Allahabad High Court
Janardan Verma And Others vs State Of U.P. And Others on 13 April, 2018
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 13 Case :- WRIT - A No. - 2537 of 2009 Petitioner :- Janardan Verma And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare,Rakesh Kumar Verma Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the petitioners and learned Standing Counsel.
2. The petitioners were offered compassionate appointment as Lekhpal on 14th June, 2005 and 14th February, 2006 respectively.
3. The Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as 'Dying in Harness Rules') framed under Article 309 of the Constitution of India are applicable to the Revenue department and, therefore, the petitioners were rightly appointed taking recourse to the Dying in Harness Rules.
4. Vide order dated 31st August, 2006 passed by the competent authority, the petitioners were directed to undergo training and they completed their training in August, 2007 and written examination was held on 21st August, 2007 and on 25th August, 2007 respectively, thereafter they were relieved on 25st August, 2007 and reported back on duty on 27th August, 2017. However, when the result was declared on 25th August, 2008, the petitioners were not successful in the examination. The petitioners continued even thereafter until vide order impugned dated 18th December, 2008, their services were dispensed with on the ground that they had been not successful in the examination held after training, therefore, they were not eligible to continue on the said post. However, the petitioners were continued in the service and they appeared in the written examination held again in the year 2009 and this time they were successful in the result declared on 12th August, 2010. The result of the Lekhpal examination, 2009 have been appended to the rejoinder affidavit.
5. The argument advanced on behalf of the petitioners is that since under the relevant provisions given under the U.P. Land Records Manual, three chances are given to the Lakhpal training to clear the examination after training and there is no bar that those who were appointed on compassionate ground shall not be offered such privilege, there was no reason for the respondents to have dispensed with the services of the petitioners, while two chances were still available.
6. The relevant pleadings in this regard have been raised in paragraphs 36, 37 and 38 of the writ petition which are quoted as under:-
"36. That the Lekhpal Training Examination is governed by the provisions of U.P. Land Records Manual and there exists detailed provision in this regard under Paragraphs 215 to 230 of U.P. Land Records Manual.
37. That for convenience Paragraphs 225 and 226 of the U.P. Land Records Manual is extracted below:-
^^225- ckgjh vH;FkhZ & ¼1½ lkekU;rk fdlh ckgjh vH;FkhZ dks ys[kiky ijh{kk esa cSBus dh vuqefr ugha nh tk;sxhA fdUrq ml ftys dk ftykf/kdkjh] ftlesa ys[kiky izf'k{k.k fo|ky; fLFkr gksa] ,sls vH;fFkZ;ksa dks ijh{kk esa cSBus dh vuqefr ns ldrk gS] tks ,d o"kZ rd l= esa mifLFkr jgus ds ckn vfUre ijh{kk esa mRrh.kZ u gks ldk gks vkSj ftUgksaus orZeku l= esa fu/kkZfjr le; rd larks"ktud jhfr ls iqu% v/;;u fd;k gks rFkk ftudh mez ijh{kk ds fnukad ij 25 o"kZ ls vf/kd u gks fdUrq fdlh Hkh n'kk esa fdlh ,d izf'k{k.k fo|ky; esa] funs'kd Hkw&ys[k dh vuqefr ds fcuk ,sls vH;fFk;ksa dh la[;k 10 ls vf/kd ugha gksxhA ,sls izR;sd vH;FkhZ dks 20 :i;k ijh{kk 'kqYd nsuk gksxk tks 'kh"kZd ^^ys[kiky izdh.kZ izkfIr;ka** esa tek fd;k tk;sxkA ¼2½ lsok vof/k esa e`r ys[kiky ds vkfJr dks ftldh vLFkk;h :i ls vizf'kf{kr gksus dh n'kk esa fu;qDr fd;k x;k gks ,d o"kZ dh lsok iwjh djus ds ckn ijh{kk esa lfEefyr gksus dh vuqefr ns nh tk;sxhA uksV& ifj"knkns'k la[;k 2654@4&2] ch0@93] fnukad 30&9&1993] }kjk la'kks/ku gks x;k gSA vc fdlh vH;FkhZ dks iwoZ o"kZ dh ijh{kk ds dsUnz ij gh iqu% ijh{kk esa lfEefyr gksus dh vuqefr nh tk;sxhA 226- ijh{kk esa cSBus dh ifjlhek & fdlh vH;FkhZ dks 3 ckj ls vf/kd ijh{kk esa cSBus dh vuqefr ugha nh tk;sxh] tc rd fd mls bl lEcU/k easa funs'kd] Hkw&vfHkys[k }kjk fof'k"V ifjfLFkfr;ksa ls eqDr u dj fn;k x;k gksA fVIi.kh & fof'k"V ifjfLFkfr;ksa ds vo/kkj.k ds fy;s fdlh nSoh vkink vFkok vkdfLed ifjfLFkfr;kWa mRiUu gks tkus ds dkj.k ekufld ruko] yEch vLoLFkrk] ikfjokfjd rFkk vU; ifjgkj ifjfLFkfr;ka ,oa blh izdkj ds vU; dkj.kksa dks vk/kkj ekuk tk;sxk] ftUgsa funs'kd Hkw&vfHkys[k vius foosd ls mi;qDr le>sA
225. Outside candidates- Candidates who have not been educated in the school shall not ordinarily be admitted to the examination. The Officer-in-charge of the school may, however, for special reason, exempt a candidate from this rule if he is certified that such candidate has passed the Junior High School or equivalent or higher examination, is not less than 17 and not more than [twenty-five] years of age on the date of examination and has received adequate instructions elsewhere in the course prescribed for Lekhpal School candidates, but in no case shall the number of such candidates, exceed to from they are served by any one school without the permission of the Director of Land Records. Every such candidate shall pay an examination fee Rs.10.
226. Limit to appearance at examination- No candidate whether educated at the school or not shall be allowed to appear at more than 3 examinations, unless specially exempted by the Director of Land Records. Scholars failing to pass in the third attempt shall be removed from the school.
(English version of the Rule)
38. That paragraph 225 (2) of the U.P. Land Records Manual itself envisages grant of compassionate appointment to untrained persons as Lekhpal with training being imparted subsequently."
7. Learned counsel for the petitioners has further argued that in view of Rule 7 and 8 of the Dying in Harness Rules, it is clear that objective is to give offer of employment in substantive capacity doing away with procedural requirement of written test and interview etc. What is required is that person possesses good mental and bodily health and the character should be such as to render him suitable in all respect for employment in government service. Rule 7, 8 and 9 of Dying in Harness Rules are as under:-
"7. Procedure when more than one member of the family seeks employment - If more than one member of the family of the deceased Government servant seeks employment under these rules, the Head of Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interest of the welfare of the entire family, particularly the widow and the minor members thereof.
8. Relaxation from age and other requirements.- (1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.
(2) The procedural requirements for selection; such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post.
(3) An appointment under these rules shall be made against an existing vacancy only.
9. Satisfaction of appointing authority as regards general qualifications.- Before a candidate is appointed the appointing authority shall satisfy itself that -
(a) The character of the candidate is such as to render him suitable in all respect for employment in Government service;
Note- Persons dismissed by the Union Government or by any State Government or by a Local Authority or a Corporation owned or controlled by the Central Government or a State Government shall be deemed to be ineligible for appointment to the service.
(b) He is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties, for which the candidates shall be required to appear before the appropriate medical authority and to produce a certificate of fitness in accordance with the rules applicable to the case; and
(c) In the case of a male candidate, he has not more than one wife living and in the case of a female candidate, she has not married a person already having a wife living.
8. Per contra, the arguments advanced by learned Standing Counsel is that since they had not been successful in the examination, they were rightly held not eligible to the said posts. Learned Standing Counsel has placed much reliance on the Government order dated 22.01.2004 (Annexure-1 to the writ petition) that provides that in case if a compassionate appointee fails in examination held after training, he will be adjusted against any other Class-III or Class-IV posts as per his qualification.
9. Paragraphs 36 and 37 in which the substantial pleadings were raised with regard to the chances available to candidates who completed training to appear in the Lekhpal written examination for training has not come to be specifically denied in paragraphs 12, 13 and 14 counter affidavit which read as under :-
"12. That, in reply to the contents of paragraph Nos. 32, 33, 34, 35 and 36 of the writ petition, it is further submitted that the services of the petitioners have been terminated due to the reasons that the petitioners have not been qualified the training examination of Lekhpal. It is further submitted that there is specific condition in the Rules of Lekhpal Service Rules that if the candidates has not been trained they have not been appointed as Lekhpal in the department and due to the reasons that the petitioners have not been passed the training examination of Lekhpal, the services of the petitioners has been cancelled by the Competent Authority according to the provisions and Rules and regulation of the Act.
13. That, the contents of paragraph No. 37 of the writ petition are matter of record as such need no comments.
14. That, in reply to the contents of paragraph Nos. 38 and 39 of the writ petition, it is submitted that the there is specific conditions in the rules of the Lekhpal Service that if the candidate has not been passed in the training examination of the Lekhpal, they have not been appointed as Lekhpal in the department."
10. Learned Standing Counsel in order to buttress his argument has referred to Rule 6 of the Lekhpals Service Rules, 1958 (hereinafter referrred as to 'Rules 1958') provide procedure for recruitment. Rule 6 (1), 6 (2), 6 (3), 6 (3-A) and 6 (4) run as under :-
"6. Procedure for recruitment :- (1) For purposes of recruitment, the Collector shall maintain in the following form a list of candidates who have passed the Patwari or Lekhpal School Examination :-
Serial No. Name of candidate with percentage and residence Date of birth Education qualification 1 2 3 4 Year of passing the Patwari or Lekhpal School Examination Total No. marks obtained in the Examination with Division Dates of officiating periods with remarks about work Remarks 5 6 7 8 (2) Necessary material for the maintenance of this list shall be supplied each year, as soon as examination results are out, by the Collector in whose district the Lekhpal School is located. The collector may, subject to the approval of the Director, add to the list so received the name of any other candidate who has passed the Patwari of Lekhpal School Examination.
(3) The names, in the list shall be arranged in order of seniority as determined by the year of examination. Seniority as between the candidates of the same year shall be judged on the basis of the aggregate marks obtained at the examination. Where the aggregate marks are equal, the seniority shall be determined on the basis of age.
(3-A) A district-wise list of ex-patwaris fulfilling the conditions laid down in sub-rule (3) of rule 5 shall be maintained by each Collector. The names in this list shall be arranged according to the length of service. If the length of service of two or more ex-patwaris is the same the names shall be arranged according to age.
Note:- If any list is already maintained in this behalf under executive orders of Government it shall be deemed to be maintained under this sub-rule.
(4) The lists referred to the examination and the Collector shall remove the names of -
(a) Candidates who have received permanent appointment;
(b) Other candidates for good and sufficient reasons to be recorded in writing;
(c) Those candidates in the list prescribed in sub-rule (3) of rule 6 who have exceeded the maximum age-limit for appointment."
11. The argument, therefore, advanced on behalf of the learned Standing Counsel is that these rules are mandatory and, therefore, unless a candidate qualifies the written examination after training, known as Patwari and Lekhpal Schools examination cannot be permitted to be continued on the post of Lekhpal as he did not qualify the requisite examination.
12. Rival submissions fall for consideration.
13. I find that the appointments on the post of Lekhpal has to be made as per procedure proscribed under the Rules, 1958 which provides for a candidate to be appointed after he has undergone training and he qualifies Patwari or Lekhpal Training School Examination. The Land Record Manual vide paragraphs 225 and 226 as applicable for the purposes of admission, training and examination of the Lekhpal School, and, therefore, the position stands clarified that once a candidate successfully completed training, he shall have three opportunities to qualify the written examination which precedes substantive appointment under the Rules, 1958. This being the legal situation even if the petitioners had failed in one examination, it cannot be said that they had no further opportunity to qualify two other examinations, options for which were available to them and they having qualified in the very second opportunity in terms of the rules as per the paragraphs 226 of the Land Record Manual, they were fully eligible to be continued as Lekhpals. Learned Standing Counsel could not dispute the fact that they are given appointment on compassionate ground and they had successfully completed training. Learned Standing Counsel could not dispute that under the Rules applicable to the Lekhpal examination as per the U.P. Land Records Manual, three chances are given to such Lekhpal to clear the examination. It is also not disputed by the learned Standing Counsel that in the subsequent examination held in the year, 2009 of Lekhpal training, the petitioners have successfully cleared the examination.
14. The Government order dated 22nd January, 2004 is, therefore, requires to be read down in the light of the provisions of paragraphs 226 of the U.P. Land Records Manual. If three opportunities are open to candidates after completing training at Lekhpal training School for the purpose of substantive appointment, generally there was no occasion for denial of such opportunity to the petitioners who were appointed on compassionate ground especially and, therefore, the argument that since the petitioners could not qualify one examination, their services were liable to be dispensed with, cannot be accepted. Even otherwise, Dying in Harness Rules are special rules in the category of special law and is an exception to the general rules of recruitment. Rules, 1958 provides for procedure for appointment as Lekhpal, are general service rules for recruitment and the paragraphs 225 and 226 provides for admission to training and examination of Lekhpal candidates under the U.P. Land Records Manual is also applicable as a general rule. When Dying in Harness Rules provide vide Rule 8 for doing away with the written examination for a candidate to be appointed as dependent of the deceased Government servant then such rule is exception to the general rule and, therefore, on the sound principle of law that special law overrides to the general law, even if the petitioners could not qualify the written examination, it was not open for the department to terminate their services. Compassionate appointment is an exceptional appointment as against regular appointment to the general recruitment procedure. Rule 8 of the Dying in Harness Rules clearly provides for relaxation in age as well as other requirements. The rule framed under Article 309 of the Constitution of India shall have overriding effect over the Rules, 1958 and paragraphs 225 and 226 of the U.P. Land Records Manual. Further no amount of Government order can override rules that are statutory in nature and, therefore, the order of termination can not be justified on the ground of Government order dated 22.01.2004.
15. Thus, in my considered opinion, even if the petitioners had not qualified written examination after completion of the training, their services could not have been terminated when still they had two more opportunities to qualify the same. More especially when they were given appointment on compassionate ground. Having qualified written examination subsequently conducted by Lekhpal Training School in 2009 even that criteria also stands fulfilled.
16. In view of the above, the writ petition is allowed. The impugned orders dated 18th December, 2008 and 20th December, 2008 are hereby quashed with all consequential effects.
Order Date :- 13.4.2018 Atmesh