High Court
Case Details
Neutral Citation No. - 2025:AHC:80954 Reserved on 13.05.2025 Delivered on 16.05.2025 Court No. - 6 Case :- WRIT - A No. - 54354 of 2017 Petitioner :- Mamnoon Ahmad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Harindra Prasad,Jai Singh Yadav,Sarfaraz Ahmad Counsel for Respondent :- C.S.C.,Mohd. Naushad Siddiqui Hon'ble Saurabh Shyam Shamshery,J. 1. Petitioner’s father, an Assistant Teacher at Madarsa Faizanul Uloom, Bahadurganj, Ghazipur, died-in-harness on 11.05.2012. Petitioner filed an application dated 15.07.2012 for compassionate appointment, however, despite repeated reminders and representations when no decision was taken by concerned respondent, petitioner was constrained to approach this Court by way of filing Writ-A No. 12043 of 2014 which was disposed of vide order dated 25.02.2014 with a direction to consider the case of petitioner. 2. Petitioner has filed a fresh representation, however, it was rejected vide order dated 23.04.2014 by Chief Secretary, Department of Minority Welfare and Wakf on ground that at the relevant time there was no scheme or rules to grant compassionate appointment in Madarsa and State was seized with making new rules. 3.
Legal Reasoning
Aforesaid order was never challenged at the behest of petitioner. It is the case of petitioner that Uttar Pradesh Ashashkiya Arabi Aur Farsi Madarsa Manyata, Prashasan Aur Sewa Viniyamavali, 2016 (hereinafter referred to as “Regulations, 2016”) was enforced from 22.07.2016 and its Regulation 10(2) provides that dependant of an employee, who died-in-harness, can file application for compassionate appointment within five years from the date of death. 4.
Legal Reasoning
Sri Harindra Prasad, learned counsel for petitioner, submitted that petitioner filed a writ petition before this Court bearing No. 7048 of 2017 2 with a prayer that his claim for compassionate appointment be considered under aforesaid Regulations, 2016. 5.
Decision
Said writ petition was disposed of vide order dated 14.02.2017 with a direction that claim of petitioner be considered in terms of aforesaid Regulations, 2016. 6. In pursuance of above order, a fresh representation was filed by petitioner, however, by means of impugned order dated 28.09.2017 it was rejected on ground that petitioner’s claim for appointment on compassionate basis was already rejected vide order dated 23.04.2014 which remained unchallenged and since petitioner’s father died-in-harness before Regulations, 2016 came into force, which has no retrospective effect, therefore, claim of petitioner cannot be considered in view of Regulations, 2016. Relevant part of impugned order is reproduced hereinafter: "प्ቌों को सुना गया। ्ቚमुख सचि(cid:18)व उ०्ቚ० शासन अल्पसंख्यक कल्याण एवं वक्फ अनुभाग-3 के काया#लय ्ሺाप दि’० 23 अ्ቚैल, 2014 तथा उ०्ቚ० शासन अल्पसंख्यक कल्याण एवं वक्फ अनुभाग-3 के शासना’ेश जो सचि(cid:18)व ्ቦी ्ቚकाश िሺसह अल्पसंख्यक कल्याण एवं वक्फ की आ्ሺा से सरकारी गजट उ०्ቚ० में 22 जुलाई 2016 का गजट हुआ, का अवलोकन दिकया गया। यह गजट उ०्ቚ० अशासकीय अरबी एवं फारसी म’रसा मान्यता ्ቚशासन एवं सेवा दिवदिनयमावली 2016 है। इस दिनयमावली की धारा-1 की (उपधारा-2) में यह कहा गया है दिक यह गजट में ्ቚकाशिशत होने के दि’नांक से ्ቚवृतत होगी। उ०्ቚ० शासन के काया#लय ्ሺाप 23 अ्ቚैल, 2014 के अनुसार मृतक आशि्ቦत के रूप में सेवा योजिजत दिकया जाना सम्भव नहीं पाया गया है। तद् नुसार मा० उ्ሴ न्यायालय के आ’ेश दि’० 25.02.2014 एवं ममनून अहम’ का ्ቚत्यावे’न दि’० 11.03.2014 पहले ही दिनस्तारिरत हो (cid:18)ुका है जिजसके अनुसार सम्बኌन्धत रजिजस्ट्रार ्ቛारा शासन को ्ቚस्ताव दि’ये जाने से ही न तो मृतक आशि्ቦत की दिनयमावली न तो स्वतः लागू होती है और न ही इससे दिकसी व्यदिV को मृतक आशि्ቦत का लाभ ्ቚा् करने का अचिधकार स्वतः ्ቚा् होता है। जब तक सम्बኌन्धत ्ቚस्ताव के अनुसार शासन ्ቛारा दिनयमावली लागू न हो जाये तब तक मृतक आशि्ቦत का अचिधकार नहीं बनता है। (cid:18)ूंदिक सरकार गजट उ०्ቚ० में दि’० 22 जुलाई 2016 को मृतक आशि्ቦत के सम्बन्ध में दिवदिनयमावली 2016 आኌस्तत्व में आ गयी है और यह गजट में उजिXखिखत चितशिथ 22 जुलाई 2016 से ्ቚभावी है। इसखिलए या(cid:18)ी ममनून अहम’ को मृतक आशि्ቦत के रूप में दिनयोजिजत 3 नही दिकया जा सकता है। क्योंदिक व्ቧ# 2016 की दिवदिनयमावली से पूव# का यह केस है। मा० उ्ሴ न्यायालय के आ’ेश दि’० 14.02.2017 व आ’ेश दि’० 17.08.2017 के समा’र में ्ቚबन्धक म’रसा फैजानुलउलूम, बहा’ुरगंज, जिजला-गाजीपुर से आख्या मांगी गयी जिजसके ्ቅम में उन्होंने अपनी आख्या / दिनरस्तीकरण आ’ेश दि’नांक 14.04.2017 ्ቚस्तुत दिकया। (cid:18)ूंदिक दिनयमावली ्ቚाचिधकारी ्ቚबन्धक/्ቚबन्धकारिरणी सदिमचित होती है व दिनयमावली 22 जुलाई 2016, या(cid:18)ी के ्ቚकरण में आ्ቌादि’त नहीं होगा (Retrospective effect) से लागू नहीं है क्योंदिक इस दिनयमावली का दिनयम-1 की उपधारा-2 में स्प्ቖ ्ቚावधान है दिक दिनयमावली के लागू होने के दि’नांक 22 जुलाई 2016 के उपरान्त मृतक आशि्ቦत का लाभ ’ेने की व्यवस्था है। इससे पूव# भी ्ቚाथk का ्ቚकरण शासन के आ’ेश दि’० 23 अ्ቚैल 2014 ्ቛारा दिनरस्त दिकया जा (cid:18)ुका है। अतः ्ቚाथk का ्ቚत्यावे’न पो्ቧणीय व दिनयमावली के अऩुरूप न होने के कारण ्ቚाथ#ना प्ቔ दि’नांक 20.02.2017 दिनरस्त व दिनस्तारिरत दिकया जाता है।" 7. Learned counsel for petitioner submitted that petitioner’s father died- in-harness on 11.05.2012 and according to above referred provision of Regulations, 2016, a dependant can file application for compassionate appointment within five years, i.e., in the present case till 11.05.2017. Therefore, as soon as Regulations, 2016 came into force w.e.f. 22.07.2016 petitioner immediately filed a representation dated 11.01.2017, i.e., within five years of death of his father. However, when it was not considered, petitioner has approached this Court by way of filing Writ-A No. 7048 of 2017 wherein a direction was passed to consider the case of petitioner. Therefore, claim of petitioner cannot be non-suited. 8. Learned counsel for petitioner further submitted that the controversy with regard to retrospective effect of Regulations, 2016 was considered by a Coordinate Bench of this Court at Lucknow in Mohd. Ayza Ahmad vs. State of U.P. and others, 2018(4) ADJ 243 wherein it was held that a person whose parents expired within a period of five years can apply under Regulation 10 of Regulations, 2016, despite such a death might have happened before 22.07.2016. Learned counsel submitted that petitioner’s case can still be considered despite his father died-in-harness about 15 years ago as petitioner 4 was always agitating his right before concerned respondents and has also approached this Court on earlier two occasions. 9. Learned Standing Counsel appearing for State-Respondents and Sri Mohd. Naushad Siddiqui, Advocate appearing for Respondent-4, have not disputed the above referred position of law as held in Mohd. Ayza Ahmad (supra). However, they submitted that after such a long time the object of compassionate appointment does not survive. They referred para 6 of counter affidavit that petitioner and his family are not in financial crisis. For reference para 6 of counter affidavit is reproduced hereinafter: “6. That the contents of paragraph No. 5 of the writ petition being matter of record, need no comment, it is further submitted that the mother of petitioner got due amount of petitioner’s father and also receiving family pension and petitioner is living with her mother in a joint family and his elder brother Akramullah is doing job in Saudi Arabia another brother Nurullah having business in Bhadurganj and petitioner having well furnished house in which A.C. and other equipments are installed and in the one portion of house two power- loom has run by petitioner and one brother, so from these means at- least more than 1,30,000/- per month income of petitioner joint family.” 10. Learned counsel for respondents further submitted that since claim of petitioner was already rejected vide order dated 23.04.2014, it cannot be renewed only on basis of subsequent enactment of Regulations, 2016. 11. In rejoinder, learned counsel for petitioner submitted that aforesaid facts are disputed though by referring para 4 of rejoinder affidavit he fairly submitted that so far as claim that petitioner and his family are not under financial constraint, it has not been specifically denied. For reference para 4 of rejoinder affidavit is reproduced hereinafter: “4- That in reply to the contents of paragraph no. 5,6,7,8,9,10,11,12,13,14 and 15 of the counter affidavit it is stated by the deponent that the petitioner is fully entitled for appointment under dying-in-harness rules because the father of the petitioner has died during his service period. It is further important to state here that the present controversy is squarely covered by the judgment and order dated 29.01.2018 passed by Hon’ble Lucknow Bench of this 5 Hon’ble Court rendered in Civil Misc. Writ Petition (S/S) No. 1227 of 2018, Mohd. Ayza Ahmad Vs. State of U.P. and others as such the petitioner is also entitled for the similar relief because the death of father of the petitioner took place within 5 years prior to coming into force of “ Uttar Pradesh Ashashkiya Arabi Aur Farashi Madarsa Manyata, Prashashan Aur Sewa Viniyamavali, 2016” by notification dated 22.07.2016. The date of death of the father of the petitioner is 11.05.2012 which happen within 5 years from the commencement of the said rules. The photocopy of the judgment and order dated 29.01.2018 passed by Hon’ble Lucknow Bench of this Hon’ble Court in Civil Misc. Writ Petition (S/S)No. 1227 of 2018 is being filed herewith as ANNEXURE NO. R.A.-1 to this affidavit.” 12. I have heard learned counsel for parties and perused the material available on record. 13. In the present case, petitioner was active towards his right for consideration of his application for compassionate appointment and not only he has repeatedly approached the concerned respondents but has approached this Court earlier also. At one stage petitioner was satisfied when his application was rejected by concerned respondent on 23.04.2014, however, when Regulations, 2016 came into force and petitioner finds that Regulation 10 of aforesaid Regulations provides that a claim can be considered under the said regulations, if any application is filed within five years from the death of employee concerned, he immediately approached the concerned respondent and when it was not decided, he approached this Court, however, his claim was rejected by concerned respondent by way of impugned order dated 28.09.2017 on two grounds, firstly that his claim was already rejected vide order dated 23.04.2014 and secondly Regulations, 2016 have no retrospective effect. 14. So far as issue of retrospective effect is concerned, petitioner has a good case since Coordinate Bench of this Court at Lucknow in Mohd. Ayza Ahmad (supra) has dealt with the issue and held that if death occurs within five years before Regulations, 2016 came into force, the claim for compassionate appointment can be considered. 6 15. So far as finality of rejection of claim in terms of order dated 23.04.2014 is concerned, since subsequently Regulations, 2016 came into force and in case petitioner’s case falls within the four corners of said Regulations, it is a new cause of action and order dated 23.04.2014 cannot be considered as a bar of res judicata. 16. In aforesaid circumstances, the Court is of the view that both grounds mentioned in impugned order do not survive. However, so far as the last submission of learned counsel for respondents that since petitioner’s father died-in-harness about 15 years ago, the object of compassionate appointment to tide over the immediate financial crisis may not be available, is concerned, the Court takes note of a recent judgment passed by Supreme Court in Canara Bank vs. Ajithkumar G.K. 2025 INSC 184 wherein the issue of delay especially when litigation was before the Court of Law and its effect on consideration of application for compassionate appointment, was considered and relevant paragraphs of judgment are reproduced hereinafter: “25. The first sub-issue is in relation to the lapse of time since the respondent’s father passed away. It has been in excess of two decades. It does not require anyone to put on a magnifying glass here to assess the time that has been taken for the application of the respondent for compassionate appointment to be finally decided. The parties have reached the third tier in the second round. One of the foremost factors for appointment on compassionate ground is that the same should be offered at the earliest. Unless appointment is made soon after the need to mitigate hardship arises, tiding over the immediate financial crisis owing to (i) sudden premature and untimely death of the deceased employee or (ii) medical incapacitation resulting in the employee’s unfitness to continue in service, - for which benevolence is shown by offering an appointment - may not exist and thereby the very object of such appointment could stand frustrated. 26. More often than not, spurned claims for compassionate appointment reach the high courts or even this Court after consuming substantial time. The ordinary rule of litigation is that right to relief should be decided by reference to the date on which the suitor entered the portals of the court. The relief that the suitor is entitled in law could still be denied in equity on account of subsequent and intervening events, i.e., events between the date of 7 commencement of the litigation and the date of the decision; however, law is well-settled that such relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi-judicial forum for no fault of the suitor [see : Beg Raj Singh v. State of U.P.50]. It would, therefore, not be prudent or wise to reject a claim only because of the time taken by the court(s) to decide the issue before it. 27. Lapse of time could, however, be a major factor for denying compassionate appointment where the claim is lodged belatedly. A presumption is legitimately drawn in cases of claims lodged belatedly that the family of the deceased/incapacitated employee is not in immediate need of financial assistance. However, what would be a reasonable time would largely depend on the policy/scheme for compassionate appointment under consideration. If any time limit has been prescribed for making an application and the claimant applies within such period, lapse of time cannot be assigned as a ground for rejection.” 17. In aforesaid circumstances, since petitioner was before this Court earlier also, therefore, delay cannot be a sole ground to rejected his claim. However the issue, whether petitioner and his family are presently in financial crisis or not, can still be looked into by the concerned respondent. 18. In view of above, impugned order dated 28.09.2017 is hereby set aside and matter is remitted to concerned authority with a direction to reconsider the case of petitioner for compassionate appointment in the light of observations made hereinabove. 19. The writ petition is accordingly disposed of. Order Date :- 16.05.2025 AK Digitally signed by :- AWADESH KUMAR High Court of Judicature at Allahabad