Allahabad High Court
Ajeet Kumar And 7 Others vs State Of U.P. And 2 Others on 12 April, 2017
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 18 Case :- WRIT - A No. - 5039 of 2016 Petitioner :- Ajeet Kumar And 7 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C. Hon'ble Pradeep Kumar Singh Baghel,J.
1. All the eight petitioners have common grievance hence they have joined the petition for quashing the impugned orders dated 13.1.2016 issued separately by the Superintendent of Police, Establishment, U.P. Allahabad to the petitioners rejecting their claim for compassionate appointment on class-III post.
2. Briefly, stated the facts are that the petitioners are dependents of their father who were in the employment of Civil Police. The details of names of their father, their posts and details of their death are mentioned below:
Particulars Designation Date of Death Ram Awadh Ram Father of petitioner no. 1 Constable, District Jaunpur 28/09/08 Ajay Pal Singh Father of petitioner no. 2 Constable in Local Intelligence Unit 10/01/09 Basant Father of petitioner no 3 Cook, Ambedkar Nagar 11/06/08 Nathu Ram Father of petitioner no. 4 Head Constable, Jyotiba Phule Nagar 12/10/10 Rais Ahmad Father of petitioner no. 5 Constable, Rampur 30/07/12 Vipendra Kumar Gautam Father of petitioner no. 6 Firozabad 08/12/12 Budh Ram Father of petitioner no. 7 Driver, Gorakhpur 20/01/11 Devendra Kumar Father of petitioner no. 8 Constable, Ghaziabad 07/12/13
3. It is stated that after the death of their father, their families are living in indigent circumstances as they do not have any alternative source of livelihood. The petitioners have moved applications for their appointment on compassionate ground.
4. The petitioners in paragraph-6 of the writ petition have given details of their applications which they have submitted for their appointment on compassionate ground. They have applied for their appointment to the post of Sub-Inspector (Ministerial)/ Stenographers.
5. It is stated that the U.P. Police Headquarter intimated them that their typing test is scheduled to be held on 11.10.2014 and 12.10.2014 at Police Headquarter, U.P., Allahabad. They were communicated the said dates by individual communications. It is stated that the petitioner nos. 1 to 5 on their scheduled date went to the U.P. Police Headquarter to attend the said test, however, on 11.10.2014 a notice was displayed on the Notice Board of the Police Headquarter that the test scheduled to be held for 11th and 12th October, 2014 has been postponed. In respect of the petitioner nos. 6 to 8 it is averred in the writ petition that they were not issued any notice for appearing in the typing test scheduled to be held on 11/12.10.2014. Their applications remained pending and no date having been intimated to them.
6. On 23.7.2015 the State Government issued a notification and framed the U.P. Police Ministerial Accounts and Confidential Assistant Cadre Service Rules, 2015. The said rules were framed under Section 2 of the Police Act, 1861. The said Rules were, later, amended by the First Amendment Rules, 2016 on 19.10.2016.
7. After the notification of the Rules, 2015 the Police Headquarter-respondent no. 3 issued a notice dated 24.11.2015 notifying the modified procedure for the grant of compassionate appointment in the Police Department. According to the new rules, for the clerical appointment also, a candidate is required to be conformed the Physical Standard Test which was earlier applicable only to the Constables and Sub-Inspectors and not with regard to the Ministerial Staff of the Police Department. Other conditions for regular appointment were also made to the candidates for the compassionate appointment. The respondents by the impugned order dated 13.1.2016 communicated its decision to all the petitioners by separate similarly worded communications that their appointment shall be made in terms of the new Rules, 2015 and it was not possible to appoint them pursuant to the earlier recommendation of the concerned authority on the basis of the pre-existing rules/ practice.
8. Aggrieved by the aforesaid decision, the petitioners have preferred this writ petition.
9. A counter affidavit has been filed, wherein a stand has been taken by the respondents that in view of the amended rules the appointment has to be made under the new Rules, therefore, the petitioner's candidature shall be considered in terms of the existing Rules, 2015 as amended.
10. Learned Counsel for the petitioners Sri Siddharth Khare submits that the procedure laid down in the Rules, 2015 shall not be applicable in the present case to the petitioners as the rules prevailing on the date of death of their father, shall be applicable and not the fresh rules which have come into force much later. He has relied on a judgment of learned Single Judge of this Court in the case of Vikrant Tomar & 5 others v. State of U.P. & 2 others, Writ-A No. 59295 of 2015.
11. Learned Standing Counsel has placed reliance on a judgment of the Supreme Court in the case of State Bank of India v. Raj Kumar, (2010) 11 SCC 661.
12. The question that calls for determination is as to whether the petitioners are entitled to be considered under the old scheme or new Rules of 2015. It is trite that the compassionate appointment is made to provide succour to the family which is living in penury. The object of offering compassionate appointment is to provide a job to a family which has lost its breadwinner, as such the appointment is always made in relaxation of the existing rules. Such appointment is offered out of pure humanitarian consideration with a view that unless some source of livelihood is not provided immediately the family would suffer financial hardship.
13. In the present case the petitioners' father died between 11.6.2008 and 7.12.2013 much before coming into force of the Rules, 2015. In the Rules, 2015 it is not provided that these rules would be applicable with retrospective effect. The Supreme Court in a long line of the judgments has held that once the selection is in progress it will be conducted in accordance with the existing rules and not by the fresh rules, if the rules have been amended. Reference may be made to the judgments of the Supreme Court in the case of Y.V. Rangaiah and others v. State of Andhra Pradesh and another, AIR 1983 SC 852; N.T. Devin Katti and others v. Karnataka Public Service Commission and others, (1990) 3 SCC 157; Ramesh Kumar Choudha and others v. State of M.P. And others, (1996) 11 SCC 242; and, Bishnu Biswas and others v. Union of India and others, (2014) 5 SCC 774.
14. The issue whether the State or its instrumentality have right to tinker with "Rules of the Game" has been considered by the Supreme Court in the case of Tej Prakash Pathak and others v. Rajasthan High Court and others, (2013) 4 SCC 540. The Supreme Court considered its conflicting judgments on this issue in the case of State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 330 and another set of the judgments in K. Manjusree v. State of Andhra Pradesh and another, (2008) 3 SCC 512. The Supreme Court in Subash Chander Marwaha (supra) has held that it is open to the Government to make selection from a number of eligible candidates by fixing much higher standard than the one required as a mere eligibility. The State Government to maintain the high standard of subordinate judiciary at this stage changed the criteria and fixed 55% and above marks. On the basis of the changed criteria only 7 candidates were found to secure 55% or above marks out of 40 candidates. The State Government took a decision to appoint only 7 such persons who have secured 55% or above marks and left the remaining vacancies unfilled.
15. The candidates who had qualified but could not be appointed due to change of the criteria challenged the selection on the ground that the "Rules of the Game" was changed after the game was begun. The High Court opined that after the recruitment process commenced the Government had no right to challenge the Rules. The matter was carried to the Supreme Court. The Supreme Court in Subash Chander Marwaha (supra) set aside the judgment of the High Court and held as under:
"12. ...In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for more (sic mere) eligibility."
16. The judgment of the Subash Chander Marwaha (supra) was not brought to the notice of the Supreme Court in its subsequent decision in K. Manjusree (supra) and a contrary view was taken by the Supreme Court that "once the Games Beguns the Rules cannot be changed".
17. Both the conflicting judgments have been considered by the Supreme Court in Tej Prakash Pathak (supra) and the matter has been referred to a Larger Bench. The Supreme Court in somewhat similar facts had occasion to consider the same issue in the case of Canara Bank and another v. M. Mahesh Kumar, (2015) 7 SCC 412. The facts of the said case are nearer to the facts of the case in hand. A dependent family member of an employee of the Canara Bank moved an application for his appointment on compassionate ground immediately after the death of his father on 10.10.1998 under "Dying in Harness Scheme" which was invoked from 8.5.1993. The Bank rejected the claim. In the meantime the 1993 Scheme was replaced with a new scheme in the year 2005. Vide new scheme the provisions of the compassionate appointment were altogether scrapped and a new scheme of ex-gratia payment was introduced. The case of the dependent was again rejected under the fresh scheme. The issue raised before the Supreme Court was that whether the dependent could be considered under the 1993 Scheme which was replaced by a fresh scheme. The Supreme Court, after considering several judgments on the point, came to hold that the cause of action to be considered for the compassionate appointment in the said case arose when 1993 Scheme was in force thus the Court relying on its judgment in S.B.I. v. Jaspal Kaur, (2007) 9 SCC 571 held that the claim cannot be decided as per 2005 Scheme and the Bank was directed to consider the case of the respondent therein for compassionate appointment as per scheme which was invoked at the time of death of the employee concenred. Relevant part of the judgment in Canara Bank (supra) reads as under:
"17. Applying these principles to the case in hand, as discussed earlier, respondent's father died on 10.10.1998 while he was serving as a clerk in the appellant-Bank and the respondent applied timely for compassionate appointment as per the scheme "Dying in Harness Scheme" dated 8.05.1993 which was in force at that time. The appellant-Bank rejected the respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the respondent. Again on 7.11.2001, the appellant-Bank sought for particulars in connection with the issue of respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular No.154 of 1993 dated 8.05.1993 was in force. Thus, as per the judgment referred in Jaspal Kaur case1, the claim cannot be decided as per 2005 Scheme providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993."
18. Regard being had to the fact that the appointment on compassionate ground is an out of pure humanitarian consideration for a family which finds itself in penury and without any means of livelihood. The offer of the employment to an eligible member enables the family to tide over the sudden crisis relieving the family of financial destitution. Such employment is offerred to a lowest post.
19. The claim for employment on compassionate ground highlights one aspect of the constitutional philosophy. The Supreme Court in Balbir Kaur and another v. Steel Authority of India Ltd. And others, (2000) 6 SCC 493 has observed as under:
"8. ...Can the law courts be a mute spectator in the matter of denial of such a relief to the horrendous sufferings of an employees family by reason of the death of the bread-earner. ..."
20. The Court further cited with approval paragraph-14 of the D.S. Nakara v. Union of India2, which reads as under:
"14. We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight one aspect of the constitutional philosophy and make an attempt to give the philosophy a reality of flesh and blood."
21. Now coming to the facts of this case, the same issue has been considered at length by the learned Single Judge in Vikrant Tomar (supra) and the Court has issued the following directions:
"Therefore, in the totality of the facts of the case and the law laid down by the Supreme Court in M. Mahesh Kumar (supra) in my opinion, since the claim of the petitioners was already pending before the respondents prior to coming into force of the Rules, 2015, the same was required to be considered as per the procedure and Rules existing prior to the coming into the force of the Rules, 2015. So far as the question of undergoing physical efficiency test is concerned that would also have to be with reference to the procedure for compassionate appointment existing prior to the coming into force of the Rules 2015. In the event, the impugned order dated 11.8.2015 is quashed. The writ petition is allowed. The respondents are directed to consider the claim of the petitioners for appointment on compassionate ground in the light of the observations made above within three months from the date of receipt of the certified copy of this order. "
22. Having regard to the facts and circumstances of the case, the orders issued by the respondents which are under challenge in the writ petition, are liable to be set aside. Accordingly, the impugned orders dated 13.1.2016, collectively annexed as annexure-5 to the writ petition, issued to each petitioner, are set aside. The petitioners are entitled to be considered under the old scheme.
23. The writ petition is, accordingly, stands allowed.
24. No order as to costs.
Order Date :- 12.4.2017 Digamber Hon'ble Pradeep Kumar Singh Baghel,J.
Order on C.M. Amendment Application No. 62693 of 2016 Heard.
The amendment application is allowed.
Learned counsel for the petitioners may carry out necessary amendment during the course of the day.
Order Date :- 12.4.2017 Digamber