Board of Director v. Hon’ble Sudhanshu Dhulia, J

Mr. Ashish Joshi, Advocate for the appellants. Mr. P.S. Bisht, Advocate for the respondent. Date of Decision: 19.07.2010 Sudhanshu Dhulia, J. (Oral) This special appeal has been filed by the appellants challenging the two orders of the learned Single Judge of this Court dated 03.09.2008 and 01.10.2008, respectively, passed in Writ Petition (S/S) No.1618 of 2005. The order dated 01.10.2008 is in fact a modification of earlier order dated 03.09.2008. Since the two orders are short orders, the same are being reproduced hereunder:- ORDER DATED 03.09.2008 “Sri P.S. Bisht, learned counsel for the petitioner. None appears on behalf of the respondents. Urgency application is disposed of. The father of the petitioner was in the Government Service and he died in harness. At the time of death of his father, the petitioner was minor and was not entitled to be appointed in the Government job under the Dying in Harness Rules. After attaining the age of majority, he applied for being considered for appointment under the Dying in Harness Rules. The application of the petitioner had been rejected on the ground that it was highly belated. The Uttar Pradesh Recruitment of Dependents of 2 empowering Government Servants Dying in Harness Rules, 1974 contains the State Government/Appointing provision Authority to condone the delay in cases where the authority is satisfied. Here in the present case, the delay for not making application within time was due to under age and immediately after attaining the age for being eligible to be appointed as Government Servant application was made. It was a sufficient reason to condone the delay. List this petition in due course to reconsider. The petition is allowed.”

2. Consequent to the aforementioned order, a correction/ modification application was moved by the petitioner (respondent herein) and the following order was passed on 01.10.2008:- ORDER DATED 01.10.2008 “Sri P.S. Bisht, learned counsel for the applicant/petitioner and Sri Ashish Joshi, learned counsel for the respondents. I have perused the correction application. Present correction application is treated as modification application. Reasons stated in the affidavit filed in support of the modification/correction application are satisfactory to allow the application. Hence, modification/correction application is allowed. Accordingly, the order dated 3.9.2008 passed by this Court is modified to the extent that the last para of the said order “List this petition in due course to reconsider. The petition is allowed.” Shall stand deleted and it shall be read as under: “Therefore, respondents are directed to reconsider the matter in the light of the observation made above. The writ petition is disposed of finally with the aforesaid observation / direction. No order as to costs.”” In sum and substance, vide order dated 01.10.2008, the petition was disposed of with the directions/observations made by the learned Single Judge in his earlier order dated 03.09.2008. The net result of the two orders would be that the appellant had to consider the matter of appointment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, (from hereinafter referred to as the Dying in Harness Rules) irrespective of the delay in moving the application for appointment as is the clear observation of the learned Single Judge there “was sufficient reason to condone the delay.”

3. The brief facts of the case are, that the father of the respondent, who was an employee of Uttar Pradesh State Road Transport Corporation, died in harness on 02.02.1991. His widow, namely, 3 Smt.Ganga Devi moved an application under the Dying in Harness Rules before the competent authority, on 25.11.1991 stating therein that she has passed Class-V which is her education qualification and she may be given appointment on a suitable post, as her family is facing acute financial difficulties due to the death of the sole breadwinner of the family i.e. her husband.

4. There is nothing available on the record which shows as to how the mother of the respondent (i.e. petitioner before the learned Single Judge) Smt. Ganga Devi pursued the matter after 25.11.1991. According to the respondent, another application was only moved by his mother on 24.03.2000 (Annexure-4 to the writ petition), which is admittedly after a gap of 9 years, wherein she stated that in case she cannot be given appointment under the Dying in Harness Rules, her son (respondent herein), who has passed Class- VIII examination, be given appointment in her place when he attains the age of majority (which according to the learned counsel for the respondent on 27th July, 2004). Thereafter another representation was moved by the respondent on

28.08.2004 stating that now he has attained the age of majority and he therefore be given appointment under the Dying in Harness Rules. This representation of the respondent was rejected by the Regional Manager, Uttaranchal State Road Transport Corporation, Nainital on 02.12.2004 holding that the application was moved on behalf of the petitioner (respondent herein) by his mother on 24.03.2000, when the petitioner had not even attained the age of majority. The initial application itself was moved on 02.02.1991 when the petitioner (respondent herein) was not even eligible for appointment even within five years of the said application. The Competent Authority consequently rejected application on the grounds of it being highly belated and no consideration could be made on such an application. Aggrieved by the said order dated 02.12.2004, the petitioner (respondent herein) filed writ petition before this Court, which was disposed of by the earlier two orders (extracted above). These orders have been challenged by the Uttaranchal State Road Transport Corporation in this appeal. 4

5. The law on appointments under the Dying in Harness Rules is by now well settled. These appointments are made in order to provide immediate relief to a bereaved family so that it overcomes the financial hardship resulting due to the death of the breadwinner of the family. There is always an urgency in these matters. In the present case, the father of the respondent died in the year 1991. The claim made by the respondent for appointment in the year 2004 when he had attained the age of majority. Such a belated application cannot be entertained for appointment under compassionate grounds for the sole reason that apparently there is no immediate hardship for the family as the death of the father of the petitioner occurred in the year 1991, which is more than 13 years prior to making the application in the year 2004. There cannot be any justification for ignoring this long delay and the authorities were therefore right in rejecting the claim of the petitioner for this reason alone. As such the directions given by the learned Single Judge are against the well settled position of law on the subject.

6. In view of the above, the instant special appeal is allowed. The impugned orders dated 03.09.2008 and 01.10.2008 are set aside. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.)

19.07.2010 P. Singh