MAHENDRA PRATAP SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) SUDHIR Agarwal, J. Aggrieved by the order dated 18. 9. 2002 passed by respondent No. 2, Director/panchayat Raj, U. P. , Lucknow, rejecting claim of the petitioner for compassionate appointment under U. P. Recruitment of Depen dents of Government Servants (Dying in Harness) Rules 1974 (hereinafter re ferred to as "1974 Rules"), the petitioner has approached this Court by filing the present writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing the aforesaid order and has also sought a writ of manda mus commanding the respondents to grant exemption to the petitioner moving application after lapse of'5 years and to consider him for, compassionate against a class III post keeping in view his educational qualification.

(2.) PETITIONER father late ram Kishore sharma was working as Village panchyat Officer and died in harness on 2. 8. 1989. It appears that petitioner mother Smt. Satawati Devi sought to be given benefit of 1974 Rules by the respondents but she sent a letter dated 9. 3. 1992 stating that due to her mental condition she was not able to serve the department and since both of her sons were minor, till one of her son becomes major, a vacancy may be kept reserved for compassionate appointment under 1974 Rules. The mother of the petitioner also subsequently died on 19. 3. 1995. She was getting family pension in her lifetime but after herdeath, it was paid to the unmarried daughter, i. e. sister of the petitioner and after her marriage, the family pension was sanctioned to the minor sons through their legal guardian Sri Rajveer Sharma. The petitioner whose date of birth is 24. 1. 1983 passed his High School in 1997 and Intermediate in 2000 and submitted an application on 28. 2. 2001 before the District Panchayat Raj Officer, Aligarh, claiming compassionate appointment under 1974 Rules due to death of his father on 2. 8. 1989 stating that since now he has attained majority, he should be considered for the said appointment. He submitted a reminder letter dated4. 8. 2001 and thereafter approached this Court in writ petition No. 18812 of 2002 having received no response from the respondents. The aforesaid writ peti tion was finally disposed of vide judgment dated 6. 5. 2002, permitting the peti tioner to make a fresh representation before the Director, Panchayat Raj, UP. Government who was further directed to decide the same within a period of three months. Pursuant to the said order, the petitioned appears to have made repre sentation dated 11. 6. 2002 before the Director, Panchayat Raj, Lucknowwho has rejected the same by order dated 18. 9. 2002 impugned in this writ petition. In order to complete the facts, Sri Singh, learned Counsel for the petitioner has informed that the petitioner had obtained his graduation degree in Commerce from Agra University in 2004.

(3.) SRI B. N. Singh, learned Counsel for the petitioner vehemently contended that proviso to Rule 5 of 1974 Rules as amended vide notification dated 13. 10. 1993 by (Third Amendment) Rules, 1993. It was open to the State Government to relax limitation of five years for making appointment under 1974 Rules in appropriate cases but in the case of the petitioner, the said discretion has not been exercised validly. He further contended that in fact, respondent No. 2 has not considered the question of exercising power of relaxation under proviso to Rule 5 of 1974 Rules at all and, therefore, the impugned order is liable to be set aside. He also placed reliance on certain authorities of this Court namely, Manoj Kumar Saxena v. Dis trict Magistrate, Bareilly and others, 2000 (2) ESC 967 (All.) Shri Ram Pandey v. Senior Superintendent of Police, Varanasi and others, 2001 (3) ESC 995 (All.) Dharmendra Singh v State of U. P. and others, 2005 (2) ESC 1423 (All) Indrajeet Singh negi v. District Magistrate, Rudraprayag and another, 2006 (3) ESC 1597 (Utt) and Vaibha v Singh v. State of U. P. and others, 2006 (2) ADJ 222 : 2006 (1) ESC 724.