Remanded

Chandra Rathore v. State of U P and 2 Others

Allahabad HC24 Nov 2022WRIA/7804/2021

Case brief

AI extract

What is this about?

The Court dismissed the claim for compassionate appointment due to a 12-year delay after the employee's death. However, it set aside the rejection of claims for retiral dues and pension, remitting the matter for a fresh order, noting the employee was in service at the time of death.

What did the court decide?

Retiral dues and pension claims remitted for fresh order; compassionate appointment claim dismissed due to delay.

Chandra Rathore Vs State of U P and 2 Others — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 36 Case :- WRIT - A No. - 7804 of 2021 Petitioner :- Chandra Rathore Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Anurag Kumar,Pankaj Kumar Tyagi Counsel for Respondent :- C.S.C.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Pankaj Kumar Tyagi alongwith Sri Anurag Kumar learned counsel for the petitioner and Sri Vibhav Ojha learned Standing Counsel for the State respondents.

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Present petition has been filed against the order dated 27.5.2021 passed by the Additional Director, Technical Education, U.P.. Thereby the said authority has rejected the representation filed by the petitioner seeking compassionate appointment for reason of delay.

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Relevant to present case, it is undisputed that the husband of the petitioner Bhagwan Das Rathore had last worked as Clerk at Rajkiya Polytechnic Rampur. Vide transfer order dated 15.7.2000 he was transferred to Seth Ganga Sagar Jatiya Polytechnic Khurja. Though relieved, the said Bhagwan Das Rathore could not join the transferred place of posting. Pleadings have been made in the writ petition to contend that the transfer order could not be complied by Bhagwan Das Rathore for reason of ill health. Whatever be the correct facts in that regard, at present it does appear that the said Bhagwan Das Rathore did not join at the transferred place of posting till his death on 17.8.2009 i.e. almost nine years after the issuance of the transfer order. Also, it is a fact that the respondents did not initiate any disciplinary proceedings against the said Bhagwan Das Rathore. Consequently, it may be assumed, for the purpose of this writ petition that he was in service on the date of his death.

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At present the petitioner claims, her son Narendra Kumar Rathore had made application to the Director Technical Education that was dispatched by Speed Post on 13.8.2010. Copy of the same has been annexed as Annexure-13 to the writ petition. At the same time, it is undisputed that neither the petitioner nor her son Narendra Kumar Rathore ever approached this Court to seek any direction for early disposal of that application and the same remained pending. The petitioner first approached this Court by means of Writ-A No. 1655 of 2021. It was disposed of by following order dated 04.2.2021:

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"Heard learned counsel for the petitioners and learned Standing Counsel for respondent Nos.1 to 3.

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The petitioners have preferred the present writ petition inter-alia with the following prayer:-

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"(i) Issue a writ, order or directing in the nature of mandamus commanding and directing the respondents to give all the retiral benefits and pension of the petitioner and also to consider the appointment of her son as compassionate appointment in the department."

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It s argued by learned counsel for the petitioner that the husband of the petitioner namely late Bhagwan Das was working on the post of Junior Clerk at Rajkiya Polytechnic, Rampur District Rampur. Vide order dated 15.07.2000, he was transferred from the aforesaid Institution to Seth Gangasagar Jatia Polytechnic Khurja. It is argued that due to health problem, he was not able to join the transfer post and ultimately died on 17.08.2009. It is argued that after the death of the husband of the petitioner, various representations have been made by the petitioner for payment of dues for which the petitioner is entitled but till date no action has been taken on the same.

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Heard learned counsel for the parties. With the consent of learned counsel for the parties, the present writ petition is disposed of finally disposed of permitting the petitioner to make a fresh representation ventilating all his grievances before the respondent No.3/Additional Director Technical Education U.P. Lucknow along with copy of the self attested computer generated copy of this order downloaded from the official website of High Court Allahabad within a period of three weeks from today. If such a representation is filed, the respondent No.3 will pass appropriate orders strictly in accordance with law expeditiously and most preferably within a period of three months from the date of submitting of representation before him."

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In compliance of that order, petitioner appears to have then approached the Director Technical Education vide fresh representation dated 16.2.2021. A copy of the same has been annexed as Annexure-11 to the writ petition. Perusal of that

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document reveals, though the petitioner made prayer for payment of retiral dues, pension and also grant of compassionate appointment, the same does not contain any disclosure of any earlier application made. Only general reference has been made to earlier application. However there is no disclosure made as may inspire confidence with the Court that the petitioner or her son Narendra Kumar Rathore had ever applied for grant of compassionate appointment on any date prior to 16.2.2021. Materially, no reference has been made to the earlier application (undated) claimed to have been filed by the petitioner on 13.8.2010 (Annexure-13 to the writ petition).

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Such being the facts, upon hearing learned counsel for parties, there is no material to reach the conclusion that the petitioner had earlier approached the respondents with any prayer for grant of compassionate appointment. That application had to be made by the person seeking compassionate appointment. Merely because the petitioner may have made a request to the Director, Technical Education to grant such appointment to her son, may never be construed as a complete application made by the petitioner's son Narendra Kumar Rathore to be granted appointment on compassionate considerations. Even the representation dated 16.2.2021 is not a representation made by the said Narendra Kumar Rathore but by the present petitioner who happens to be his mother. In absence of any clear evidence brought before the Court to establish filing of any application at the relevant time by Narendra Kumar Rathore (to seek compassionate appointment) and further in absence of any specific reference to that application in the application made by the petitioner on 16.2.2021, it has to be accepted, that was the first application.

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The rule of equality is enforced for the benefit of all citizens. Compassionate appointment is an exception made to that rule.

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To make such an exception and for discretionary relief to be granted clear cut facts must exist besides timely prosecution of legal remedies.

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Here, the occurrence of death is of the year 2009 whereas the petitioner appears to have first requested the Director Technical Education to grant such appointment to her son in the year 2021. Thus, the request was made after 12 years of the occurrence of death. Even then the petitioner's son Narendra Kumar Rathore has not made any application for grant of compassionate appointment till date. Legally, there is not application in existence for grant of compassionate appointment.

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In any case, 12 years is a long period to have passed since the occurrence of death. The Director Technical Education has not erred in rejecting the claim on the basis of delay.

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Submission of learned counsel for the petitioner that the writ Court had allowed the petitioner to make a fresh representation and therefore, the representation filed warranted consideration on merits, cannot be accepted for the reason, at that stage, the petitioner had approached this Court for retiral benefits, pension and also for grant of compassionate appointment. Even at that stage, it appears, claim made therein was not clearly shown to exist. Perhaps for that reason, the writ Court directed the petitioner to make fresh representation with respect to the claims being canvassed.

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While no fatal defect of delay may be noted with respect to claims for retiral dues and pension, insofar as the prayer for compassionate appointment is concerned, the same would have to be seen in the context of delay. Merely because the writ Court directed the petitioner to make fresh representation in that regard may never be read as an order to condone the delay that

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had already been caused in making such claim. The position would have been different if the petitioner has been able to establish that Narendra Kumar Rathore had earlier filed any specific application seeking compassionate appointment, as may have remained pending.

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Since, no application is seen to have remained pending till before the issuance of the direction by the writ Court, the petitioner cannot seek condonation of delay already committed by her, till that stage by relying on the direction issued. Since no application of mind had arisen at that stage on the issue of delay, the direction of the writ Court may never be read to prevent the respondents from looking at the issue of delay. To that extent, the impugned order does not call for interference by this Court in exercise of discretionary jurisdiction under Article 226 of the Constitution of India.

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Insofar as the claim for retiral dues and pension is concerned, the issue of delay may not prevent the authorities from considering the same if the deceased/petitioner was otherwise entitled to those benefits. To that extent alone, the impugned order dated 27.5.2021 is set aside. Matter is remitted to the Director Technical Education to pass fresh order treating the claim for retiral dues and pension to have been made within time. The fact that the deceased may have remained on unauthorised leave, may also not stand in the way of that claim as it is undisputed that though the deceased remained on unauthorised leave, he was not terminated or dismissed from service till the occurrence of death. Consequentially, it has to be accepted that he was in service on the date of his death.

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With the above directions, present writ petition stands disposed of.

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Order Date :- 24.11.2022/Faraz

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Digitally signed by FARAZ AHMAD Date: 2022.11.25 10:07:50 IST Reason: Location: High Court of Judicature at Allahabad

Chandra Rathore v. State of U P and 2 Others

Case brief

What is this about?

What did the court decide?

Chandra Rathore v. State of U P and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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