Sanjay Misra. J. - (1.) The petitioner is son of late. Jagdish Chandra Sharma who died on 7.9.1981 while working as a constable in the U.P. Civil Police Department at District Tehri Garhwal. The petitioner is elder of the two children left behind by the deceased constable the family consisting of widow and two sons.. The petitioner was aged two years in 1981 and the mother of the petitioner is alleged to have made two applications dated 10.10.1981 and 5.5.1982, (a copy whereof has been filed as Annexure-1 to the writ petition) for being given the benefits of pension and other unpaid amounts and also claimed for appointment on compassionate grounds. Till the year 1997 the issue of payment of pension had not been finally decided and the correspondence inter-se between the department continued. By an application the petitioner's mother claimed that in the meantime her son (petitioner) had attained the age of majority therefore, he should be considered for being given compassionate appointment under the provisions of U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules 1974. Upon the said application the petitioner was called and medically examined wherein it was found that the petitioner was fit and there was no disqualification in the petitioner for employment in the department. True copies of the form and medical certificate have been filed as Annexure -8 to the writ petition. The said certificate is dated 25.7.1998 issued by the Chief Medical Officer Udham Singh Nagar. The Superintendent of Police (Personnel) Allahabad U.P. by his letter referred the matter to the State Government for approval in view of the fact that under the Rules Limitation of five years has been provided for making application for compassionate appointment therefore, the delay which has been caused in the present case being of nearly sixteen years was to be condoned by the State Government in view of the proviso to rule 5 of the said Rules. The state Government appears to have rejected the proposal and such intimation was given to the petitioner by the respondent no.2 by his letter dated 29.9.1099. True copy whereof has been filed as Annexure-11 to the writ petition. This letter indicates that the proposal was rejected by the State Government by the order dated 30.6.1999. In the communication dated 29.9.1999 and the letter dated 20.11.1999 ,(Annexure-11 B) it has been stated that the State Government has refused to condone the delay in filing the application for compassionate appointment The petitioner has averred that by the Government Order dated 19th August 1997, the State Government has condoned the delay in making application for compassionate appointment in the case of 106 dependants of government servant such letter along with list of the 106 dependants has been filed as Annexure-12 to the writ petition. The petitioner submits that he fulfills all conditions for. being given compassionate appointment and he has therefore, prayed for suitable order to quash the impugned order dated 30.6.1999 passed by the State Government.. The petitioner has also prayed for issue of writ of mandamus to command the respondents to give appointment on compassionate grounds to the petitioner as per his qualifications.
(2.) A counter affidavit has been filed on behalf of the respondents no. 1,2, and 3. The fact about the death of the petitioner's father and the age of the petitioner at that time has been admitted by the respondents. However, the respondent has disputed the letter alleged to have been sent by the petitioner's mother for compassionate appointment on 10.10.1981 but it has admitted receiving the letter dated 5.5.1982 sent by the petitioner's mother. It has been averred in the counter affidavit that the application for compassionate appointment of the petitioner was received in the year 1997 and that the petitioner was medically examined and found fit. The respondents' case is that since the State Government has not condoned the delay under the proviso to Rule 5, the petitioner is not entitled for such appointment. With respect to condonation of delay in the case of 106 other dependants of government servants it has been averred that the State Government considered each and every case and when the circumstances were found to be such that delay ought to have been condoned, the State Government condoned the delay in the case of 106 dependants of Government Servants. Apart from contesting the claim of the petitioner on the ground of delay, respondents have not brought about any other grounds.
(3.) The petitioner has in the rejoinder affidavit re-iterated that his deceased father has not left behind any moveable and immoveable property and the only source of the income of the family was salary drawn by his deceased father. It has further been stated that the object of the rule is to provide compassionate appointment to mitigate the hardship which the dependants of the government servant would suffer due to loss of the bread earner of the family.;