Allahabad High Court
Vikas Mishra vs State Of U.P. And Others on 31 October, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 14.09.2018 Delivered on 31.10.2018 Court No. - 34 Case :- WRIT - A No. - 16875 of 2004 Petitioner :- Vikas Mishra Respondent :- State of U.P. and Others Counsel for Petitioner :- Ateeq Ahmad Khan Counsel for Respondent :- C.S.C., Hanuman Upadhyay Hon'ble Sudhir Agarwal,J.
1. Aggrieved by order dated 29.03.2004 issued by Executive Engineer, Minor Irrigation Division, Alopi Bagh, Allahabad (hereinafter referred to as "EEMID, Allahabad") terminating petitioner's services referring to Chief Engineer, Minor Irrigation Division, U.P., Lucknow's (hereinafter referred to as "CEMID, Lucknow") order dated 24.03.2004, whereby office order dated 18.08.2003 was cancelled, present writ petition has been filed by petitioner-Vikas Mishra alleging that he was appointed on compassionate basis, hence said appointment could not have been terminated by treating the same as temporary and referring to U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as "Rules, 1975").
2. Facts, in brief, giving rise to present writ petition are that Sri Manoj Shanker Mishra, father of petitioner, was working as Assistant Boring Technician in the office of EEMID, Allahabad. He died-in-harness in a Car accident on 22.02.1989 leaving behind widow, Smt. Shyama Devi and three sons including petitioner, i.e., Vikas Mishra, Vivek and Vinay. Age of three sons at the time of death of Sri Manoj Shanker Mishra was 9 years, 7 years and 5 years, respectively. Petitioner, after attaining qualification of Intermediate submitted application dated 09.11.1998 requesting for compassionate appointment under the provisions of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the "Rules, 1974"). Since nothing was done, another application was submitted on 08.12.2000. CEMID, Lucknow issued an order dated 18.08.2003 relaxing condition of submission of application within five years from the date of death and required EEMID, Allahabad to pass appropriate order in accordance with Rules for compassionate appointment of petitioner. Consequently on 28.08.2003 EEMID, Allahabad issued letter, appointing petitioner as Junior Assistant in the pay scale of Rs. 3050-4590/-. Letter of appointment states that appointment is temporary and liable to be terminated at any point of time. Pursuant to aforesaid appointment letter dated 28.08.2003 petitioner joined on the post of Junior Assistant on 29.08.2003. Since then petitioner has been working on the post of Junior Assistant. All of a sudden petitioner has been communicated with impugned order dated 29.03.2004 issued by EEMID, Allahabad terminating services of petitioner in purported exercise of power under Rules, 1975 stating further that CEMID, Lucknow vide order dated 24.03.2004 has cancelled office order dated 18.08.2003. It is also stated that petitioner's service is no longer required and he shall be deemed to be terminated after one month from the date of receipt of order dated 29.03.2004.
3. Sri Ateeq Ahmad Khan, learned counsel appearing for petitioner, contended that appointment of petitioner has been made on compassionate basis hence could not be terminated under Rules, 1975 treating his appointment, temporary. It is further submitted that CEMID, Lucknow had no authority to review its earlier order dated 18.08.2003 and to cancel the same by another order dated 24.03.2004, hence consequential termination order passed by EEMID, Allahabad is illegal and patently without jurisdiction. Lastly it is contended that termination of petitioner is also in utter violation of principles of natural justice as no show cause notice was issued to petitioner.
4. Writ petition has been contested by respondents by filing a counter affidavit admitting that pursuant to order issued by CEMID, Lucknow on 18.08.2003, petitioner was appointed by EEMID, Allahabad vide order dated 28.08.2003 on the post of Junior Assistant. It is submitted that in terms of Rules, 1974 request was made to State Government to relax requirement of five years period but no such relaxation was sanctioned by Government, therefore, CEMID, Lucknow vide order dated 24.03.2004 cancelled his earlier order dated 18.08.2003 and as a result thereof petitioner was terminated vide order dated 29.03.2004. Other facts about death of petitioner's father on 22.02.1989 in harness and submission of application by petitioner on 09.11.1998 are not disputed. It is also admitted that under Rule 5(3) of Rules, 1974 competent authority can relax condition of five years and hence on the recommendation made by EEMID, Allahabad vide letter dated 10.03.1999, CEMID, Lucknow granted relaxation vide order dated 18.08.2003. However, since approval was not granted by State Government, CEMID, Lucknow cancelled his order dated 18.08.2003 vide order dated 24.03.2004.
5. In a supplementary affidavit filed by petitioner it is pointed out that during pendency of present writ petition, in view of interim order passed by this Court, petitioner is continuing in service and has been granted benefit of higher pay scale after completion of 10 years of service by office order dated 07.03.2014.
6. Learned Standing Counsel relying on counter affidavit submitted that appointment of petitioner was temporary, therefore, he has no right to hold post and has rightly been terminated by exercising power under Rules, 1975. He placed reliance on a Full Bench judgment of this Court in Sr. General Manager, Ordnance Factory vs. Central Administrative Tribunal and others, 2016(2) ADJ 751.
7. The only question up for consideration in this writ petition is, "whether compassionate appointment under Rules, 1974 could have been made on temporary basis and such appointment could have been terminated in purported exercise of powers under Rules, 1975".
8. I find that on a reference made by a learned Single Judge to a Larger Bench, this issue was considered by a Division Bench consisting of Hon'ble Markandey Katju (as His Lordship then was) and Hon'ble Kamal Kishore, JJ. in Ravi Karan Singh vs. State of U.P. and others, 1999(3) UPLBEC 2263. Earlier there were three Single Judge judgments in Dhirendra Pratap Singh v. District Inspector of Schools and others 1991 (1) UPLBEC 427; Gulab Yadav vs. State of U. P. and others 1991 (2) UPLBEC 995 and Budhi Sagar Dubey v. District Inspector of Schools and others 1993 ESC 21 wherein it was held that an appointment under Rules, 1974 is a permanent appointment. Subsequently a learned Single Judge disagreed with aforesaid three judgments and referred the matter to Larger Bench. In Ravi Karan Singh vs. State of U.P. (supra), Larger Bench upheld the view taken in above three judgments and held that an appointment under Rules, 1974 has to be treated as permanent appointment since compassionate appointment, if treated to be a temporary appointment, it will nullify the very purpose of Rules applicable for compassionate appointment. Larger Bench (Division Bench) also held that in respect of appointment made on compassionate basis Rules, 1975 will not apply. Para 2 of judgment laying down law by Division Bench in Ravi Karan Singh vs. State of U.P. (supra) reads as under:
"2. 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. "
(emphasis added)
9. Above judgment was followed by another Division Bench consisting of Hon'ble S.K. Sen, C.J. and Hon'ble Ashok Bhushan, J. (as His Lordship then was) in Sanjai Kumar vs. Dy. Director General (NCE), Directorate and others, 2002(3) UPLBEC 2748.
10. Another Division Bench in Ram Chandra vs. State of U.P. and others, 2008(2) UPLBEC 1431 again had an occasion to consider this aspect and following judgment in Ravi Karan Singh vs. State of U.P. (supra), Court held that appointments made under Rules, 1974 are of permanent nature hence Rules, 1975 will not be applicable. Relevant exposition of law laid down by Division Bench in Ram Chandra vs. State of U.P. (supra) is reproduced as under:
"It is settled law that the appointments made under the provisions of the U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 are of permanent nature. Since appointment of the petitioner was of permanent nature, the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975 were not applicable."
(emphasis added)
11. Then came fourth decision in Jagdish Narain vs. Union of India and others, 2011(3) UPLBEC 2196 which was a matter not governed by Rules, 1974 and Rules, 1975 applicable to State Government employees but it was a case relating to employment under Central Government. The provisions with respect to compassionate appointment were made by Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training)'s Office Memorandum No. 14014/6/86-Estt. (D) dated 30.06.1987 . One Late Sarwan Lal, father of Jagdish Narain was appointed on probation for a period of two years with the rider that in case his work and conduct during period of probation is found unsatisfactory his services may be terminated. Subsequently when services of Jagdish Narain was found unsatisfactory he was terminated vide order dated 22.09.1994. This termination was challenged in Central Administrative Tribunal in Original Application No. 844 of 1995 which was dismissed. Thereafter matter came to this Court. Relying on three Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra), Division Bench in Jagdish Narain vs. Union of India (supra) held that appointment on probation amounts to a temporary appointment which is not permissible when an appointment is made on compassionate basis and, therefore, condition of probation stated in appointment letter was illegal and of no consequence. Petitioner's appointment on compassionate basis was liable to be treated as permanent in nature, hence termination was bad and with aforesaid findings writ petition was allowed and order of Tribunal as well as termination order were set aside.
12. In a subsequent matter which again arose in respect of employment in Central Government, in Sr. General Manager, Ordnance Factory vs. Central Administrative Tribunal (supra) correctness of judgment in Jagdish Narain vs. Union of India (supra) was examined by a Full Bench on a reference made by a Division Bench disagreeing with Division Bench judgment in Jagdish Narain vs. Union of India (supra). Three questions referred to be considered by Full Bench are as under:
"1. Where a person is granted compassionate appointment as a member of the family of a deceased employee of the government who has died in harness in relaxation of the normal rules for recruitment, is it not necessary that even a compassionate appointee be placed on probation in the first instance, in the same manner as any other direct recruit, since the provision pertaining to appointment on probation has not been excluded or exempted in the case of a compassionate appointment;
2. Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, whether there is any violation of law or principle in appointing a person in this category on probation in the first instance;
3. In view of the clear distinction in service jurisprudence between a regular and a temporary appointee, whether the appointment of a person on a compassionate basis on probation is permissible in law." (emphasis added)
13. Above questions were answered by Full Bench, as under:
"26. We, accordingly, answer the questions which have been referred to the Full Bench in the following terms:
(1) Re Question (1): Where a person is appointed on a compassionate basis as a dependent member of the family of an employee of the State who has died in harness, such an appointment can be made on probation. The object and purpose of appointing a person on probation is to determine the suitability of the person for retention in service. Appointment of a person who is engaged on a compassionate basis on probation is not contrary to law or unlawful.
(2) Re Question (2): Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, such an appointee can be placed on probation in the first instance.
(3) Re Question (3): The appointment of a person on a compassionate basis on probation is permissible in law."
(emphasis added)
14. Reply to Question (2) clearly shows that Full Bench held that appointment on compassionate basis is a regular appointment and is not to be treated as "temporary appointment". In para 18 of judgment Full Bench clearly observed that there is a distinction between appointment on probation and temporary appointment. The relevant observations read s under:
"An appointment on probation does not detract from the nature of the appointment which is to a regular service. Probation is merely an opportunity for the probationer to establish by dint of the work which is rendered during the period of probation, that he or she is suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. There is a well accepted distinction in law and in service jurisprudence between a probationary appointment and a temporary appointment." (emphasis added)
15. Full Bench referred to earlier Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra) and distinguished aforesaid judgments on the ground that in all these matters, issue, whether a compassionate appointment can be made on probation or not was not involved and these three judgments, therefore, considered a different issue and in fact Division Bench in Jagdish Narain vs. Union of India (supra) mistakenly relied on above three judgments omitting the fact that question of appointment on probation was not involved in earlier cases. Full Bench, therefore, overruled Division Bench judgment in Jagdish Narain vs. Union of India (supra) and distinguished earlier three judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra) observing that neither issue nor principle of law enunciated in above three judgments was applicable to the dispute which had arisen in Jagdish Narain vs. Union of India (supra).
16. In view thereof it is evident that Full Bench judgment in Sr. General Manager, Ordnance Factory vs. Central Administrative Tribunal (supra) is not applicable in the case in hand. Instead issue in present writ petition is squarely covered by earlier three Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra) which were in respect of employment in State Government and had considered question of compassionate appointment under Rules, 1974 and have clearly held that in case of such appointments, Rules, 1975 are not applicable since compassionate appointment under Rules, 1974 is of permanent nature.
17. Here also it is not the case of respondents that petitioner's appointment was on probation and has been cancelled since his performance was not found satisfactory. Respondents have clearly relied on the fact that compassionate appointment of petitioner was made on temporary basis and has been terminated by taking recourse to Rules, 1975. This approach of respondents is clearly in the teeth of law laid down in above Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra).
18. Moreover, I also find force in submission of learned counsel for petitioner that once CEMID, Lucknow has granted relaxation, it had no power to recall its order dated 18.08.2003 by a subsequent order dated 24.03.2004 since there is no power of review. In any case, aforesaid relaxation has already been matured in a letter of appointment conferring civil rights upon petitioner, the same could not have been ended by cancelling earlier order and that too without giving any show cause notice or opportunity to petitioner.
19. In view of above discussion, I have no hesitation in holding impugned order, patently illegal and unsustainable in law.
20. In the result, writ petition is allowed. Impugned order dated 29.03.2004 is hereby set aside. Petitioner shall be entitled for all consequential benefits.
Order Date :-31.10.2018 AK