IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 263 of 2008 Executive Engineer and others ……… Appellants. Versus Anand Singh Bisht .……. Respondent. Mr. B.K. Gupta, Advocate for the appellants. Mr. M.S. Chauhan, Advocate for the respondent. Date of decision: 19-04-2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble V.K. Bist, J. J.S. KHEHAR, C. J. (Oral) The respondent’s father, Sri Balwant Singh Bisht, was an employee of the Irrigation Department. He was holding the post of mate. He died in harness on 09.08.1976. At the time of the death of his father, the respondent was merely 5 years old. The respondent attained the age of majority in 1989. For the first time the respondent applied for appointment on compassionate grounds under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the 1974 Rules) on 10.07.1991. It is the case of the respondent, that he submitted a number of applications/ representations, thereafter as well, including a representation for appointment on compassionate grounds in the year 1998. 2. Since no decision was being taken by the appellants in connection with the claim raised by the respondent for appointment on compassionate grounds, he approached this Court by filing Writ Petition (S/B) No. 160 of 2001. The aforesaid writ petition was disposed of by this Court vide order dated 03.03.2001. This Court directed the respondents to consider the claim of the respondent for appointment in terms of the policy, instructions/rules prevalent in connection with the same. Needless to mention, that the instant writ petition was filed by the respondent 25 years after the date of the death of his father (on 09.08.1976). 2 3. In compliance of the directions issued by this Court in Writ Petition (S/B) No. 160 of 2001, the appellants passed an order dated 23.08.2001 declining the claim of the respondent for appointment on compassionate grounds. The respondent then filed a second writ petition, i.e. Writ Petition (S/B) No. 1826 of 2002, wherein he impugned the order dated 23.08.2001 (by which he was declined appointment on compassionate grounds). The aforesaid writ petition was disposed of by a learned Single Judge of this Court vide an order dated 01.05.2008. It would be relevant to mention, that the respondent had been declined appointment on compassionate grounds vide order dated 23.08.2001, on account of the fact, that the claim for appointment on compassionate grounds had been made by the respondent many years after the death of his father. In so far as the issue of delay is concerned, the learned Single Judge, while disposing of Writ Petition (S/B) No. 1826 of 2002, recorded the following conclusion in paragraph 3 of the order dated 01.05.2008. “3. Undisputedly the petitioner was minor at the time of death of his father. After attaining the age of majority, application was moved on behalf of the petitioner for compassionate appointment in the year 1991. His case for appointment was rejected only on one ground that his application for appointment was belated. The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 contains provision empowering the State Government/ Appointing Authority to condone the delay in cases where the authority is satisfied. Here in the present case, the delay for not making application by the petitioner within the prescribed time was due to underage and after attaining the age of majority, the application was made by the petitioner. It was sufficient reason to condone the delay.” A perusal of the determination rendered by the learned Single Judge reveals, that this Court exonerated the delay preceding the attainment of the age of majority. In sum and substance, the delay from 09.08.1976 (the date of the death of the respondent’s father) till 1989 (the date when the respondent attained the age of majority) was condoned. The learned Single Judge, however, did not express any opinion in respect of the further delay for a period of about two years, in as much as the respondent did not move any claim for appointment on compassionate grounds, even though he had attained the age of majority in 1989, till 10.07.1991 (when the first application was made by the respondent for appointment on compassionate grounds). Although no decision was taken thereon by the appellants, and although, according to the submissions advanced by the 3 learned counsel for the respondent, he had been making repeated representations for appointment on compassionate grounds, he did not approach this Court till 2001, when he filed Writ Petition (S/B) No. 160 of 2001. In some and substance, the respondent had approached this Court, claiming for appointment on compassionate grounds, 25 years after the death of his father (on 09.08.1976). 4. Through the present special appeal the appellants have reiterated the determination rendered by them in the impugned order dated 23.08.2001, by asserting, that the claim for appointment on compassionate grounds at the hands of the respondent being highly belated, could not be accepted. In so far as the instant issue is concerned, learned counsel for the appellants invited our attention to the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. It is pointed out, that at the time of the death of the respondent’s father, as also at the time when the respondent attained the age of majority (in 1989), the 1974 Rules were applicable. As per the unamended rules, appointment on compassionate grounds could have been claimed by a dependent of an employee who had died in harness “without any delay”. It is submitted, that the aforesaid provision was applicable to the facts and circumstances of the respondent, and as such, under the statutory rules of 1974, the respondent was rightfully declined for appointment on compassionate grounds vide order dated 23.08.2001. 5. As against the submissions advanced by the learned counsel for the appellants, learned counsel for the respondent has placed reliance on Rule 5 of the 1974 Rules as amended vide notification dated 16.04.1993. It is the submission of the learned counsel for the respondent, that vide the aforesaid amendment made in 1993, the claim for appointment on compassionate grounds could be made within five years. It is further pointed out, that the period of five years could be extended (as per the amendment) unlimitedly in a suitable case. The pointed submission of the learned counsel for the respondent (on the basis of the amendment effected vide notification dated 16.04.1993), is that, there was no limit depicted in the unamended provision, and the limit recorded in the amendment made on 16.04.1993, should have been invoked in favour of the respondent, as he was a minor at the time of death of his father. It is 4 submitted, that the time during which the respondent remained ineligible for appointment should be overlooked. 6. We have considered the rival submissions advanced by the learned counsel for the parties. Having considered their submissions (noticed in the foregoing two paragraphs), we are of the view, that it is not possible for us to accept the contention of the learned counsel for the respondent. In the unamended 1974 Rules, a claim for appointment on compassionate grounds had to be made “without any delay”, after the death of the bread earner in harness. The position, regulating the claim of the respondent has to be determined with reference to the date when his father died (on 09.08.1976) or when the respondent attained the age of majority (in 1989) or when the respondent addressed his representation claiming appointment on compassionate grounds (on 10.07.1991). The respondent, however, desires to support his claim on the basis of the amendment of Rule 5 of the 1974 Rules, through a notification dated 16.04.1993. Since the aforesaid notification had not yet been issued, when the respondent staked his claim for appointment on compassionate grounds, we have no hesitation to hold, that the same cannot be relied upon by the respondent. The notification, which was issued on 16.04.1993, permitted applications/ representations within a period of five years from the date of the death of the breadwinner in harness. As a matter of abundant caution, we shall endeavour to consider the claim of the respondent even under the amended provision. Appointment on compassionate grounds is for the purposes of eradicating extreme financial hardship suffered by a dependent on account of the sudden and untimely death of the sole bread earner in harness. The claim of the respondent in the present controversy cannot be considered to be such a claim. Not only the father of the respondent died as far back as in 1976, after the death of his father, his widowed mother never raised any claim for appointment on compassionate grounds. The pleadings of the instant case reveal, that the respondent’s elder brother applied for appointment on compassionate grounds, but his claim was declined. Thereafter, there could hardly have been any justification for the respondent to claim appointment on compassionate grounds. Be that as it may, the respondent moved an application for appointment on compassionate grounds for the first time 5 on 10.07.1991, although he had attained the age of majority in 1989. There are no pleadings, whatsoever, on the record of the instant case which reveal, that the family of the father of the respondent suffered extreme financial hardship after his death. In any case, before the respondent approached this Court in 2001, 25 years had passed by after the death of his father. Even if there had been any justification in the claim of the respondent for appointment on compassionate grounds at the time of the death of the respondent’s father, there can be hardly any justification after 25 years of his death. The facts of this case are such, which cannot espouse the claim of the respondent for appointment on compassionate grounds. According to the conclusion drawn by the learned Single Judge, the entire delay, irrespective of its duration, till the dependent attains the age of majority is liable to be condoned. It is not possible for us to accept the aforesaid, as an absolute proposition of law. The aforesaid conclusion is, therefore, liable to be set aside. The same is, therefore, hereby set aside. 7. To be fair to the learned counsel for the respondent, it is imperative for us to take into consideration the Judgment rendered in Mukesh Kumar versus Union of India and others, (2007) 8 Supreme Court Cases, 398 on which reliance was placed. During the course of hearing, learned counsel for the respondent invited our attention to paragraph 5 thereof. Paragraph 5 is accordingly being extracted hereunder: - “5. Learned counsel for the appellant submitted that both CAT and the High Court proceeded on a factually incorrect premise. CAT proceeded on the basis as if the father was rendered medically unfit because of paralytic attack in 1988 and was retired in 1988. Actually and indisputably, the father had retired in 1994. The application made by the appellant was rejected in 1999 and the appeal was dismissed by order dated 17.02.2000. Therefore, the question of 15 years’ delay did not arise. The High Court proceeded on the basis as if the appellant’s father had died in 1994 and the claim for compassionate appointment was raised for the first time after about ten years. In fact the father had not died and had retired and the application was not made after about ten years. In fact, immediately after passing the Senior Secondary Examination, the application was made for the post of clerk since the minimum qualification was passing of Senior Secondary Examination, which was held in the year 1997 and the result was declared in May 1998. The application was made immediately thereafter. In essence, it is submitted that the findings recorded by CAT and the High Court are unsustainable.” 6 A perusal of paragraph 5 reveals, that the same constituted the submissions advanced on behalf of the appellant in Mukesh Kumar’s case (supra). The facts depicted in paragraph 5, however, have no connection or proximity to the facts and circumstances of the present case, and as such, we are satisfied, that the decision rendered in Mukesh Kumar’s case (supra), is totally irrelevant to the facts and circumstances of this case. 8. Reliance was also placed by the learned counsel for the respondent on the decision rendered in K. Kuppusamy and another versus State of Tamil Nadu and others, (1998) 8 Supreme Court Cases, 469. The operative part of the aforesaid Judgment is in paragraph 3 thereof. Paragraph 3 is being extracted hereunder: - “3. The short point on which these appeals must succeed is that the Tribunal fell into an error in taking the view that since the Government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The Tribunal was, therefore, wrong in ignoring the rule.” Having perused the conclusion drawn by the Apex Court in paragraph 3 (extracted hereinabove), we are satisfied, that the same has no relevance to the facts and circumstances of the present case, in as much as no executive instructions were issued by the State Government, on the basis whereof the respondent has raised a claim in this case. We, therefore, find no merit in the contention advanced by the learned counsel for the respondent, on the basis of K. Kuppusamy’s case (supra). 9. In view of the determination rendered by us hereinabove, we are satisfied, that the impugned order rendered by the appellants on 23.08.2001, declining for appointment on compassionate grounds to the respondent, was fully justified. The same is, therefore, upheld. The 7 decision rendered by the learned Single Judge on 01.05.2008, while disposing of Writ Petition (S/B) No. 1826 of 2002, has necessarily to be set aside. Ordered accordingly. 10. The instant special appeal stands allowed in the aforesaid terms. (V.K. Bist, J.) (J.S. Khehar, C. J.) 19.04.2010 19.04.2010 Amit