Allahabad High Court
Shakuntala Devi vs State Of U.P. And 2 Others on 20 April, 2017
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 18 Case :- WRIT - A No. - 9255 of 2017 Petitioner :- Shakuntala Devi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Hridaya Narain Shukla,Rajeev Ratan Shukla Counsel for Respondent :- C.S.C. Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner, a divorcee, is aggrieved by the order dated 4.2.2017 passed by the District Magistrate,whereby her compassionate appointment made in the year 2003, has been terminated treating her a temporary employee.
The factual matrix of the case is in a short compass:
Petitioner's father- late Ram Bali Singh, was a driver in Collectorate, Allahabad. Unfortunately, he died on 16.8.1995 while in harness. The petitioner made an application for appointment on compassionate ground which was rejected on 18.8.1999.
Aggrieved by rejection of her application, she preferred the Writ Petition No. 43408 of 1999. The said writ petition was allowed on 9.8.2000 and the order dated 18.8.1999 rejecting her claim was set aside and a direction was issued to the respondents to provide compassionate appointment to her.
Against the judgment and order dated 9.8.2000 of learned Single Judge, a special appeal no. 626 of 2000 was preferred which was also dismissed on 30.7.2001 imposing a cost of Rs. 1700/-. The respondents thereafter preferred S.L.P. (C) No. 13766-13767 of 2002 before the Supreme Court which was also dismissed on 7.2.2003.
When the order passed in Special Appeal was not complied with, the petitioner filed Contempt Petition No. 4167 of 2000 wherein the respondent took the plea that District Magistrate has sought permission of the State Govt. to file a S.L.P. in Supreme Court against the order of High Court and now the Special Leave Petition has been filed.
The Court in Contempt Petition, rejected the said plea and observed thus:
"The fact that a Special Leave Petition has been preferred in the Supreme Court against the order dated 30.7.2001 after great delay, cannot be a ground to disobey the direction issued by this Court, as long back as on 9.8.2000. The District Magistrate, Allahabad is not justified in failing to implement the orders firstly on the ground of seeking instructions from the State Government in the matter and thereafter in filing Special Leave Petition. Every person aggrieved by an order including State Govt. or any instrumentality of the State, has a right to file an appeal, but such right must be exercised within a reasonable time provided in law. Presentation of an appeal in apex Court, with delay of more than six months, cannot be taken as a bona fide ground. He is the appointing authority and appointment can be made by him to abide by the decision of the Apex Court. On the facts and circumstances, prima facie, I find that the reasons stated by Sri Devesh Chaturvedi, District Magistrate, Allahabad in his counter affidavit filed today, cannot be sustained.
List this matter on 25th July, 2002.
In the meantime, it will be open to the District Magistrate, Allahabad to report compliance by filing his affidavit, failing which he shall appear in person on the date fixed i.e. 25th July,2002."
After the Supreme Court dismissed the SLP, the petitioner was appointed on 30.4.2003 on the post of Junior Typist in pay scale of 3050 - 4990. She joined on 1.5.2003.
The respondent vide notice dated 18.12. 2004 asked the petitioner to appear in a typing test. She appeared in said test and her typing speed was found to be 13 words per minute which was less than the minimum required speed of 25 words per minute. She was subjected to three more tests on different dates and on 27.12.2006 her speed was found 20 words per minute.
After two years, on 5.2.2007 she was again asked to appear in another test. In said test her speed was found to be 30 words per minute. And she was declared "Passed".
The respondents were not satisfied with said test. They again held another test on 26.7.2008 by another official wherein her typing speed was found "Zero". It is stated that thereafter she was given several letters to appear in further typing tests but she refused to undergo any such tests.
At this stage, disciplinary proceeding was initiated. On 26.7.2008 a charge sheet was served upon her and the Addl. City Magistrate (II) was appointed Inquiry Officer.
The petitioner challenged the charge sheet by way of Writ Petition No. 45197 of 2008, which was allowed . The charge sheet and disciplinary proceedings were quashed by the Court, vide order dated 11.4.2016. The order of learned Single Judge attained finality as it was not challenged by the respondents. Inspite of the fact that charge sheet was quashed, on 21.11.2016 a show cause notice was issued to the petitioner. This show cause notice runs into six pages (annexure-7 to the writ petition).
It is stated that thereafter by the impugned order dated 4.2.2017, the District Magistrate has terminated services of petitioner treating her a temporary employee.
Relying on a decision of this Court in Rajesh Kumar Vs. State of U.P. And others, 2016(11) A.D.J. 683, Sri H.N. Shukla, learned counsel for the petitioner contends that appointment on compassionate ground is not a temporary appointment. It is always treated as a permanent appointment. As regards the ground that petitioner does not have requisite typing speed of 25 words per minute, he submits that in the case of compassionate appointment, minimum eligibility can be relaxed in terms of the U.P. Recruitment of Dependents of Govt. Servants Dying -in-Harness Rules,1974( for short Rules of 1974) itself.
Learned counsel for the petitioner further urged that conduct of the respondents in the facts and circumstances of the case, amounts to malice in law. According to the learned counsel, the petitioner was unnecessarily dragged upto Supreme Court. When her writ petition was allowed, the matter was carried by the respondents in Special Appeal before this Court and thereafter Special Leave Petition before the Supreme Court which were also dismissed and it was only then the petitioner was offered appointment and now by the impugned order, her services have been terminated treating her temporary employee. Learned counsel lastly urged that even a temporary employee after serving 15 years, gets a permanent status.
The stand taken by the respondents in paragraph 6 & 8 of their counter affidavit is that petitioner was appointed on temporary basis under the U.P. Recruitment of Dependents of Govt. Servants Dying -in-Harness Rules,1974 (for short the Rules of 1974). It is averred in paragraph 14 of the counter affidavit that she has been appointed on compassionate ground in terms of the Rules of 1974 and she ought to have necessary qualification of typing having speed of 25 words per minute.
Learned standing counsel has further invited attention of the Court to paragraph 14 of the counter affidavit wherein there is reference of a Govt. Order dated 21.8.2002, copy of which is on record as annexure C.A.-1 and on that basis, he submits that typing is a necessary qualification. No other submission has been made.
Rejoinder affidavit has been filed wherein it is stated that appointment made on compassionate ground is always permanent in nature and the U.P. Temporary Govt. Servants (Termination of Service) Rules, 1975, are not applicable to the petitioner's case.
I have heard Sri H.N. Shukla, learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned standing counsel for the respondents.
It is common ground that petitioner was appointed on compassionate ground in terms of U.P. Recruitment of Dependents of Govt. Servants Dying -in-Harness Rules,1974. Initially, her application for the said appointment was rejected by respondent vide order dated 18.8.1999. The said order was challenged by her in Writ Petition No. 43408 of 1999 which was allowed. The respondents thereafter filed Special Appeal no. 626 of 2000 which was also dismissed with imposition of cost of Rs. 1700/-. Again respondents preferred aforesaid S.L.P. before the Supreme Court which was also dismissed. The Supreme Court while dismissing the S.L.P. on 7.2.2003 has observed as under :
" And this Court doth further order that this order be punctually observed and carried into execution by all concerned."
It was after dismissal of the aforesaid S.L.P. by the Supreme Court the petitioner was offered appointment on a class III post as she is a Graduate (B.Sc.). vide appointment letter dated 30.4.2003 with the condition that her appointment is temporary, she could appear in typing test and her appointment can be terminated at any time without any notice.
It is stated on behalf of the respondents that Govt. Order dated 21.8.2002 stipulates that in case of appointment on compassionate ground, no relaxation is provided, hence on 1.10.2003 a notice was issued to the petitioner for appearing in typing test. The petitioner sought some time and it is alleged that she did not appear in the typing test. Therefore, she was again given notice on 6.9.2004 for typing test, pursuant to which she appeared in typing test on 18.12.2004 and her typing speed was found 13 words per minute i.e. below the requisite speed of 25 words per minute. She was again asked to appear in typing test on 10.5.2005 in which her typing speed was calculated 10 words per minute. Thereafter, in the typing test conducted on 27.12.2006, her typing speed was found 20 words per minute. Again after two months on 5.2.2007 in the test , her typing speed was 30 words per minute. It is stated that thereafter she was again required to appear in typing test on 10.5.2007,12.12.2007 and 11.1.2008 in which the petitioner did not appear despite receipt of notice by her. It is clear from the above that in different typing tests, her typing speed varied in between 10 to 30 words per minute.
A charge sheet was served upon her on 26.7.2008. The petitioner challenged the said disciplinary proceedings by way of Writ Petition No. 45197 of 2008. The Court by its judgment and order dated 2.9.2008 while setting aside the disciplinary proceedings, allowed the writ petition with the following observations :
"In my opinion, this cannot be a ground for giving a chargesheet to the petitioner. If the petitioner does not want to appear in the typing test she cannot be forced to appear in the typing test and the mere fact that she did not appear in the typing test despite time being granted she cannot be said to be indisciplined. It is quite another matter that her not appearing in the typing test or appearing and not qualifying may entail its own consequences but the disciplinary proceedings cannot be initiated against her merely on the ground that she did appear in the typing test."
The aforesaid judgment and order dated 11.4.2016 of learned Single Judge, has not been challenged by the respondents and thereafter the impugned order has been passed on 4.2.2017 terminating petitioner's services treating as temporary appointment.
It is a trite that appointment on compassionate ground is always a permanent appointment. A Division Bench of this Court in the case of Ravi Karan Singh Vs. State of U.P. and others, 1999 (2) A.W.C.-976 All., has held that appointment under Dying -in-Harness has to be treated as a permanent appointment. This Court in the following cases has taken the same view.
1.Budhi Sagar Dubey v. D.I.O.S., 1993 ESC 21.
2.Gulab Yadav v. State of U.P. and others, 1991 (2) UPLBEC 995. 3.Dhirendra Pratap Singh v. D.I.O.S. & others, 1991 (1) UPLBEC 427.
However, learned Single Judge has doubted the correctness of this judgment and the matter was referred to a Larger Bench. The Division Bench then in Ravi Karan Singh (supra) has held as under:
"In our opinion, an appointment under the Dying-in-Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment, then it will follow that soon after the appointment, the service can be terminated and this will nullify the very purpose of the Dying-in-Harness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner. We, therefore, hold that the appointment under Dying-in-Harness Rules is a permanent appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments."
In the case of Nagesh Kateria V. State of U.P. and others, 2009 (122) FLR, the judgment of Ravi Karan Singh (Supra) has been consistently followed by this Court. A Division Bench of this Court in the case of Yogendra Ram Chaurasia v. State of U.P. and others, 2003 (5) SLR 289, has taken the same view.
Recently, a Full Bench in the case of Sr. General Manager, Ordnance Factory v. Central Administrative Tribunal and others, MANU/UP0287/2016, has quoted with approval the judgments of Ravi Karan Singh (Supra), Sanjai Kumar v. Director General (NCE) Directorate, (2002) 3 UPLBEC 2748 and Ram Chandra v. State of U.P. And others, (2008) 2 ESC 1053.
In view of the above, it is manifestly clear that the District Magistrate has terminated services of the petitioner illegally treating her as a temporary employee, hence the order impugned is unsustainable in the eyes of law on this ground alone.
In the order impugned, the District Magistrate has relied upon a communication dated 21.8.2002 which is described as Govt. Order, a copy of which is on record as annexure C.A.1 to the counter affidavit. As can be seen from the perusal of the said document, it is not a Govt. Order but an intra departmental communication between the Deputy Secretary and the District Magistrate. Government Orders are issued under Art. 166 of the Constitution. A Constitution Bench of the Supreme Court in the case of Bachhittar Singh Vs. State of Punjab and another, AIR 1963 SC 395, has held that before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of Governor as required by clause (1) of Article 166 of the Constitution and then it has to be communicated. The Constitution requires that the action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State.
In the present case, the aforesaid letter dated 21.8.2002 itself indicates that it has been sent by the Deputy Secretary addressed to the District Magistrate, in response to his letter dated 15.5.2002. At the best it can be treated to be a clarification in respect of one Gulam Mohammad Farookh Madni and cannot be a Govt. Order.
Thus, both the grounds mentioned in the impugned order, firstly that petitioner was a temporary employee and secondly that Govt. Order does not permit any relaxation, are unsustainable.
The learned counsel for petitioner made a valiant attempt to argue that the order impugned is malice in law. He has tried to demonstrate that facts and circumstances of the case and conduct of the respondents, clearly established that is the one of the chief ground for passing of the impugned order. The Supreme Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and others, (2010) 9 SCC 437, has elaborately dealt with malice in law and has also made a distinction between malice in fact and malice in law. If an order has been passed wrongly and wilfully without any justification and the purpose of passing the order is other than the law then the order is vitiated due to malice in law. Relevant part of the said judgment reads as under:
"25. The State is under obligation to act fairly without ill will or malice--- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purpose foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of other, which intent is manifested by its injurious acts."
Applying the said principle in the present case, I am satisfied that the order impugned is in fact infected with malice and conduct of the respondent appears to reopen the issue which was set at rest by the Supreme Court in 2003 by observing that Court further order that this order be punctually observed and carried into execution by all concerned.
It is pertinent to mention before offering appointment to her, the petitioner was dragged upto Apex Court and only after rejection of respondents' S.L.P by the Supreme Court, the petitioner was given appointment and thereafter she has been subjected to appear again and again in typing tests wherein her typing speed varied between 10 to 30 words per minute. Thereafter, disciplinary proceedings were initiated by giving chargesheet to her. And when disciplinary proceedings were quashed in the writ petition filed by her, her services have been terminated treating her as a temporary employee.
The conduct of respondent shows that they wanted to get rid of her. In one of tests, her speed was shown to be "zero". In one of test which she had cleared, the disciplinary proceeding were initiated against the person who held the typing test. These facts are sufficient to establish not only malic in law but malice in fact also.
It is well established law that appointment on compassionate ground is offered in relaxation of the requisite eligibility criteria. Once her typing speed has been found to be 30 words per minute at a time, the respondents cannot terminate her services after 15 years on the ground that it was a temporary appointment. Learned Single Judge has allowed writ petition filed against the disciplinary proceedings, with the finding that on such ground petitioner cannot be subjected to disciplinary proceedings. The said judgment has attained finality as no special appeal has been filed against it.
During course of arguments, learned standing counsel has brought to my notice the amendment made in Rule 5 by (Eleventh Amendment) Rules 2014 which was published in U.P. Gazette on 22.1.2014 (with effect from 22.1.2014), whereby it is provided that in case the appointment is to be made on the post for which typewriting is essential qualification and if the applicant/dependant lacks the required proficiency in typewriting, he shall be appointed on the condition that he will acquire the requisite speed within a year, failing which general annual increment shall be withheld. He shall be given one further year to acquire the requisite speed and in case he fails to acquire the said speed, his services shall be dispensed with. For ready reference, the amendment made in Rule 5 is extracted below :
"Provided that in case appointment is to be made on a post for which typewriting has been prescribed as an essential qualification and the dependent of the deceased Govt. servant does not possess the required proficiency in typewriting, he shall be appointed subject to the condition that he would acquire the requisite speed of 25 words per minute in typewriting well within one year and if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the requisite speed in typewriting and if in the extended period also he again fails to acquire the requisite speed in typewriting, his services shall be dispensed with."
The said amendment , in my view, has no application in the present case. From the notification, it is evident that it has been made effective from 22.1.2014. The amendment cannot be operative with retrospective effect. Regard being had to the fact that appointment of the petitioner was made on 30.4.2003, hence the amended rule could not be applicable to her. It is trite law that an amendment cannot be made effective retrospectively if it takes away a vested right. Reference may be made to the judgment of Supreme Court in State of Orissa and others Vs. Saroj Kumar Jena, 2011 (2) SCC 794, Director General of Foreign Trade and others Vs. Kanak Exports and others, 2016(2) SCC 226, Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. And its Esate Officer, AIR 2014 SC 1509 and Kusumam Hotels (P) Ltd. Vs. Kerala State Electricity Board and others, AIR 2008 SC 2796.
In addition to above, the amended rule also indicate that the intention of the rule making authority is that after the extended period if the candidate fails to acquire the requisite speed in typewriting his services shall be dispensed with. In the case in hand, even if the condition of amended rule is made applicable, neither her general annual increment was withheld and she was repeatedly subjected to typing tests on more than two occasions which is not permissible even under the amended rule.
In view of the above, I find that the petitioner is working for more than 14 years and her services cannot be terminated at this distance of time.
After careful consideration of the matter, I am of the view that reasons assigned in the impugned order are unsustainable. Accordingly, the order impugned dated 4.2.2017 is set aside and the respondents are directed to reinstate the petitioner in service forthwith with all consequential benefits.
In the result, the petition succeeds and is allowed.
Having regard to the fact that earlier special appeal of the respondents was dismissed with costs of Rs. 1700/- and that direction of the Supreme Court has not been followed as well as financial status of the petitioner, who happens to be a divorcee, the State is directed to pay cost of Rs. 20,000/- (twenty thousand only) to the petitioner within six weeks.
Order Date :- 20.4.2017 SNT/