The Allahabad High Court has said compassionate appointment can’t be denied where the in-service spouse had already retired prior to the death of the wife while disposing of a petition.
A single-judge bench of Justice Rajan Roy passed this order while hearing a petition filed by Rina.
The petitioner filed an application seeking compassionate appointment consequent to the death of her mother, namely, Vimla, who died on 11.06.2018.
The claim of the petitioner has been denied by relying upon Rule 5 (1) of UP Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 on the ground that husband of late Vimla was employed as Sweeper under UPSRTC, therefore, in view of the exception carved out in the said Rule, the petitioner is not entitled to compassionate appointment. Though the said Rules are applicable to Government Servants, but, it appears that they have been applied in Nagar Nigam also as this is the Rule which is referred in the impugned order, the Court observed.
The Court noted,
Rule very clearly says that in case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules.
The impugned order itself says that the husband of Vimla i.e father of the petitioner was employed as Sweeper in Uttar Pradesh State Road Transport Corporation and he retired on 31.12.2015 i.e prior to the death of Vimla.
On a specific query being put, the counsel for the petitioner submitted that the post of sweeper in UPSRTC was not pensionable and a paltry sum of a couple of thousand was paid as post-retiral dues which was inadequate for sustenance.
The Court found merit in the submission of petitioner that the exception in Rule 5(1) will not come into play where the spouse of the deceased was not in employment on the date of her death and was also not getting any pension, subject, of course, to an enquiry in this regard as to the financial condition of the family in the light of the Full Bench decision dated 06.04.2014 in Special Appeal No 356 of 2012 (Shiv Kumar Dubey vs State of U.P and others).
The Court held,
The words ‘is not already employed’ occurring in Rule 5 (1) implies an existing employment and does not cover a scenario where the spouse has retired on the date of death. If such a retired spouse is getting pension then this aspect can be considered separately while assessing the financial condition of the family, but then, in such a situation the exception carved out in Rule 5(1) would not be applicable.
Apparently the opposite parties have misconstrued Rule 5 (1), the same will have no application where the spouse who was in service had already retired prior to the death of the wife. The opposite parties are under an obligation to reconsider the claim of the petitioner in the light of the law on the subject, meaning thereby, they shall ascertain financial condition of the family as to whether the petitioner has adequate means to sustain herself and then take a considered decision in the light of the aforesaid Full Bench decision.
The order dated 22.01.2021 is quashed. Let a fresh decision be taken within two months from the date of receipt of certified copy of the order, the Court ordered.
“It is open for the opposite parties to verify as to whether the father of the petitioner was receiving any pension or had received any other post-retrial dues, if so, what was the amount in this regard,” the Court said while disposing the petition.