Jan - High Court of Judicature at Allahabad

1 All] Mahendra Pratap Sharma V. State of U.P. and others 15died on 13.8.1987 when he was 12 yearsold. In this case also the applicant movedan application for appointment oncompassionate grounds when he attainedmajority. His application was alsorejected on the ground of delay. Thelearned Single Judge considering thejudgment of the two Division Benchesquashed the order of rejection and heldthat as the applicant moved an applicationwithin 5 years of his attaining majority assuch there is no delay in movingapplication and directed the concernedauthorities to take decision on merit onthe application.7. Relying upon the case of ManojKumar Saxena's case similar view wastaken by the learned Single Judge of thisCourt in the case of Dharmendra Singhversus State of U.P., 2005 (3)U.P.L.B.E.C. 2426 relying upon the caseof Manoj Kumar Saxena's case. In SunilKumar Srivastava versusCollector/District Magistrate,Sultanpur, 1993 (supp) E.S.C.37 (L.B.)when father of the petitioner died on9.9.1973, U.P. Recruitment ofDependents of Government ServantsDying in Harness Rules, 1974 was not inexistence. It came to be operative on31.12.1973.In that case it was held thatthe dying in harness rule is sociallegislation. It should not be considered instrict sense. Similar view is said to havebeen taken by the learned Single Judge ofthis Court in Manoj Kumar versus Stateof U.P. and others, 2009 (4) A.D.J.-89wherein the father of the applicant died inharness on 17.9.1987 when the petitionerwas minor. After he became major, hemoved an application on 27.8.1994 whichwas rejected on 21.3.1997. In paragraph 7of the judgment the Court quashed theimpugned order therein holding that 1974Rules extend consideration of statutoryright to dependents of deceased employeein Government job and it is incumbentupon the State authorities to consider thehardship of livelihood which is afundamental right guaranteed under theConstitution.8. It is further stated that in 2009(120) F.L.R. 164, Shiv Murati versusState of Andhra Pradesh Government,the scheme providing for compassionateappointment on retirement on medicalinvalidation was quashed by AndhraPradesh High Court holding such schemeto be violative of Articles 14 and 16 of theConstitution of India but in appealSupreme Court quashed the judgmentholding the scheme to be constitutionallysaved by Articles 14 and 16 of theConstitution of India. It is stated thatjudgment of the learned Single Judgeimpugned in special appeal is against thejudgment of the aforesaid Supreme Court,hence the provision of Rule 5 of theDying in Harness Rules, 1974 is notapplicable and the view taken by thelearned Single Judge in paragraphs 19,20and 22 of the judgment is contrary to rule5 which had been affirmed by DivisionBenches of the Andhra Pradesh HighCourt referred to above.9. He then submits that the judgmentpassed by the learned Single Judge is alsoagainst the binding precedence of the CoordinateBenches and Division Benchjudgments of this Court referred to aboveand in view of the Division Benchjudgment in Kuldeep Tripathi versusRam Bahadur and others, 2008 Vol.6,A.D.J.741 (DB) wherein it was held thatthe learned Single Judge or DivisionBench is bound by earlier judgmentpassed by same strength or Division