RAMESH CHANDRA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD the learned counsel for the appellant Sri Atul Kumar Dwivedi and the learned counsel for the State. This special appeal challenges the order dated 21.4.09 passed by the learned Single Judge, who dismissed the writ petition of the appellant, denying him the benefit of compassionate appointment under the Dying in Harness Rules, 1974, on the ground that the petition suffers from laches and is devoid of merit. The father of the appellant, Ram Saheray, while serving as a Constable, in the office of the Commandant, 35th Battalion, P.A.C., Lucknow, on 2.11.1983 was murdered, for which a Crime Case no. 170 of 1983 under Sections 279 and 304-A IPC was lodged. In fact, the aforesaid Sections reveal that it was a case of accident where the death has occurred, but it was pleaded as murder in the writ petition. The appellant was only 1 years of age at that time. His mother was alive, but it appears that she did not move any application for appointment on the compassionate ground. It was only after attaining the age of majority, the appellant for the first time in the year 1999, moved an application for compassionate appointment with the plea that the delay beyond 5 years be condoned. Certain recommendations were made by the departmental authorities, but his claim was rejected vide order dated 11.3.04. However, the appellant expresses ignorance about the aforesaid order and, therefore, it appears that he moved some applications/reminders, on which, the order dated 27.2.09 was communicated to him, intimating that his application for compassionate appointment has already been rejected by the Police Headquarters on 11.3.04 and that in pursuance of the relevant Government Orders dated 30.5.01 and 13.5.03, the compassionate appointment could be given only to those persons, who died in discharge of duties of the office in an encounter with anti social elements or in riots or while doing the rescue work during the natural calamities, but the appellant did not fall under any of the categories, as his father died in an accident while he was going on leave. The order further said that there was no justification for relaxing the period of five years. The learned Single Judge has dismissed the writ petition on the ground of delay and laches. The said finding is disputed by the learned counsel for the appellant saying that it was not the case of the appellant that the appellant did not pray before the authority for relaxation of five years period, but as a matter of fact, he claimed appointment after the aforesaid period as he was minor at the time of death of his father, therefore, his claim could not have been rejected on this ground. So far the claim of the appellant on merits is concerned, suffice would be to mention that according to the own case of the appellant that on the death of his father, an FIR had been lodged, and a case was registered under Section 279 and 304-A IPC. It is thus, extremely doubtful as to whether his death would be covered under the relevant Government Orders dated 30.5.01 and 13.5.03 or not when he was going on leave. However, we need not enter into these questions for the simple reason that even if the appellant was entitled to any appointment that could have been done within a reasonable period from the date of death of his father. Needless to reiterate that appointment under the Dying in Harness Rules, 1974 or as per relevant Government Orders, is an appointment, which is to be given only with a view to minimize the financial hardship, which the family faces suddenly because of the demise of the bread-earner. In case, the family in such a situation is not able to carry on and to meet the requirements of the family, the appointment has to be given, but where the family is able to live for a considerable long period without any assistance of the like nature, heavy burden would lie upon the family, who suffers because of the death of the father or any other family member to establish that the family is in the same position and is unable to live and also to show as to what steps have been taken by the family members for meeting the basic requirements. In some appropriate cases, may be that when the person attains majority, the government finds that appointment can be given under the aforesaid rules, but normally waiting for such a long period in the presence of the widow, namely, the mother of the appellant, who was equally competent for applying for compassionate appointment but having not done so, the provisions cannot be allowed to be used as a devise for providing appointment on the compassionate ground in such a case. We have gone through the writ petition and we find that there is no mention about the financial status of the family of the appellant and how the family could survive during all this period in these hard days. Sri Atul Kumar Dwivedi has informed us that the appellant has married and is having children also. We, therefore, have no hesitation in holding that if the appellant during all these period managed to survive with his family and married and also has children, it cannot be presumed that he is a person who can claim compassionate appointment at such a belated stage in a matter where his father died in the year 1983. i.e. after 26 years or so. Under the circumstances, we do not find any illegality in the order passed by the learned Single Judge. Not only the writ petition suffers from laches but the claim put up before the government after such a delay, cannot be entertained. We do not find any merit in the special appeal which is hereby dismissed.