Allahabad High Court
Sri Niwas vs Registrar, Firms, Societies & Chits & ... on 7 November, 2013
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD In chamber A.F.R. Reserved on- 25.10.2013 Delivered on- 7.11.2013 Case :- WRIT - A No. - 5558 of 2003 Petitioner :- Sri Niwas Respondent :- Registrar, Firms, Societies & Chits & Another Counsel for Petitioner :- P.N. Ojha Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
1. By this writ petition, the petitioner has prayed for the following relief :
i.issue a writ, order or direction in the nature of certiorari quashing the order dated 14.01.2003 passed by the Registrar, Firms, Societies & Chits, UP, Lucknow (Annexure 6 to the writ petition)ii.
ii.issue a writ, order or direction of a suitable nature commanding the respondents not to interfere in the functioning of the petitioner as a Clerk under the respondent and to pay the petitioner his full monthyly salary on the said post, regularly, every month.
iii. issue a writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the circumstances of the case.
iv.award cost to the humble petitioner throughout of the present writ petition.
2. Briefly stated the facts of the present case are that the father of the petitioner Late Hari Ram was a Class IV employee in the office of respondent no.2. He died on 15.9.1995 while in service. The petitioner applied on 25.11.1995 for appointment on compassionate ground and he was appointed as Chowkidar vide order of the Registrar dated 23.12.1995 (Annexure no.2). Thereafter vide application dated 14.3.1996 (Annexure no.3) followed by another application dated 8.8.1997 (Annexure no.4), the petitioner represented before the respondent no.1 to appoint him as Clerk, since his qualification is intermediate. It appears that the aforesaid representation dated 14.3.1996 was sent through the respondent no.2 who forwarded it to the respondent no.1 vide his letter (Annexure no. CA-2). Vide letter dated 24.8.1996 (Annexure no.3) the respondent no. 1 communicated that there is no vacancy in the category of Clerk and the petitioner was appointed on the post which fell vacant due to death of his father. It appears that on the subsequent representation of the petitioner dated 8.8.1997 (Annexure no.4), the respondent no. 1 sought guidance of the State Government vide letter no. 2370 dated 14.8.1997 on the issue whether the petitioner may be appointed in Class IV. Thereupon the State Government vide letter dated 24.9.1998 (Annexure no. CA-5) communicated to the respondent no.1 that the petitioners case for the appointment on the post of Clerk may be considered if there is vacancy subject to the condition that It is outside the purview of Public Service Commission.
3. It appears that without there being any vacancy in the category of 'Clerk' the respondent no.1 appointed the petitioner vide order dated 14.5.2002 (Annexure no.5) with effect from 23.12.1995 by creating an additional post in Class-III. Subsequently, the respondent no.1 withdrew the creation of additional post and restored the original appointment of the petitioner, vide order dated 14.1.2003 (Annexure no.6). Aggrieved with this order the petitioner has filed the present writ petition.
4. In paragraph 4 of the counter affidavit of Sri Sushil Kumar, Deputy Registrar, Firms, Societies and Chits, Meerut filed on behalf of respondents and it is stated that the petitioner was appointed under dying in-harness rule. His application dated 25.4.1995 did not contain any document relating to his knowledge of typing which is essential for the purpose of appointment on the post of Clerk. In paragraph-6 of the counter affidavit, it is stated that the petitioner accepted his appointment in Class-IV without any protest and, therefore, subsequent demand for appointment in Class-III was not correct. In paragraph-8 of the counter affidavit that the petitioner was appointed on the post which became vacant due to death of his father. In paragraph-9 of the counter affidavit, it is stated that when the letter dated 14.5.2002 was issued appointing the petitioner as Clerk, there was no vacant post of Clerk and the petitioner was appointed on excess post which was beyond the competence of the authority concerned. The creation and abolition of the post is prerogative of the State Government which neither created nor directed the creation of any excess post as done by the respondent no.1 and thus the respondent no.1 authority exceeded its jurisdiction by creating a post of clerk without authority of law and thus, the order was non est. In paragraph-12 of the counter affidavit, it is stated that the petitioner was appointed on compassionate ground due to death of his father in Class-IV post without any pre condition or protest by the petitioner and the said appointment was made for the purpose of saving the family of the deceased from immediate distress. The petitioner was not entitled for appointment on Class-III post.
5. I have heard Sri Prateek Chandra, Advocate holding brief of Sri Ashok Khare, learned counsel for the petitioner and Sri Brijesh Kumar Yadav, learned counsel for the respondents and perused the record.
6. Learned counsel for the petitioner submitted that the appointment of the petitioner on the post of Clerk under letter dated 14.5.2002 issued by the respondent no.1 was arbitrarily and illegally cancelled by the respondent no.1 vide letter dated 14.1.2003 (Annexure no.6). It is submitted that the impugned order dated 14.1.2003 is unreasoned and has been passed without affording any opportunity of being heard. It is violative of principles of natural justice. He relied on the following judgments :-
(i)M.S. Usmani & Others Versus Union of India & Others (19950 2 SCC 377,
(ii)Single Judge Juudgement of Rajasthan High Court dated 8.12.1980 in S.B. Civil Writ Petition No. 1769 of 1980 Mangi Lal & Others Vs. Union of India & Others,
(iii)Smt. Sushma Gosain & Others Versus Union of India and others, AIR 1989 SC 1976.
7. On the other hand the learned Standing Counsel submits that the petitioner was appointed on the post of Chowkidar which is Class-IV post and which fell vacant due to death of his father. His appointment was made on compassionate ground as per rules. The appointment on compassionate ground is an exception to the general rule of recruitment. Such an appointment is given under the exceptional circumstances and only in accordance with the provisions of compassionate appointment. He submits that the creation of post of Clerk and appointment of the petitioner by the respondent no.1 vide letter dated 14.5.2002 (Annexure no.5) was wholly without authority of law. The power to create a post vests only in the State Government. The respondent no.1 has no authority to create a post and to upgrade the petitioner by giving him appointment in Class-III with retrospective effect. Such an action of respondent no.1 was wholly without authority of law and thus non est. He submits that there was no vacancy in Class-III and therefore, the petitioner could not have been appointed as Clerk by respondent no.1. He further submits that the petitioner does not have knowledge of typing which is an essential qualification for the post of Clerk. He has relied on the following judgments : -
(i)Shyama Prasad Vs. State of U.P., 2005 (2) UPLBEC 2109,
(ii)Smt. Alka Mishra Vs. Deputy Director of Education ( Secondary), 2004 (2) A.W.C. 1153,
(iii)Om Prakash Vs. Superintending Engineer, 2000 (2) E.S.C. 1383.
8. I have considered the submissions of learned counsel for the parties. The averments in paragraph-4,8 and 9 of the counter affidavit to the effect that the petitioner was appointed on the post of Chowkidar on compassionate ground which fell vacant due to death of his father, that there was no vacancy in Class-III, that the petitioner does not have knowledge of typing which is essential qualification for the post of Clerk, that the letter of appointment on the post of Clerk dated 14.5.2002 was issued by the respondent no.1 wholly without authority of law and was thus non est, that the respondent no.1 was not having power to crate excess post of Clerk which power vests only in the State Government and the State Government has not directed the respondent no.1 to do so, have not been specifically denied by the petitioner in paragraphs no.-3, 6 and 7 of the rejoinder affidavit. The fact that the respondent no.1 has created one additional post of Clerk and issued the appointment letter dated 14.5.2002 to the petitioner without authority of law and that the petitioner was not having the knowledge of typing which is essential qualification for appointment on the post of Clerk and there was no vacancy in Class-III, are wholly undisputed. Thus, the appointment order dated 14.5.2002 was issued wholly without authority of law and therefore, it was rightly recalled by the impugned order dated 14.1.2003. The learned counsel for the petitioner has completely failed to show any provision/evidence to establish that either the respondent no.1 was having power to create additional post of Clerk or that the petitioner has any right to the post of Clerk. There is no evidence on record that the petitioner possessed minimum required qualification for the post of Clerk. In view of these undisputed facts the recall of the impugned order dated 14.1.2003 neither violated the principles of natural justice nor it can be said to suffer from any arbitrariness or illegality.
9. In the case of M. S. Usmani (supra) relied by the learned counsel for the petitioner, the controversy was "whether the appellants who were selected and appointed by a competitive examination against 10% quota reserved for graduates and were even promoted to a higher scale of pay could have been reverted subsequently, on assumption that entire process of selection and appointment was against the rules." Considering the fact that such persons were reverted after six years from the date of their selection, the Hon'ble Supreme Court held that reversion was not warranted and thus allowed the appeal without deciding the larger issue and not as precedent. None of facts as involved in this judgement exist in the present case. In the case of Mangilal (supra) the facts were entirely different. In the case of Smt. Sushma Gosain (supra) the Hon'ble Supreme Court held that rejection of application for compassionate appointment delayed in view of ban subsequently imposed was held to be arbitrary. These judgements relied by learned counsel for the petitioner have no bearing on the facts of the present case.
10. There is another aspect of the matter. Petitioner's father was Class IV employee and the petitioner was appointed in Class IV on compassionate ground on 23.12.1995. He accepted this appointment without protest and joined the service. Thus once the appointment of the petitioner on compassionate ground was made in Class IV and the petitioner accepted the same, the facility of the compassionate appointment stood exhausted. The petitioner cannot lay further claim for appointment on compassionate ground on the post of Clerk. The compassionate appointment is available as per provisions of the rules only for once and not "endless compassion".
11. In the case of State of Rajasthan Vs. Umrao Singh, (1994) 6 SCC 560 the Hon'ble Supreme Court held in para 8 and 10 as under :
" 8. Admittedly the respondent's father died in harness While working as Sub- Inspector, C.LD. (Special Branch) on 16 3.1988. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub- Inspector or L.D.C, according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of L.D.C. by order dated 14.12.1989, He accepted the appointment as L.D.C. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise: Otherwise, it would be a ease of 'endless compassion'. Eligibility to be appointed as Sub-Inspector Of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this ease.
10. It is true that in the decision cited, the direction by the High Court was a positive direction to make the appointment but here the direction was to consider the ease. Nevertheless, we find that the High Court was not legally justified in directing a further consideration of the candidature of the respondent for the post of Sub-Inspector. The Civil Appeal will stand allowed and in reversal of the orders of the courts below respondent's writ petition is dismissed. There shall be no order as to costs."
12. Public employment is considered to be a wealth. Appointment on compassionate ground is an exception which is given to a dependent of the deceased employee only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. The idea is not to provide for endless compassion. The authority cannot temper benediction impelled by sympathetic consideration to make the appointments on compassionate grounds when such appointment is governed by the rules framed by the State Government. After obtaining compassionate appointment on a post the petitioner cannot be permitted to turn round and contend that he should have been given a higher post . The relaxation given by way of compassionate appointment under the rules can be exercised only for once and not thereafter. In the case of I.G. (Karmik) Vs. Prahlad Mani Tripathi (2007) 6 SCC 162, the Hon'ble Supreme Court has observed in paragraphs 7, 10 and 12 as under :
" 7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.
10.Again in State of Haryana V. Ankur Gupta this Court held : (SCC p.707, para 6) As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (JT 1996 (6) SCC 646), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi's case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
12.Furthermore, Appellant accepted the said post without any demur whatsoever. He, therefore, upon obtaining appointment in a lower post could not have been permitted to turn round and contend that he was entitled for a higher post although not eligible therefore. A person cannot be appointed unless he fulfils the eligibility criteria. Physical fitness being an essential eligibility criteria, the Superintendent of Police could not have made any recommendation in violation of the rules. Nothing has been shown before us that even the petitioner came within the purview of any provisions containing grant of relaxation of such qualification. Whenever, a person invokes such a provision, it would be for him to show that the authority is vested with such a power."
13. In the case of Shyama Prasad Vs. State of U.P. reported in laws (All.)2005- 4 - 121, relied by learned Standing Counsel; this Court has taken the view that once an appointment has been given to a person on compassionate ground no further appointment can be given to him under the dying in-harness rule. The authority was justified in cancelling the order and no opportunity was required to be given to the petitioner. In the case of Alka Mishra Vs. Deputy Director of Education (Secondary) reported in laws (All.)-2003 - 12 - 164, this Court has held in para- 2 as under :
" 2. After hearing the learned counsel for the petitioner, I am of the view that the provision of compassionate appointment does not create a vested right in the legal heir of the deceased employee. The whole object of granting compassionate employment is to enable the family to get over the sudden crisis. The object is not to get the member of such family a post much less a post for post held by the deceased. In Haryana Electricity Board V. Naresh Tanwar and Anr., JT 1996 (2) SC 542, it has been held by the Supreme Court that the compassionate employment is not a vested right. It is an exception to a general rule. The object of compassionate appointment is to get the immediate relief to the family of the deceased and it is not a legal right. In Maya Devi V. D.I.O.S., Itawah, 1998 (3) AWC 2.161(NOC): 1998 (3) ESC 14 and Manish Mishra V. State of U.P. 1998 (3) ESC 1877, it was held by this Court that if a person accepts the appointment on class IV post and joins, his claim under the Rules comes to an end. The rules do not provide to any subsequent change after the amendment of the Rules by Saying that those persons who had already been appointed, they shall be considered afresh for appointment on compassionate ground to that post. In Pankaj Kumar Srivastava V. D.I.O.S., 1994 (2)ESC 648, it was held by this Court that the petitioner cannot claim as a matter of right appointment befitting his qualifications.
The petitioner cannot claim any advantage of the judgment as contained in Annexure-8 because in the referred petition aforesaid decisions of the Supreme Court and the High Court were not cited at the Bar."
14. In view of the foregoing discussion, I am of the view that the impugned order dated 14.1.2003 does not suffer from any illegality. The writ petition is wholly devoid of merit and, therefore, deserves to be dismissed.
15. In result the writ petition fails and is hereby dismissed. However there shall be no order as to the cost.
Order Date : 7.11.2013 Ashish Prasad