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2018 Supreme(UK) 37
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. JOSEPH, MANOJ K. TIWARI, JJ.
State of Uttarakhand and others - Appellants
Versus
Atul Kumar Saini - Respondent
Special Appeal No. 105 of 2011
Decided on : 19-02-2018
Advocate Appeared:
For the Appellant :Mr. S.S. Chauhan, Deputy Advocate General
For the Respondent:Mr. S.S. Yadav, Advocate
The main legal point established in the judgment is the importance of applying statutory discretion in a fair and just manner, particularly in cases of undue hardship. The court emphasized the need for the State Government to consider individual facts and act in a just and equitable manner when dealing with applications under the Dying in Harness Rules.
Headnote:
Dying in Harness Rules - Delay in Application - 5, 6, 8, 9, 10 - The judgment discusses the application of the Dying in Harness Rules, specifically Rule 5, which requires the application for employment to be made within five years from the date of the death of the Government servant. The court also considers Rule 6, 8, 9, and 10, which deal with the contents of the application, relaxation from age and other requirements, and the power of the State Government to remove any difficulty in the implementation of the Rules. The court emphasizes the importance of applying the statutory discretion in a fair manner and considering the individual facts of each case. It also highlights the need for the State Government to act in a just and equitable manner when dealing with cases of undue hardship.
Fact of the Case:
The writ petitioner's father died in an accident while working as a Driver with the third respondent. The writ petitioner's mother made an application for the petitioner's appointment, but the application was delayed due to the petitioner being a minor at the time of the father's death. The court analyzed the delay in the application and the subsequent rejection of the application by the Government.
Finding of the Court:
The court found that the application for employment was made beyond the stipulated five years from the date of the father's death. It noted the delay in the petitioner's application and the rejection of the application by the Government. The court expressed dissatisfaction with the manner in which the Government considered the applications and emphasized the need for the State Government to apply its discretion in a fair and just manner.
Issues: The main issue was whether the delay in the application for employment under the Dying in Harness Rules should be condoned, and whether the Government's rejection of the application was justified.
Ratio Decidendi: The court held that the application for employment must be made within five years from the date of the death of the Government servant, as per Rule 5 of the Dying in Harness Rules. It emphasized the need for the State Government to consider cases of undue hardship in a just and equitable manner, and to apply its discretion by taking into account the individual facts of each case.
Final Decision: The appeal was allowed, the judgment of the learned Single Judge was set aside, and the writ petition was dismissed.
K.M. JOSEPH, J.
Appellants are the respondents in the writ petition. The writ petitioner approached this Court seeking the following reliefs:
“(a) Issue a writ order or direction in the nature of certiorari quashing the order dated 24.02.2004, 26.03.2006 (Annexure No. 6 & 7 to the writ petition) issued by respondent No.3.
(b) directing the respondent No.1 to grant relaxation in the case of the petitioner ignoring the delay in moving the application and further to direct the respondent No.2 & 3 to provide suitable job/ service to the petitioner as per his qualification.
(c) Issue a writ order or direction in the nature of mandamus directing the respondent No.1 to consider the case of the petitioner ignoring the delay and further to direct the respondent No. 2 & 3 to provide suitable job/ service to the petitioner as per his qualification.”
2. Briefly put, the case of the writ petitioner was as follows:
The father of the writ petitioner, while working as a Driver with the third respondent died in an accident on duty. The writ petitioner was aged 14 years at that time. The mother of the writ petitioner made an application on 11.06.1979 with the prayer that when her son will attain majority, he will be given appointment so that he will not face any difficulty. It is alleged in paragraph no. 3 of the writ petition as follows:
“That in the year 1997 the respondent No.3 given assurance to the mother of the petitioner that when your son will passed out Intermediate, will provide posting as a ministerial staff.”
3. It is further stated that when the mother of the writ petitioner made application on 04.03.2003, on the application of the mother of the writ petitioner on 06.03.2003, 07.04.2003 and October 2004, the mother of the writ petitioner was informed to appear before the third respondent. On consideration of the record, it was found that the writ petitioner and three other candidates have passed five years’ time as prescribed by the Service Rules, but the writ petitioner was not at fault because he was a minor. The second respondent sought instructions from the first respondent in regard to relaxation of time. It is further stated that on 15.07.2003, from the office of the second respondent, a letter was sent to the third respondent in regard to the information of the writ petitioner and it was asked from the mother of the writ petitioner that why she moved this application with so much delay. The mother of the writ petitioner replied by application dated 29.10.2003, in which she assigned the reason that at the time of the death of her husband, the writ petitioner was a minor. It is further stated that the matter was pending with the first respondent for exemption of delay and till date they have not taken any action, and meanwhile, the third respondent informed the mother of the writ petitioner that since she has moved the application with delay so it is dismissed. The mother of the writ petitioner then moved another application on 20.02.2006. Thereafter, on 24.03.2006 it was again informed that relaxation cannot be granted till recommendation is granted by the first respondent. These are the orders/Annexures dated 24.02.2004 and 26.03.2006, which were called in question before the learned Single Judge. Pleadings were exchanged. The learned Single Judge allowed the writ petition taking note of the fact that this is a case where the father of the writ petitioner died on 02.02.1994. The application was actually moved (it is not in dispute) by the mother on 11.06.1997. The writ petitioner was a minor at that time; the writ petitioner became major in the year 1998 and relying on the judgment of this Court in the case of Regional Manager, Uttarakhand Transport Corporation, Dehradun Vs. Arun Sharma & another reported in 2010(1) U.D. 168, the learned Single Judge took the view that the delay should be condoned and allowed the writ petition.
4. In the appeal, when the matter came up for admission in the year 2011, the Bench while admitti
