HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 978 (S/S) of 2003 Sunny Kumar vs State of others Approved for reporting. Not approved for reporting Date of decision 13-7-05 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 978 (S/S) OF 2003 Sunny Kumar, S/o late Shri Nathi Ram, R/o Quarter No. 68, Reserve Police Lines, Dehradun, District Dehradun. ………………Petitioner. Versus 1. State of Uttaranchal through Secretary, Home, Uttaranchal, Dehradun. 2. Director General of Police, Uttaranchal, Dehradun. 3. Deputy Inspector General of Police (Personnel), Uttaranchal Head Quarter, Dehradun. 4. Senior Superintendent of Police, Dehradun. Dated: July 13, 2005 Sri Ramji Srivastava, learned counsel for the petitioner. Learned Standing Counsel. Hon’ble Rajesh Tandon, J. By the present writ petition the petitioner has prayed for a writ, order or direction in the nature of certiorari praying for quashing the order dated 7th November, 2003 (Annexure-10 to the Writ Petition) passed by the Deputy Inspector General of Police, Uttaranchal, Dehradun. Briefly stated, late Sri Nathi Ram, father of the petitioner was working on the post of Constable in LIO, Dehradun. He died on 02.05.1996 while in service. He left behind him his wife namely Smt. Kusum Lata, son namely Sani Kumar, another son Gaurav Kumar and daughter namely Km. Renu. At the time of the death, his father was 40 years of age. Learned counsel for the petitioner has submitted that after the death of Sri Nathan Ram Smt. Kusum Lata-mother of the petitioner made an application to the respondent no. 4 on 18th May, 1996 requesting him for giving compassionate appointment to the petitioner in the department as she was not physically fit for the government service. The said application was forwarded by the respondent no. 4 to Uttar Pradesh Police Head Quarter, Allahabad vide its letter dated 22.05.1996. Learned counsel for the petitioner has submitted that since at the time of death of Shri Nathi Ram, the petitioner was aged about 14 years, therefore, the application of the petitioner was not forwarded and a note was made that the same will be sent after the petitioner attains the age of majority. The said direction is quoted below:-- “d`Ik;k bl lEcU/k esa voxr djkuk gS fd bl tuin ds dkfUl0 ,y0vkbZ0;w0 ukFkhjke dks fnukad 2&5&1996 dks lsokdky ds nkSjku e`R;q gks pqdh gSA e`rd vkfJr fu;ekoyh ds vUrZxr lsok;kstu ds izdj.k esa mDr e`rd dkfUl dh iRuh Jherh dqlqeyrk mQZ dqlqe nsoh us bl vk’k; dk izkFkZuk&i= fnukafdr 18&5&1996 dks izLrqr fd;k gS fd mldk cM+k yM+dk luh dqekj] ftldh vk;q 14 o"kZ gS] dks og e`rd vkfJr fu;ekoyh ds vUrxZr lsok;ksftr djkuk pkgrh gSA bl izkFkZuk&i= dh Nk;k izfr layXu dj izsf"kr gSA vr% Lo0 dkfUl ukFkhjke ds iq= ds ckfyx gksus ij lsok;kstu dk izdj.k i`Fkd ls izsf"kr fd;k tk;sxkA” On 24th October, 2000, Smt. Kusum Lata, mother of the petitioner has made an application to the respondent no. 4 that the petitioner is aged about 16 and is studying in Class-XII and the same can be considered while relaxing the two years of age in view of the Government Order dated 20.01.1999. Further the petitioner was informed on 1st No well be considered. The letter dated 1st November, 2000 is quoted below:- “d`i;k ofj"B iqfyl v/kh{kd] nsgjknwu dks lEcksf/kr ,oa iqfyl miegkfujh{kd ¼vfHklwpuk½] vfHklwpuk foHkkx] y[kuÅ dks i`"Bkafdr vius izkFkZuk&i= dk lUnHkZ ysa] ftlesa vkius vius ifr LoxhZ; ukFkhjke ds e`rd vkfJr ds :Ik esa vius vYio;Ld iq= luh dqekj dks lsok;kstu gsrq vk;q esa 2 o"kZ dh f’kfFkyrk iznku djus dh izkFkZuk dh gSA mDr lUnHkZ esa vkidks lwfpr fd;k tkrk gS fd orZeku le; esa ykxw 'kklukns’kksa ds vuqlkj e`rd vkfJr dks lsok;kstu gsrq ljdkjh lsod dh e`rd ds 5 o"kZ dk le; 'ks"k gksus dk iz’u gSA bl lEcU/k esa vkidks lwfpr djuk gS fd Hkfo"; esa tc vki }kjk e`rd vkfJr ds :i esa HkrhZ gksus gsrq vkosnu&i= izLrqr fd;k tk;sxk] rc ml le; ykxw 'kklukns’kksa ds vuqlkj gh ml ij dk;Zokgh fd;k tkuk lEHko gks ldsxkA” Again on 24th April, 2001, Smt. Kusum Lata, mother of the petitioner preferred an application to the respondent no. 4 requesting him for the appointment of the petitioner on compassionate ground as now the petitioner has attainted the majority. The Circle Officer, Lines, Dehradun vide its letter dated 04.12.2002 also requested the respondent no. 4 regarding the financial hardships to the petitioner. Letter dated 04.12.2002 is quoted below:- “d`i;k vius i= la[;k&u& 146@2002 fnukad 22&11&2002 dk lUnHkZ xzg.k djus dk d"V djsa] tks bl tuin esa fu;qDr dkfu0 ,y0vkbZ0;w0 ukFkhjke dh fnukad 2&5&1996 dks lsokdky ds nkSjku e`R;q gks tkus ds QyLo:i mudh iRuh Jherh dqlqeyrk us vius iq= luh dqekj dks e`rd vkfJr lsok fu;ekoyh ds vurxZr lsok;ksftr fd;s tkus ds lEcU/k esa budh vkfFkZd fLFkfr dh igyqvksa dh leh{kk dj vk[;k miyC/k djk;s tkus fo"k;d gSA mDr lEcU/k esa voxr djkuk gS fd e`rd vkj{kh ,y0vkbZ0;w0 Jh ukFkhjke dk ifjokj iqfyl ykbZu ifjlj esa ljdkjh vkokl la[;k&68 esa jgrk gSA ifjokj esa iRuh ds vykok rhu cPps gSa] tks dze’k% ch0,0 f}rh; o"kZ] d{kk&12 o d{kk& 11 esa f’k{kkjr gSA e`rd dh iRuh dks orZeku esa ifjokfjd isa’ku ek= 2739&00 :i;s izkIr gksrh gS tks vkt ds ifjos’k esa cgqr gh vYi jkf’k gSA mDr /kujkf’k ls ?kj dk [kpkZ pyuk ,oa cPpksa dh i<+kbZ vkfn dk [kpZ iw.kZ ugha gks ldrk gSA vkosfndk }kjk vius vki dks vYlj dh chekjh gksuk Hkh crk;k gSA bl ifjokj ds vk; ds vU; dksbZ vkSj Jksr ugha gSaA ,slh ifjfLFkfr esa ;fn e`rd vkj{kh ds fdlh vkfJr dks lsok;ksftr fd;k tkrk gS rks bl ifjokj dh vkfFkZd fLFkfr lgh gks ldrh gSA” Again on 4th July, 2003, the mother of the petitioner Smt. Kusum Lata has filed an application before the respondent no.3 requesting him to give the appointment to the petitioner stating therein that the family is suffering a financial hardship. The application was forwarded on 11.07.2003 as will appear from the following recommendations: fo"k;% Jh luh dqekj iq= Lo0 dkfu0 ,y0vkb0;w0 ukFkhjke dks lsok;ksftr fd;s tkus ds lEcU/k esaA lUnHkZ% vkidk i= la[;k&Mhth&,d&370&2002¼50½ fnukad 3&3&2003 d`i;k mijksDr lUnfHkZr i= dk voyksdu djus dk d"V djsa tks izeq[k lfpo] x`g] mRrjkapy 'kklu] nsgjknwu dks lECkksf/kr ,oa bl dk;kZy; dks i`"Bkafdr gS ,oa Jh luh dqekj iq= Lo0 dkfu0 ,y0vkbZ0;w0 ukFkhjke dks lsok;ksftr fd;s tkus gsrq fu/kkZfjr ikap o"kZ ds izfrcU/k ls NwV iznku djus dh Lohd`fr iznku fd;s tkus fo"k;d gSA mDr lEcU/k esa voxr djkuk gS fd Lo0 dkfu0 ,y0vkbZ0;w0 Jh ukFkhjke dh iRuh Jherh dqlqeyrk us vius iq= dks 'kh?kz lsok;ksftr fd;s tkus gsrq vkosnu bl dk;kZy; esa fd;k gSA vr% Jherh dqlqeyrk dk ewy izkFkZuk&i= layXu dj voyksdukFkZ ,oa vfxze vkns’k gsrq izsf"kr gSA” On 7th November, 2003, the application of the petitioner was rejected on the ground that after completion of five years, the application has been made. Relevant paragraph 4 of order dated 07.11.2003 is quoted below:- “pwafd ;kph luh dqekj }kjk vius firk dh e`R;q ds fnukad ls ikap o"kZ dh vof/k ds ckn lsok;kstu gsrq vkosnu izLrqr fd;k] ftl ij lsok;ksftu fn;s tkus vFkok u fn;s tkus dk fu.kZ; 'kklu }kjk fy;k tk ldrk gS] vr% e`rd vkfJr lsok fu;ekoyh ds mijksDr izkfo/kkuksa ds vuqlkj v/kksgLrk{kjh }kjk ;kph ds vkosnu dks fnukad 9&9&2003 dks mRrjkapy 'kklu dks le; lhek esa f’kfFkyrk iznku djus gsrq lUnfHkZr fd;k x;k gSA” Recruitment of a family of the deceased under the provisions of Rule 5 of the U.P. Government Servants Dying in Harness Rules, 1974 is quoted below:- “[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 form the date of 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 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 that 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 dependent of the abovesaid deceased Government servant immediately before his death.] As will appear from Annexure-10 that from time to time the mother of the petitioner was applying for the appointment on compassionate ground but the petitioner was not given the appointment on the ground that he was minor. Two orders passed by the respondents for considering the application after attaining the majority have also been referred above. In 1994 (4) SCC Page 138 Umesh Kumar Nagpal, the Apex Court has emphasized that the whole object of giving compassionate appointment is to enable the family to tied over the sudden crisis. The observations are quoted below:- “For these very reason, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employement is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employement cannot be claimed and offered whatever the lapse of time and after the crisis is over”. In Smt. Sushma Gosain V.s and others vs. Union of India and others, (1989 (4) SCC 468) it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. A similar view was taken in the matter of Smt. Phoolwati v. Union of India and others, AIR 1991 SC 469 following the view taken in Smt. Sushma Gosain’s case (supra) In State of U.P. and Ors. v. Paras Nath (1998 (2) SCC 412) it was held tat the purpose of providing employement to the dependant of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. In the matter of Hansraj H. Jain v. State of Maharashtra, reported in (1993) 3 SCC 634 Hon’ble Supreme Court has held that the public authorities and the Government are bound to act reasonably and fairly and each action of such authorities must pass the test of reasonableness. In 1996 (1) SCC 301 Jagdish Prasad V. State of Bihar & another, the observations are quoted below:- “….The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family.” A perusal of the record shows that it is a case, where the mother of the petitioner has applied for the compassionate appointment right from 18.06.1996 and her husband died on 2nd May, 1996. Thereafter the respondent no. 4 has assured the petitioner on 22nd May, 1996 to accommodate the petitioner after attaining the majority. Similar assurance was given on 1st November, 2000. I see no reason not to accommodate the petitioner after attaining the majority. There has been a legitimate expectation in the mind of the petitioner for getting the compassionate appointment after attaining the majority, therefore, action on the part of the respondent to reject the application on 7th November, 2003 on the ground that the state Government has not taken any action in relaxing the age. Petitioner, therefore, cannot be allowed to suffer on account of the fact that no decision has been taken with regard to relaxation as contained in Rule 5 of the U.P. Government Servants Dying-in-Harness Rules, 1974. Admittedly, the mother of the petitioenr was not given any appointment and the petitioner was assured to be given appointment after attaining the majority, the whole purpose of getting the compassionate appointment is being frustrated by the respondent. It is a hard case, where the application of the petitioner for appointment has been rejected without invoking to the relaxation clause. There has been no finding of the respondent that the family status of the petitioner has been improved. It is a fit case, where the proviso to Rule 5 for the U.P. Government Servants Dying in Harness Rules, 1974 has to be attracted by relaxing the period of five years as there ahs been an undue hardship with the petitioner as the mother has already applied earlier on account of the financial crisis and the petitioenr was assured that he will be accommodated. The doctrine of ‘legitimate expectation’ applies to the facts of the present case. Further, there is no evidence on the record that any of the family member is earning and the situation of the family has been improved. It is well established that the appointment on the compassionate ground only enables the family to rehabilitate themselves on account for the loss of bread-earner. The rejection of the application is, therefore, not warranted in any circumstances so as to oust the family member from claiming the appointment on compassionate ground. Consequently, a writ of certiorari is issued quashing the order dated 07.11.2003 passed by the Deputy Inspector General of Police (Peronnel), Uttaranchal, Dehradun-respondent no.3. Further, a writ of mandamus is issued directing the respondents to consider the case of the petitioner for appointment on compassionate ground within a period of one month from the passing of the order. Writ petition is allowed. Dated: July 13, 2005 Rathour (Rajesh Tandon, J.)