Raza Husain Khan vs State of U.P.and Others

N.K. Mehrotra, J.—By means of this writ petition, the petitioner is seeking appointment under the Uttar Pradesh Recruitment of dependents of Government Servants Dying in Harness Rules, 1974.

According to the petitioner, his father Shri Tezdar Khan was Principal in Dr. G.K. Jaitley Inter College, Akbarpur, District Ambedkar Nagar. Shri Tezdar Khan died on 4.12.1977 when he was working as principal. At the time of the death of father of the petitioner, five successors were major and 4 were minor under the Guardianship of Smt. Kubera Begum, the mother of the petitioner. The petitioner applied to the D.I.O.S., Faizabad for appointment under the aforesaid Rules on 10.12.1977. Afterwards, the petitioner made an application before the Governor on 19.12.2001 and to the Minister for State on 28.3.2001. The D.I.O.S. referred the matter to the U.P. Government for obtaining permission but no permission was given.

In the counter affidavit filed by the D.I.O.S., it is stated that on the death of Tezdar Khan on 4.12.1977 and after his death, no claim was made by any of his dependents. Smt. Kubera widow of late Tezdar Khan filed a writ petition No.9165 (S/S) of 1993 for family pension. The judgment passed in that writ petition for grant of family pension was complied with. The petitioner has filed this writ petition after 26 years from the date of death of his father. It is stated that at the time of the death of the petitioner''s father, there was no provision for giving appointment to the dependents of the deceased teacher/principal working in the recognized aided educational institution. The U.P. Government Servants Dying in Harness Rules, 1974 were not applicable in the case of the teachers of the aided educational institution.

Opposite party No.3, the manager of the institution has also filed the counter affidavit. It is alleged that the provision for giving appointment under the Dying in Harness Rules were incorporated in Regulations 103 to 107 of the Regulations framed under Chapter III of the U.P. Intermediate Education Act, 1921. Regulation 103 provides for compassionate appointment in respect of those employees who died on or after 1st January, 1981. It is alleged that the Rules for compassionate appointment, are meant only to give relief at the time of sudden distress on account of the untimely death of the bread earner of the family. Therefore, the petitioner is not entitled to the appointment on compassionate ground. It is specifically stated that the family of the late Shri Tezdar Khan did not suffer any financial distress at the time of his death.

In Ram Pratap Singh v. State of U.P. and Others, 2004 (22) LCD 1364, this Court relying on the decisions of the Supreme Court in Life Insurance Corporation of India v. Asha Ram Chandra, Ambedkar Nagar, (1994) 2 SCC 718; Umesh Kumar Nagpal v. State of Haryana and others, JT 1994 (3) SC 525; State of Haryana and others v. Ram Devi and another, AIR 1996 SC 2445; Smt. Sushma Gosain v. Union of India, AIR 1989 SC 1976; Haryana State Electricity Board v. Naresh Tomar and another, (1996) 2 UPLBEC 843; State of U.P. and Others v. Paras Nath, (1998) 2 SCC 412; Director of Education Secondary and another v. Pushpendra Kumar and others, (1998) 5 SCC 192, has held that the object underlying a provision for grant of compassionate employment, is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner who has left the family in a penury and without any means of livelihood. In most of the cases, the Supreme Court has noted that such appointment on the ground of sympathy shall be unconstitutional and hit by Articles 14 and 16 of the Constitution of India.

This Court in Ram Pratap Singh''s case (supra), has observed that behind the compassionate appointment, the object is not to give appointment but to extend the financial support. In view of the aforesaid decision, it is settled that underlying idea is to make sure that in case of distress of a family of a deceased employee, immediate succour is provided to mitigate hardship.

After referring the aforesaid decision, this Court has held that the petitioner has failed on the facts of that case, to prove distress which could warrant compassionate appointment to mitigate hardship immediately to the family of the deceased emplopyee. At the same time, this Court has held that Dying in Harness Rules do not stand the test of the valid classification and therefore the Rules contemplating compassionate appointment are hit by Articles 14 and 16 of the Constitution of India.

In the instant case under judgment, there is no evidence that the family was in distress at the time of the death of the father of the petitioner. Moreover, in the case of the teachers of the aided educational institution, there were no Rules for compassionate appointment in the year 1977 when the father of the petitioner died. The relevant Rules were incorporated in Regulations 101 to 107 vide Notification No.300/1572(1)/90 dated 2.2.1995 and it was made clear in those provisions that these regulations shall be applicable in the case of those employees who died on 1.1.1981 or after that date.

Therefore, in the absence of any Rules on the date of the death of the father of the petitioner and in view of the law discussed above by this Court in Ram Pratap Singh''s case (supra), this writ petition is dismissed.

(Petition dismissed)