have made application. The time-limit for
an application contemplated by the rule,
therefore, could only be read to mean 'by
a competent person', in other words, who
has attained the age of majority. In a case,
where the applicant is minor, it would not
be possible for the minor to make an
application for various reasons including
that he is minor and as such he cannot be
appointed to a post in the Government.
Rule 5, therefore, will have to be read in
such manner that it gives effect to the
policy of the Government, which is to
provide employment to a member of the
family of a government employee, who
dies in harness, so as to mitigate the
hardship. The issue whether the family of
the deceased over long passage of time
continues to face the hardship, would be
examined on the merits of the claim. Rule
8 of the Rules, 1974 itself contemplates
that a candidate seeking appointment
under the Rules must not be less than 18
years of age at the time of appointment. In
the instant case, as averred by the
appellant, his mother was uneducated or
illiterate, he was a minor though the elder
son
and
there
were
elder
sisters.
Therefore, in such cases, considering the
object of the Rules, the proviso to Rule 5
must normally be exercised, as for the
purpose of dealing with the cases in a just
and equitable manner. In exercising such
discretion,
no
doubt,
the
authority
exercising the discretion will examine the
record before him.

5. The law on the subject of
compassionate appointment is no longer
res-integra. The claim for appointment on
compassionate basis is on the premise that
such
person
or
his
family
were
dependants on the earning of the deceased
employee. This claim is considered
reasonable, though otherwise it could be
violative of Articles 14 and 16 of the
Constitution of India. The reason being
that the family suffers a sudden crisis on
the death of employee, who had served
the State and died in service. In Umesh
Kumar Nagpal v. State of Haryana and
Ors., (1994) 4 SCC 138, the Supreme
Court was pleased to observe as under:-
2 All] Vivek Yadav V. State of U.P. and others
657

"The appointment on compassionate
ground cannot be a source of recruitment.
It is merely an exception to the
requirement of law keeping in view the
fact of the death of employee while in
service leaving his family without any
means of livelihood. In such cases, the
object is to enable the family to get over
sudden
financial
crisis.
Such
appointments on compassionate ground,
therefore, have to be made in accordance
with Rules, Regulations or administrative
instructions taking into consideration the
financial condition of the family of the
deceased. This favourable treatment to the
dependant of the deceased employee must
have clear nexus with the object sought to
be achieved thereby, i.e. relief against
destitution. At the same time, however, it
should not be forgotten that as against the
destitute family of the deceased, there are
millions and millions of other families
which are equally, if not more, destitute.
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 expectation,
and the change in the status and affairs of
the family engendered by the erstwhile
employment,
which
are
suddenly
upturned."

6. The law on the subject has been
reiterated in a recent decision of the
Supreme
Court
in
M/s
Eastern
Coalfields Ltd. V. Anil Badyakar &
Ors. [(2009) 13 SCC 122]. The law,
therefore, as declared is that the object of
compassionate appointment is to enable a
family of the deceased employee who are
in penury to tide over the sudden financial
crisis and not to provide employment.
Mere death of an employee therefrom by
itself does not entitle his family to
compassionate appointment. At the same
time, the Supreme Court has observed in
S.Mohan V.Government of T.N. [(1998)
9 SCC 485] that the compassionate
employment cannot be claimed and
offered whatever the lapse of time and
after the crisis is over. The Supreme Court
in Haryana State Electricity Board V.
Naresh Tanwar [(1996) 8 SCC 23,
observed as follows:-

"It has been indicated in the decision
of
Umesh
Kumar
Nagpal
that
compassionate appointment cannot be
granted after a long lapse of reasonable
period
and
the
very
purpose
of
compassionate
appointment,
as
an
exception to the general rule of open
recruitment, is intended to meet the
immediate
financial
problem
being
suffered by the members of the family of
the deceased employee. In the other
decision of this Court in Jagdish Prasad
case, it has been also indicated that the
very object of appointment of dependent
of deceased employee who died in
harness is to relieve immediate hardship
and distress caused to the family by
sudden demise of the earning member of
the family and such consideration cannot
be kept binding for years.

7. This Court in several decisions
has taken note of the fact of an application
being made by a member of the family on
attaining majority. In Manoj Kumar
Saxena Vs. District Magistrate, Bareilly
and Others [2000 (2) UPLBEC 1694],
the learned Judge of this Court considered
the various other judgments holding that
when an application is being moved for
appointment on compassionate basis of a
member of the family on attaining
majority, because he was minor at the
time of the death of his father, it cannot be
said that there was delay in moving the
658 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
said application by the petitioner for
consideration.

In our opinion, that really may not be
a correct reading of the rule as that would
contemplate that the rule would stand
suspended till such time a minor attains
majority and thereafter the minor within 5
years on attaining majority could make
application. No provision whether it be
primary or sub-ordinate legislation must
be read even if it be a beneficial piece of
legislation which has the effect of adding
words against the expression of language
of the provision. The proviso, in our
opinion, which confers power to relax the
delay in making an application within five
years, also must be read to include
consideration of an application even after
expiry of 5 years if the applicant was a
minor at the time of death of the deceased
employee and makes an application
within reasonable time of attaining
majority.

8. The power to relax itself
contemplates that in a particular case, the
matter has to be dealt with in a just and
equitable manner. In other words, the test
to be applied is does the family of the
deceased continue to suffer financial
distress and hardship occasioned by the
death of the breadwinner so as to relax the
period within which the application could
be made. These are matters of fact, which
the competent authority would have to
consider. In the instant case, what we find
is that the application was rejected merely
because
it
was
beyond
the
time
prescribed.

9. The learned Judge, while
dismissing the writ petition was pleased to
hold that the appellant-writ petitioner was
unable to establish his right, therefore, he
was not entitled to invoke the extraordinary jurisdiction of this Court. The
right of compassionate appointment does
not confer a right, but it does give rise to
the legitimate expectation in a person
covered by the Rule that his application
should be considered, if otherwise he
meets with the requirement. Once that be
the case, an applicant whose claim is
rejected can invoke the extra-ordinary
jurisdiction of this Court.

10. In our opinion, therefore, the
application moved by the appellant was
maintainable. No purpose at this stage
will be served by remitting the matter
back to the authority for re-consideration.
The record would show that the appellant
had made out a case for invocation of the
power in the authority to waive the time
for
moving
the
application.
That,
however,
does
not
mean
that
the
appellant, as a matter of course, should be
entitled
for
being
considered
for
employment
under
the
Rules.
The
competent authority will have to be
satisfied on the basis of the materials
before it that the appellant's case is a fit
one
for
compassionate
appointment,
which would include consideration of the
financial status of the family of the
appellant since the time of death of his
father till date and whether they continue
to exist in penury or financial distress.

11. We may also observe in parting
that in such matters, ordinarily the appeals
should be disposed of at the threshold
itself as they brook no delay. The
impugned judgement of the learned Judge
is of the year 2003. The appeal is now
heard by this Bench in the year 2010,
after seven years. It is no doubt true
because of the docket explosion, Courts
are hard pressed for time. Considering the
2 All] Sartaj and another V. State of U.P. and others
659
issue which is penury or financial
hardship, ordinarily the matter must be
dealt with at the earliest. The authorities
also who have to consider the application,
must
complete
this
exercise
of
consideration within six months of the
application being received.

12. The appeal is accordingly,
allowed. The impugned judgement of the
learned Judge dated 5th of February, 2003
and the order dated 28th February, 2002
are set aside. The competent authority, on
a copy of this judgement being served on
it, to take a decision in accordance with
law at any rate not later than eight weeks
from today and communicate the same to
the appellant. It will be open to the
competent authority to call for additional
details considering the long passage of
time. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE YOGENDRA KUMAR SANGAL, J.

Habeas Corpus No. 383 of 2010

Sartaj and another

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Akhter Abbas

Counsel for the Respondent:
Advocate General
G.A.

Constitution of India Art. 226- Habeas
Corpus writ-Petitioner alongwith his wife
detained in Police Station inspite of stay of
arrest-detention of 5 days-Police tried to
justified its stand in garb of medical check
up-held-unjustified in absence of statutory
provisions court issued guide lines-strictly
prohibited the detention at Police station
for more than 24 hours for medical checkup-govt. Directed to take follow up action
by forthwith.

Held: Para 48 & 50

Thus, for the police, if it is permitted to
keep a witness in the premises of police
station awaiting medical opinion, then so
far as the reputation and dignity of the
person concerned in the eyes of common
citizen is concerned, undoubtedly, a long
stay in the premises of the police station
shall tarnish the image and reputation of
such person. Of course, in case there
would
have
been
some
statutory
provisions to deal with such situation
validating the police action, there may be
valid ground for detention or stay of a
witness in the eyes of common citizen but
in absence of any statutory provision, such
action shall adversely affect the dignity of
such person in peoples' eye.

In view of above, we allow the writ
petition and issue a writ in the nature of
mandamus commanding the state of U.P.
as under:

1. No person who is a witness in a case,
female or male shall be permitted to reside
or be detained in the police station
awaiting medical check-up or medical
report or for any other reason for more
than 24 hours. For medical examination,
such person may be permitted to stay for
limited period to the maximum of three
days in the hospital/Primary Health Centre
or other statutory home or shelters. If
necessary, appropriate police protection
may be provided during such stay at a
place other than police station.

2. The Government shall ensure that the
medical examination of the prosecutrix or
a witness or the person involved in a
criminal case be done on the same day or
within the maximum period of 24 hours
and the hospital/Primary Health Centre