Dismissed

Rajendra Singh Jeena v. State of Uttarakhand

Uttarakhand HC23 Aug 2021SPA/260/2021

Case brief

AI extract

What is this about?

Special Appeal dismissed. Single Judge correctly held that second writ petition for compassionate appointment was not maintainable. Further, daily wager status excluded benefit of Dying in Harness Rules.

What did the court decide?

Special Appeal No. 260 of 2021 dismissed; no order as to costs.

What the court decided

Rajendra Singh Jeena Vs State of… — Pension and Retirement Benefits | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND

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AT NAINITAL

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ON THE 23^RD DAY OF AUGUST, 2021

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BEFORE:

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HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI

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AND

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HON’BLE SHRI JUSTICE ALOK KUMAR VERMA

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SPECIAL APPEAL NO. 260 of 2021

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23^rd August, 2021

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Between:

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Rajendra Singh Jeena .....Appellant

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And

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State of Uttarakhand and others. …....Respondents

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Counsel for the appellant.	: Mr. lear	Dharmendra Barthwal, ned counsel.
Counsel for the	: Mr.	K.N. Joshi, learned
State/respondents.	Dep	uty Advocate General.
Counsel for the : respondent No.4.	Mr. Adv Nee Cou	Pankaj Kumar, learned ocate holding brief of Mr. raj Garg, learned nsel.

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The Court made the following:

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JUDGEMENT: (per Hon’ble Justice Manoj Kumar Tiwari)

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Appellant’s father served as a daily wager with the Forest Department for a long period but his services were never regularized and he passed away as daily wager on 12.07.2009. Appellant was minor at the time of death of his father. Upon attaining majority, in the year 2015 he made an application to the Competent Authority in the Forest Department seeking compassionate appointment.

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Subsequently, he filed Writ Petition No.1586 of 2015 (S/S) which was disposed of by Co-ordinate Bench of this Court vide order dated 05.08.2015 directing the Competent Authority to decide his representation within six weeks.

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According to the appellant, since the Competent Authority had not taken any decision on his representation despite order of this Court, therefore, he was constrained to file another writ petition, being WPSS No.797 of 2021. The said writ petition has been dismissed by learned Single Judge vide judgment dated 09.07.2021. By means of this appeal, appellant has challenged the judgment dated

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09.07.2021 whereby his writ petition has been dismissed. Operative portion of the impugned judgment is reproduced

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below:-

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“11. In these circumstances, I am of the view that apart from the fact that this writ petition is barred by Rule 5 and proviso contained under the Dying in Harness Rules, since being a second writ petition in succession, and much after the death of the deceased employee in 2009, seeking a compassionate appointment now in 2021, is not sustainable, and hence the writ petition lacks merit and the same is accordingly dismissed .”

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Heard learned counsel for the parties and perused the record. Compassionate appointment in a State Department is governed by statutory rules known as ‘Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974’. Rule 5 (1) (iii) of the said rules lays down the condition that application seeking compassionate appointment should be made within five years from the date of death of the Government servant. Although, the said condition can be relaxed in view of power conferred by proviso to Rule 5 (1) of the said Rules, however, the person seeking compassionate appointment has to satisfy the State Government that insistence upon the question of limitation will result in undue hardship in his case. Writ Petition No.797 of 2021(S/S) filed by the appellant has been dismissed on two grounds namely:-

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Second writ petition for the same cause of the action is not maintainable as for non compliance of the earlier order passed in favour of appellant, the remedy of filing contempt petition was available to him.

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Direction to give compassionate appointment cannot be issued after twelve years of death of the Government Servant.

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We concur with the view taken by learned Single Judge. Since there was already a direction to the Competent Authority to consider appellant’s claim for compassionate appointment, therefore, for inaction on the part of the Competent Authority in taking decision, he should have filed a contempt petition for enforcement of the earlier order and second writ petition for the self same relief was not maintainable.

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Even otherwise also, law is well settled that there

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is no inherent right to compassionate appointment, as compassionate appointment is an exception to merit based appointment to public service. Compassionate appointment is given to a dependant member of the bereaved family of a

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Government Servant to tide over the sudden financial crisis, which befalls upon the family due to untimely death of the sole bread winner. In the case of “ Punjab State Power Corporation Ltd. vs. Nirval Singh , (2019) 6 SCC 774 ”, Hon’ble Supreme Court has held that inordinate delay in approaching Courts for compassionate appointment extinguishes the very objective of providing immediate financial help to the family.

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Learned counsel for the appellant then submits that in view of proviso to Rule 5 (1) of the Dying-inHarness Rules, the Competent Authority ought to have considered petitioner’s claim for compassionate appointment by relaxing the condition of five years. He further submits that subordinate Forest Officer had recommended petitioner’s case for compassionate appointment but as the Competent Authority had not taken any decision in the matter, therefore, appellant could not file contempt petition and this also led to delay in filing of writ petition and the learned Single Judge has erred in overlooking this aspect of the matter.

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Per contra, Mr. K.N. Joshi, learned Deputy Advocate General has referred to a judgment rendered by full Bench of this Court in Special Appeal No.07 of 2011 “Uttarakhand Van Vikash Nigam and another vs. Suresh Chandra Auli” . In the said judgment, it was held that dependents of daily wage employees are not covered under the expression ‘Government Servant’, as defined under Section 2 (a) (iii) of the Dying-in-Harness Rules. Thus, according to Mr. K.N. Joshi, learned counsel for the State, appellant is not entitled to benefit of Dying-inHarness Rules, as his father was a daily wager and not a Government Servant.

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The submission made on behalf of the appellant that in view of the recommendation made by the subordinate Forest Officer, appellant was precluded from filing writ petition in time, is not acceptable. As the relief sought in both the writ petitions are the same, therefore, the second writ petition for the same relief was not maintainable.

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