Pradeep Kumar Singh Baghel, J. - (1.) THE petitioner is aggrieved by the order of the State Government dated 15.10.2007 whereby his application for compassionate appointment in Civil Police Department has been rejected. By means of present writ petition he has sought relief to quash that order dated 15.10.2007 passed by respondent No. 2 Special Secretary (Home) U.P. and issue direction to appoint him on compassionate grounds.
(2.) THE short facts leading to the present petition are that the petitioner's father Kunwar Pal Singh Chauhan was appointed in U.P. Police in April, 1976. While discharging his duty on 9.1.1998 during the communal right he was shot dead by unsocial elements. The petitioner's father died leaving behind petitioner's mother who was 54 years old and three minor sons. There is nothing on the record to indicate that the petitioner's family had any other source of livelihood. The petitioner moved an application on 17.12.2003 for appointment on compassionate ground i.e. about few months after five years period. His application for appointment was forwarded by the S.S.P. Kanpur vide communication dated 28.2.2006 to the D.I.G. Establishment, U.P. Police Head Quarter, Allahabad for a favorable action. Since the application was beyond 5 years the D.I.G. vide communication dated 25.7.2007 forwarded the proposal sent by the S.S.P. to the State Government for condoning the delay. However, in the said communication the D.I.G. has mentioned the date of the application of the petitioner to be 15.11.2006 i.e. after seven years of the death of his father. On the basis of the aforesaid recommendation and the letter of the D.I.G. the State Government by its order dated 15.10.2007 has rejected the application of the petitioner on two grounds namely that wife of the deceased had not moved any application and no reason has been mentioned for the delay. The State Government has assumed that the family did not need any job and for the said reason the application of the petitioner was rejected. A copy of the said order has been challenged in the present writ petition and has been enclosed as Annexure -13 to the writ petition. The grounds mentioned in the impugned order are totally incorrect and it appears that the State Government has only taken into consideration the letter sent by the D.I.G. wherein the date of the application of the petitioner has been wrongly mentioned to be 15.11.2005. In fact from their own document i.e. communication of the S.S.P. dated 6.6.2005 (Annexure -3 to the writ petition) it is evident that the petitioner had made his application on 17.12.2003 and not on 15.11.2005. Thus there is manifest error committed by the State Government while calculating the period in terms of the Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974.
(3.) HAVING heard Sri G.K.Singh learned counsel for the petitioner and learned Standing Counsel, I am of the view that the reasons mentioned by the State Government are totally incorrect and erroneous in as much as firstly the application has been moved by the petitioner on 17.12.2003 and not on 15.11.2005 and secondly the reason mentioned in the impugned order that the deceased wife had not moved an application is also misconceived. A Division Bench of this Court in Special Appeal No. 276 of 2003 (Vivek Yadav vs. State of U.P. and others) reported in 2010 (7) ADJ 1 has dealt similar facts. In the said case the petitioner's mother was illiterate house wife and his application was rejected on the ground that his mother did not made application and the application was also beyond five years time. The relevant part of the judgment is being quoted herein below: In the instant case, as averred by the appellant, hsi 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 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 subordinate 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. 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 b y 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.;