Allahabad High Court
Abhishek Mishra vs High Court Of Judicature At Allahabad ... on 15 September, 2022
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 34 Case :- WRIT - A No. - 14029 of 2022 Petitioner :- Abhishek Mishra Respondent :- High Court Of Judicature At Allahabad And 2 Others Counsel for Petitioner :- Nikhil Kumar,Prashant Kanha Counsel for Respondent :- Ashish Mishra Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Nikhil Kumar, learned counsel for the petitioner and Sri Rahul Agarwal, learned counsel for the High Court / respondents.
2. The prayer of this petition is as under :
(a) issue a writ order or direction in the nature of certiorari calling for the record of the case and quashing the impugned order dated 16.08.2022 passed by the Respondent no. 2 and letter no. 1378/I Agra dated 03.03.2022 written by the respondent no. 2 to respondent no. 1 and report dated 22.02.2022 submitted by the Committee headed by the respondent no. 3 (Annexure 1,2& 3 to the Writ Petition).
(b) issue a writ, order or direction in the nature of mandamus commanding the respondent no. 2 to consider the appointment of the petitioner on any suitable class III post on the compassionate ground as expeditiously as possible preferably within a period of one month or as may be fixed by this Hon'ble Court and pay salary regularly every month to the petitioner.
(c) issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 to decide the representation of the petitioner dated 18.05.2022 in accordance with law as expeditiously as possible preferably within a period of one month or as may be fixed by this Hon'ble Court."
3. The order under challenge is the impugned order dated 16.8.2022 issued by the opposite party no. 2 (Annexure no. 1) offering an appointment to the petitioner on Class-IV post on compassionate ground on the recommendation report of opposite party no. 3 dated 22.2.2022 (Annexure no. 3). The petitioner has also assailed the order dated 3.3.2022 issued by the opposite party no. 2 addressing to the opposite party no. 1 seeking approval of appointment of the petitioner on Class III post. Precisely, the request of the petitioner for seeking appointment under Dying in Harness Rules was placed before the opposite party no 3 i.e. Consultative Committee at Agra which submitted its report on 22.2.2022 before the District Judge, Agra. The District Judge, Agra placed such report before this Court through Registrar General vide letter dated 3.3.2022 seeking approval of the appointment of the petitioner on Class-IV post and thereafter the District Judge, Agra issued an offer of appointment to the petitioner vide letter dated 16.8.2022. Therefore, the foundation of impugned orders dated 3.3.2022 and 16.8.2022 is the report of the Committee dated 22.2.2022.
4. As per the impugned report dated 22.2.2022, though the petitioner has not produced 'CCC Certificate' but he is having qualification of B.C.A. (Bachelor of Computer Application), therefore, it may be presumed that he is having sufficient knowledge of computer application but the petitioner has not produced any document or certificate to show that he is having knowledge of Urdu and Hindi / English typing with the speed of 20/30 words per minute, therefore, his candidature may not be presumed to be sufficient for offering him appointment on Class-III post. Therefore, the petitioner has been offered an appointment on Class-IV post.
5. The precise facts of the case is that the father of the petitioner was serving on the post of 'Personal Assistant' in the office of opposite party no. 2 and after his demise the petitioner approached the competent authority to provide any suitable appointment under the Dying in Harness Rules.
Undoubtedly, the petitioner is otherwise eligible to be appointed on Class-III post as he is having other requisite qualifications but he could not produce any document / certificate to show that he is having knowledge of Urdu and typing certificate showing his knowledge of Hindi / English typing with the speed of 20/30 words per minute so, such appointment has not been offered to him and he has been offered appointment on Class-IV post. Though the impugned report says that the petitioner has not produced any document relating to the knowledge of typing but such document has been filed with this petition which may be perused and considered by the opposite parties.
6. Learned counsel for the petitioner has shown result of petitioner, which is enclosed as Annexure no. 5, relating to the 'Master in Computer Application' (MCA). He has also shown the document / certificate showing that the petitioner has completed the course of English and Hindi typing. So far as the certificate relating to the knowledge of Urdu is concerned the petitioner has clearly indicated in para 15 of the writ petition that the petitioner is having special knowledge of Urdu. In para 15 the petitioner has indicated the reason as to why such certificate has not been produced. As per the petitioner since those documents were not required to be filed, therefore, he could not file those documents. For convenience para 15 reads as under :
"15. That, it is respectfully submitted that the petitioner is having special knowledge of Urdu and the petitioner is also having certificate of typing of Hindi/English as required by the respondent no. 2, however, since no demand of any certificate of typing and special knowledge of Urdu was made from the petitioner and as such, he could not supply the certificate of typing and special knowledge of Urdu. Although, the petitioner supplied the copy of certificate of typing test later on when he obtained the certificate from the Unique Computer Solution, but it appears that the respondent no. 3 has not taken into consideration the certificate of typing course submitted by the petitioner."
7. So as to substantiate the aforesaid arguments learned counsel for the petitioner has drawn attention of this Court towards para 19 explaining the relevant portion of the Rule wherein it has not been indicated that those documents should be produced before the competent authority. For the convenience para 19 is being reproduced herein below :
"19. That, as per the Uttar Pradesh State District Court Service Rules, 2013 for appointment on the post of Junior Assistant following qualifications is prescribed :-
Intermediate with maths with special knowledge of Urdu and Hindi along with a CCC Certificate issued by DOEACC Society and 25/30 words per minute for Hindi/English typing on computer, (as per G.O. No. 1595/VII-Nyaya-2-2011-68G/2011 dated 17.02.2012 (Arithmetic mensuration) elementary land Surveying and Mapping, Order XXVI of Act No. V of 1908 and Rules (Civil) relating to the work and duties of the Junior Assistant."
8. Sri Nikhil Kumar, learned counsel for the petitioner has drawn attention of this Court towards the dictum of Apex Court in re: Suneel Kumar vs. State of U.P. & others reported in 2022 Live Law (SC) 675 referring para 10 which reads as under :
"10. At the same time, as far as the question relating to the entitlement as it were of the appellant to be considered to the post of Gram Panchayat Officer is concerned, it is without doubt a post borne in Class-III. The father of the appellant was working as a Sweeper borne in Class-IV post. We have noticed the view taken by this Court in Premlata (supra). In other words, the law as declared is to the effect that the words "suitable employment" in Rule 5 must be understood with reference to the post held by the deceased employee. The superior qualification held by a dependent cannot determine the scope of the words "suitable employment".
[Emphasis Supplied]
9. Per contra, the learned counsel for the High Court has submitted that the opposite party nos. 2 and 3 has taken a liberal approach considering the other qualifications of the petitioner sufficient but since he could not produce any document / certificate showing his knowledge of Urdu and typing in Hindi and English, therefore, he may not be provided any appropriate appointment in Class III post.
10. On being confronted the learned counsel for the High Court on the point that if the petitioner produces those documents with expedition, as to whether any appropriate decision may be taken considering his qualification and suitability in the light of dictum of Apex Court in re: Suneel Kumar (supra), learned counsel for the High Court has submitted that if the petitioner would be fulfilling all requisite conditions bringing on record the required documents, the competent authority may consider his case strictly in accordance with law, if this Court so directs.
11. Heard learned counsel for the parties and perused the material available on record.
12. Notably, it it not disputed that the petitioner is otherwise eligible to be considered for appointment on Class- III post so he may be offered such appointment under Dying in Harness Rules in view of the dictum of Apex Court in re: Suneel Kuamr (supra).
13. The analogy of para 10 of the judgment in re: Suneel Kumar (supra) is that the term "suitable appointment" so indicated in Rule 5 should be understood with the reference to the post held by the deceased employee and in the present case since the deceased employee was holding Class-III post, therefore, any suitable appointment to his dependent should be given in the same category if the petitioner is having all required qualifications.
14. The qualification of the petitioner is Masters in Computer Application (MCA) and he has got knowledge of Hindi and English typing. As per learned counsel for the petitioner he can produce the document / certificate showing that he has got knowledge of Urdu.
15. In view of the specific recital vide para 15 and 19 of the petition, the required documents, so enclosed with the writ petition as well as the dictum of Apex Court in re: Suneel Kumar (supra), I find it appropriate that the liberty be given to the petitioner to furnish all required documents before the opposite parties including any document / certificate relating to his knowledge of Urdu as well as of Hindi & English typing with required speed within a period of two weeks from today supporting with an exhaustive representation and if such representation along with the required documents is produced before the concerned opposite party, the appropriate decision shall be taken in favour of the petitioner in view of what has been considered and directed above and any suitable appointment shall be provided to the petitioner strictly in accordance with law with expedition preferably within a period of four weeks thereafter.
16. In view of the aforesaid observations and directions, I also find it appropriate that the impugned report dated 22.2.2022 passed by the opposite party no. 3 i.e. Chairman, Consultative Committee / 1st Additional District Judge, Agra as well as the consequential letters / orders dated 3.3.2022 and 16.08.2022 are hereby set aside and quashed and a fresh decision shall be taken strictly in accordance to law in terms of the aforesaid directions within aforesaid stipulated time.
17. Accordingly the writ petition is allowed.
18. No order as to costs.
.
(Rajesh Singh Chauhan, J.) Order Date :- 15.9.2022 Om.