Allahabad High Court
Aditya Pratap Singh vs State Of U.P. And 2 Others on 27 February, 2018
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 8 Case :- WRIT - A No. - 62798 of 2017 Petitioner :- Aditya Pratap Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,V.B. Misra Hon'ble Salil Kumar Rai,J.
1. Heard Shri Prabhakar Awasthi, learned counsel for petitioner, Shri V.B. Mishra, learned counsel representing respondent No. 4 and learned Standing Counsel representing respondent Nos. 1 and 2.
2. Shri Shyamacharan, father of the petitioner was a Lecturer in Gurukul Mahavidyalaya, Rudrapur, Telhar, District-Shahjahanpur (hereinafter referred to as, 'College'), which is affiliated to Sampurnanand Sanskrit Vishwavidyalaya, Varanasi (hereinafter referred to as, 'University'). Shri Shyamacharan died on 19.5.2012 while still in service. The petitioner completed his M.A. (English) in the year 2014. After completing his M.A. (English), petitioner filed an application before respondent No. 3 i.e. Committee of Management of the College for appointment as Assistant Teacher in the College in place of his father under the Dying-in-Harness Rule provided in the Statutes of the University. The aforesaid application submitted by the petitioner was dismissed by respondent No. 3 vide its order dated 16.3.2015 on the ground that by virtue of Statutes 21.06 (3) of the Statutes, the petitioner was not entitled for appointment on any teaching job in the College on compassionate grounds. It appears from the record that Director of Education (Secondary), U.P., Allahabad vide his letter dated 15.4.2015 directed the respondent No. 2 i.e. District Inspector of Schools, Shahjahanpur (hereinafter referred to as, 'D.I.O.S.') to consider the case of the petitioner for appointment as prayed by him. When no action was taken by respondent No. 2, the petitioner filed a Writ Petition (Writ A No. 25054 of 2015) in this Court, in which this Court vide order dated 1.5.2015 directed the respondent No. 2 to consider and decide the representation of the petitioner within six weeks from the date of filing a certified copy of the said order.
3. A perusal of the order dated 1.5.2015 passed by this Court, which is annexed as Annexure No. 6 to the writ petition, shows that the Court has not referred to the order dated 16.3.2015 passed by respondent no. 3. However, respondent No. 2 vide his order dated 8.7.2015 also rejected the claim of the petitioner for appointment as Assistant Teacher in the College on the ground that the petitioner could not be appointed on a teaching job in the College on compassionate grounds in view of the prohibition contained in Statutes 21.06 (3) of the Statute of the University. It appears that the order dated 8.7.2015 was never challenged by the petitioner as no averment regarding challenge to the aforesaid order has been made in the writ petition. Subsequently, a Government Order dated 18.9.2017 was issued adopting the U.P. Recruitment of dependants of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as, Rules, 1974') for the dependants of employees of Government aided Sanskrit Institutions affiliated to the University and recognized by the Uttar Pradesh Madhyamik Sanskrit Shiksha Parishad. It has been stated by counsel for the petitioner that by virtue of the aforesaid Government Order dated 18.9.2017, petitioner became entitled to be considered for appointment as Assistant Teacher in the College as under the Rules, 1974, the dependant of a deceased employee is entitled to a suitable employment according to his educational qualifications. Under the aforesaid impression of law, the petitioner again on 28.9.2017, applied for appointment as Assistant Teacher in the College. However, the aforesaid application submitted by the petitioner has also been dismissed by the D.I.O.S. vide his order dated 24.11.2017 on the ground that the application dated 28.9.2017 submitted by the petitioner was time barred as the time difference between the death of the father of the petitioner and the second application filed by him was more than five years and under the Rules, 1974, the petitioner had to submit his application within five years from the date of death of his father. The order dated 24.11.2017 passed by respondent No. 2 has been challenged in the present writ petition.
4. Contention of the counsel for the petitioner is that the petitioner became entitled for appointment to the post of Assistant Teacher only after the Government Order dated 18.9.2017 was issued adopting the Rules, 1974 for the dependants of employees of Sanskrit Colleges affiliated to the University and therefore the order dated 24.11.2017 passed by respondent No. 2 is erroneous and illegal so far as it dismisses the application of the petitioner on grounds of delay. It has been further argued by the counsel for petitioner that in his order dated 24.11.2007, respondent No. 2 has not considered that it was a fit case where the delay in filing the application should have been condoned as provided in the Proviso to Rules 5 of Rules, 1974 and respondent No. 2 has illegally refused to exercise his power to relax the time limit as provided in the proviso. Controverting the submission of the counsel for the petitioner, the counsel for respondent No. 4-University has argued that by virtue of Statute 21.06(3) of the Statutes of the University the petitioner was not entitled for appointment as Assistant Teacher in the College. It has been argued by the counsel for University that the application dated 28.9.2017 filed by the petitioner was not maintainable and was liable to be rejected on merits as it was filed claiming appointment as Assistant Teacher in the College. It has been further argued by the counsel for the University that because the application dated 28.9.2017 was liable to be rejected on merits, therefore, it would have served no useful purpose in relaxing the time limit for filing an application seeking appointment on compassionate ground. The counsel for the University has argued that in view of the aforesaid, the writ petition is also liable to be dismissed as no substantial relief can be granted to the petitioner.
5. Considered the submission of learned counsel for the parties.
6. A perusal of Government Order dated 18.9.2017 shows that Rules, 1974 have been adopted for dependants of employees of colleges affiliated to the University. Relevant Provisions of Rules, 1974 are similar to Statute 21.06(5) of the Statutes of the University, which provide for appointment of the dependant of a deceased employee on compassionate grounds. Statute 21.06(5) of the Statutes of the University and Rule 5 of Rules, 1974, are reproduced hereinbelow :-
Statues 21.06(5) of the Statutes of the University "3- ;g fu;ekoyh mu lsokvksa vkSj inksa dks NksM+dj] ftu ij fo'ofo/kky; vf/kfu;e vkSj ifjfu;e esa fu/kkZfjr izfdz;k ls fu;qfDr;kWa dh tkrh gSa] fo'ofo/kky;@egkfo/kky; dh lsokvksa vkSj inksa ij e`rd fo'ofo/kky;@egkfo/kky; ds lsodksa ds vkfJrksa dh HkrhZ ij ykxw gksxhA 5¼1½ ;fn bl fu;ekoyh ds izkjEHk gksus ds i'pkr~ fdlh fo'ofo/kky;@egkfo/kky; lsod dh lsokdky esa e`R;q gks tk;] rks mlds dqVqEc ds ,sls ,d lnL; dks] tks dsUnzh; ljdkj ;k jkT; dh lsok esa ;k mlds LokfeRok/khu ;k mlds }kjk fu;fU=r fdlh fudk; ds v/khu ;k fo'ofo/kky;@egkfo/kky; esa igys ls lsok;ksftr u gks] bl iz;kstu ds fy, vkosnu djus ij HkrhZ ds lkekU; fu;eksa dks f'kfFky djrs gq, fo'ofo/kky;@egkfo/kky; lsok esa mi;qZDr lsok;kstu iznku fd;k tk;xk& ;fn ,slk O;fDr %& ¼1½ in ds fy;s fofgr 'kSf{kd vgZrk j[krk gks] ¼2½ vU; izdkj ls fo'ofo/kky;@egkfo/kky; lsok ds fy;s vgZ gk]s vkSj ¼3½ fo'ofo/kky;@egkfo/kky; lsod dh e`R;q ds fnukad ls ikap o"kZ ds Hkhrj lsok;kstu ds fy;s vkosnu djrk gS A ijUrq tgka fo'ofo/kky;@egkfo/kky; dk ;g lek/kku gks tk;s fd lsok;kstu ds fy;s vkosnu djus ds fy, fu;r le;&lhek ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ gksrh gS] ogka o mu vis{kkvksa dks] ftUgsa og ekeys esa U;k;laxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh djus ds fy;s vko';d le>s] vfHkeqDr ;k f'kfFky dj ldrk gSA 5¼2½ ,slh ukSdjh fo'ofo/kky;@ml egkfo/kky; es nh tk;xh] tgkWa e`rd lsod viuh e`R;q ds iwoZ lsok;ksftr FkkA"
Rules 5 of Rules, 1974 "5. Recruitment of a member of the family of the deceased. - (i) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person-
(i) fulfils the educational qualifications prescribed for the post,
(ii) is otherwise qualified for Government service, and
(iii) makes the application for employment within five years from the date of the death of the Government servant:
Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.
(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.
(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependant on the deceased Government servant immediately before his death and are unable to maintain themselves.
(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."
A reading of both the provisions show that there is no material difference between the two so far as entitlement of a dependant of the deceased employee for appointment to a particular post is concerned. It has been argued by learned counsel for the petitioner that Rule 5 of Rules, 1974 provide that a candidate, i.e. dependant of the deceased employee, shall be given a suitable appointment according to his educational qualifications and, therefore, the petitioner was entitled to be considered for appointment as Assistant Teacher in the college on compassionate grounds. Statute 21.06(5) of the Statutes of the University and Rule 5 of Rules, 1974, as stated earlier are similar, and therefore, any interpretation of Rule 5 of Rules, 1974 would also apply on Statute 21.06 (5) of the Statutes of the University.
It is settled law that appointment on compassionate grounds are made to enable the families of the deceased employee to tide over the immediate financial crisis caused due to the death of the employee while still in service. Secondly, Provisions relating to appointment on compassionate grounds are exceptions to the ordinary process of recruitment and have to be restricted to appointments on posts in lower category, i.e. Class III and IV posts. As a corollary, the 'Dying-in-Harness Rules' cannot be interpreted in a manner which enables the dependant to circumvent the regular procedure of appointment to crucial posts. In V. Sivamurthy & Another Vs. State of Andhra Pradesh & Others (2008) 13 SCC 730, the Supreme Court, in paragraph No. 18 of the Reports, summarised the principles relating to compassionate appointments. Paragraph No. 18 of the judgement is reproduced below :-
"18. The principles relating to compassionate appointments may be summarized thus :
(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.
(b) Two well-recognized contingencies which are carved out as exceptions to the general rule are :
(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service.
(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner.
Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project affected persons. (Particularly where the law under which the acquisition is made does provide for market value and solatium, as compensation).
(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.
(d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, class III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts."
(Emphasis added)
7. In light of the aforesaid propositions, I am unable to agree with the counsel for petitioner regarding interpretation of Rules 1974 or consequently of Statute 21.06(5) of the Statutes of the University. The aforesaid provisions merely mean that dependant of a deceased employee shall be given a suitable appointment provided he possessed the minimum educational qualifications for the same and fulfills other requirements as stated in the provisions. The aforesaid cannot be interpreted to mean that the dependant of the deceased shall necessarily be given appointment commensurate with or corresponding to his educational qualifications. Further the Government Order dated 18.9.2017 does not and could not have repealed or overridden Statute 21.06(3) of the Statutes of the University which prohibit appointment on compassionate grounds on posts on which procedure of appointment is governed by the Statutes which includes the post of Assistant Teacher in any college affiliated to the University. In view of the aforesaid, the prayer of the petitioner for appointment as Assistant Teacher in the College was liable to rejected on merits and was not maintainable and was rightly rejected by order dated 16.3.2015 passed by respondent No. 3 and order dated 18.7.2015 passed by respondent No. 2. In case the argument of learned counsel for petitioner is accepted, the petitioner was entitled to challenge the order dated 16.3.2015 passed by respondent No. 3-Committee of Management of the College and order dated 18.7.2015 passed by respondent No. 2, which as stated earlier were not challenged by him.
8. The impugned order dated 24.11.2017 passed by respondent No. 2 rejects the application dated 28.9.2017 filed by the petitioner on grounds of delay in filing the said application. The said application was filed by the petitioner praying for appointment as Assistant Teacher in the College relying on the Government Order dated 18.9.2017 read with Rule 5 of Rules, 1974. As held earlier, the prayer by the petitioner for appointment as Assistant Teacher was not maintainable either under Statute 21.06(5) of the Statutes of the University or Rule 5 of Rules, 1974 as they are similar and have the same bearing so far as they relate to entitlement of a dependant of a deceased employee for appointment, on compassionate ground, to a particular post. Consequently, the application dated 28.9.2017 submitted by the petitioner for appointment as Assistant Teacher in the College was not maintainable. In view of that legal position, it would be a mere academic exercise to examine the legalities of the order dated 24.11.2017 passed by respondent No. 2 whereby he has rejected the application dated 28.9.2017 filed by the petitioner on the ground that it was filed after the five years period prescribed in Rules, 1974 had expired. Even if the respondent No. 2 had relaxed the time limit in filing the application, the application dated 28.9.2017 filed by the petitioner was liable to be rejected on merits as the prayer for appointment as Assistant Teacher in the College was not maintainable. In view of the aforesaid, the prayer of the petitioner in the writ petition to quash the order dated 24.11.2017 passed by respondent No. 2 and to command him to confer appointment in favour of the petitioner on the post of Assistant Teacher in the College are rejected.
9. However, considering the fact that the petitioner filed an application for appointment as Assistant Teacher on compassionate grounds under an erroneous impression regarding his entitlement under the law, it would be appropriate in the interest of justice, that if the petitioner files an application before respondent No. 3 i.e. Committee of Management of the College for appointment to a Class III/IV post in the College, the same shall be considered by respondent No. 3 in accordance with law. The application shall be filed by the petitioner within three months from today and shall be decided by respondent No. 3- Committee of Management of the College by a reasoned order within three months from the date of filing the said application.
10. With the aforesaid observations, the present writ petition is disposed of.
Order Date :- 27.2.2018 Anurag/-