S. N. Srivastava, J. - (1.) -Petitioner who had applied for appointment under Dying-in-harness Rules, has instituted the instant petition impugning the order dated 29th March, 2001 thereby rejecting his application for such appointment on ground of being barred by time.
(2.) A brief resume of necessary facts is that the father of the petitioner who was serving as Conductor in Uttar Pradesh State Road Transport Corporation, died in harness on 25.11.1990. He was survived by petitioner who was then eight years old and daughter namely Smt. Archana. The mother of the petitioner predeceased her husband and both the siblings were reared up by their cousin brother Rakesh Pal Singh. According to further averments in the writ petition, the petitioner passed his High School examination in the year 2000 and after attaining majority on 20.7.2000, he preferred representation before the respondent No. 2 seeking appointment under Dying-in-Harness Rules. According to further averments, the respondent No. 2 endorsed copy of letter bearing No. 139, dated 28.2.2001 to the petitioner from a perusal of which it would surface that the petitioner was assured by the then Regional Manager U.P.S.R.T.C. that he would be given employment after he had attained majority. Thereafter, it would further transpire from the averments made in the writ petition, the petitioner approached the Minister of Transportation U.P.S.R.T.C. who directed the respondent No. 1 to do the needful in the matter. Ultimately, the respondent No. 2 passed the impugned order dated 29.3.2001 by which the representation of the petitioner was rejected on ground that his claim was barred by time. It is in the above context that the present petition has been filed by the petitioner for the relief. I have heard learned counsel for the parties and perused the materials on record. It is stated across the bar by the learned counsel for the petitioner that mother of the petitioner's having predeceased the petitioners' father, there was none in the family at the relevant time to claim appointment under Dying-in-Harness Rules and therefore, the petitioner was rightly assured of appointment by the then Regional Manager and the petitioner was sustaining on legitimate expectation that he would be given appointment after he attains majority. The learned counsel also referred to the relevant rule which, proceeds the submission, envisages making of application within five years and in exceptional cases, it also prescribes relaxation of the prescribed period. Referring to the above Rules, the learned counsel submitted that the authorities erred in rejecting the application without delving into the aspect of delay in making application. Per Contra, learned counsel for the opposite parties tried to prop up the order urging that appointment under Dying-in-Harness Rules in U. P. State Road Transport Corporation has been interdicted since June, 2001 excepting for short period during which the ban was lifted. He further contended that Amendment of 1997 cannot be taken aid of as it could not be applied retrospectively in the matter of petitioner. It was further contended that assurance given by the Regional Manager would operate in void as the Regional Manager was wholly incompetent to extend any assurance though it was conceded by the learned counsel that he was competent to give appointment under Dying-in-Harness Rules. The question that emerges for consideration in the above context is whether there was any exceptional circumstance warranting relaxation of the period by the authority concerned and whether the authority was justified in rejecting the application as time barred in the facts and circumstances of the case.
(3.) IT bears no dispute that at the time of death of his father, conductor in the U.P.S.R.T.C., the petitioner was minor then aged 8 years and his mother having predeceased his father, there was none in the family to claim appointment on compassionate ground. Further from a perusal of the letter of Regional Manager contained in Annexure-5 to the writ petition, it is explicit that the then Regional Manager had assured appointment to the petitioner later on after he attains majority in the unusual circumstances. IT also bears no repudiation that the petitioner was brought up by his cousin and he has no resources to fall back upon. IT thus leaves no manner of doubt that the petitioner was a victim of unusual circumstances and the then Regional Manager U.P.S.R.T.C. showed compassion taking into reckoning unusual cut inflicted by Destiny upon him. From a perusal of proviso (1) to Rule 5 of the Dying-in-Harness Rules it would crystallize that competent authority could entertain application by relaxing the prescribed time in exceptional cases in order to do justice to the party in equitable manner. It leaves no manner of doubt that the authority was empowered to relax the period in exceptional circumstances.;