Allahabad High Court
Rohitash Verma vs State Of U.P. Thru. Prin. Secy., Home ... on 11 April, 2018
Equivalent citations: AIRONLINE 2018 ALL 5135
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 17 Case :- SERVICE SINGLE No. - 9713 of 2018 Petitioner :- Rohitash Verma Respondent :- State Of U.P. Thru. Prin. Secy., Home Deptt. & Ors. Counsel for Petitioner :- Rakesh Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Irshad Ali,J.
Heard learned counsel for the petitioner and to the learned Additional Chief Standing Counsel for the respondent nos. 1 to 5.
By means of the present writ petition, the petitioner is challenging the order dated 15.3.2018, passed by the respondent no.3 and the communication order dated 22.3.2018, passed by the respondent no.4, whereby the claim of the petitioner for grant of appointment on the post of Sub-inspector (Civil Police) has been turned out and direction has been issued giving consent for the appointment of the petitioner as constable or Class-IV post.
The father of the petitioner was holding the post of Constable (Civil Police) in District Gonda, who died while in service on 29.10.2008. The qualification of the petitioner is Bachelor of Arts (B.A) from a recognized university and applied for the appointment under the Dying-in-Harness Rules on compassionate grounds, vide application dated 30.11.2012. The petitioner belongs to O.B.C category. After submission of application by the petitioner, verification was done from the Local Intelligence Unit, Mau, in regard to the educational qualification of the petitioner, on completion of verification of the educational certificates and character certificate of the petitioner, a letter was sent to the petitioner on 1.4.2016, for physical examination at Police Lines, Lucknow, on 6.4.2016. The petitioner participated in the physical examination and was declared successful on 6.4.2016. The name of the petitioner finds place in the result declared by the respondent at Serial No.320. The petitioner has been informed to appear in the written examination, vide letter dated 25.6.2016. The petitioner and similarly situated candidates instead of participating in the written examination filed a writ petition before this Court at Allahabad, the Writ Petition No.25229 of 2016 was filed by the petitioner was connected along with the record of the Writ Petition No.15724 of 2016. The writ petition was decided on 10.3.2017 by extending the benefit of the order passed in leading Writ Petition No.59295 of 2015, whereby this Court held that since the claim of the petitioner and other candidates are prior to the enforcement of the Rules of 2015, therefore, the amended Rule will not be applicable to the case of the petitioner and other similarly situated candidates.
Against the judgment and order passed by learned Single Judge on 10.3.2017, Special Appeal No.301 of 2017 (State of U.P and others v. Vikrant Tomar and others) connected with Special Appeal Defective No.300 of 2017, State of U.P and others v. Shahanshah and others have been decided, vide judgment and order dated 17.5.2017, whereby the order passed by learned Single Judge on 10.3.2017 has been affirmed. Justifying the cut of date for consideration on the basis of existing rules for providing appointment on compassionate ground. The learned Single Judge relied upon the Division Bench decision of this Court in the case of State of U.P. Vs. Mahaveer Singh 2016 (2) ADJ 882. Paragraphs 15, 19, 20 and 21 of the aforesaid judgment read as under:
"15. The decision of the Supreme Court in Canara Bank (supra) dealt with a situation where there was a dying-in-harness scheme under a circular of the Canara Bank dated 8 May 1993. An employee of the Bank died while on duty on 10 October 1998 and an application was made on 30 November 1998 by his heirs for seeking compassionate appointment on the basis of the scheme. The Bank rejected the application on 30 June 1999. Upon a learned Single Judge of the Kerala High Court being moved in writ proceedings, the petition was allowed on 30 May 2003 by directing the Bank to reconsider the claim in accordance with law. The judgment of the learned Single Judge was upheld by a Division Bench of the Kerala High Court on 24 August 2006. By the time the Division Bench had decided the writ appeal, the scheme for compassionate appointment was scrapped and the Indian Bank Association formulated a scheme based on guidelines of the Union Government stipulating ex gratia payment in lieu of compassionate appointment. A circular was issued on 14 February 2005 and it was asserted on behalf of the Bank that as on the date of consideration of the application for compassionate appointment, there was no policy to provide such an appointment under the 1993 Scheme. The Supreme Court, in these facts, held that the father of the respondent had died in October 1998 when the dying-in-harness scheme of 8 May 1993 was in force and in fact, the Bank had rejected the claim on 30 June 1999 under the scheme, holding that there were no indigent circumstances. Hence, the cause of action to be considered for compassionate appointment had arisen when the circular of 8 May 1993 was in force and the circular of 2005 being an administrative order was held not to have retrospective effect. Moreover, the Supreme Court also observed that the 2005 scheme which provided only for ex gratia payment in lieu of appointment had in fact been substituted (during the pendency of the proceedings before the Supreme Court) in 2014 and a new scheme had been arrived at for providing compassionate appointment. Hence, as on the date of the judgment of the Supreme Court, the scheme in force provided for the grant of compassionate appointment. It was in these facts, which are clearly distinguishable, that the Supreme Court held that the Bank was not justified in contending that the application for compassionate appointment could not be considered in view of the passage of time.
19. The learned Single Judge has observed that in the judgment of the Division Bench of this Court 3 February 2014, no illegality was found in the Government Order dated 3 February 1994 on which basis it has been held that the State Government was fully competent to grant such out of turn promotions.
20. We are unable to subscribe to this line of reasoning of the learned Single Judge. The issue before the Court, it must be noticed, is not concerned with the legality of the order dated 3 February 1994 but whether after the rescission of that order, the respondents would be entitled to assert an indefeasible right to be considered for out of turn appointments on the basis of the provisions of the order as they stood prior to the rescission.
21. For all these reasons, we are of the view that the judgment of the learned Single Judge holding that the process of out of turn promotions would have to be completed in terms of the procedure which was laid down by the office memorandum dated 3 February 1994 is unsustainable and would have to be accordingly set aside."
Learned Single Judge further relied upon a decision of this Court in the case of Shiv Kumar Dube and others Vs. State of U.P and others 2014(2) ADJ 312. Paragraphs 22 and 29 thereof read as under:
"22. In Chief Commissioner, Central Excise and Customs, Lucknow & Ors. Vs. Prabhat Singh20, the Supreme Court has addressed words of caution in the following observations:
"We are constrained to record that even compassionate appointments are regulated by norms. Where such norms have been laid down, the same have to be strictly followed...The very object of making provision for appointment on compassionate ground, is to provide succor to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim, is an anti thesis, for the purpose for which compassionate appointment was conceived. Delay in raising such a claim, is contradictory to the object sought to be achieved... Courts and Tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. Courts are not supposed to carry Santa Claus's big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a court's intervention. Courts and Tribunals must understand, that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Discretion is therefore ruled out. So are, misplaced sympathy and compassion."
29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:
(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;
(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;
(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;
(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;
(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;
(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;
(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;
(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family."
It appears that after dismissal of the special appeal, the opposite parties have started the process of appointment and in consequence to the same, letter dated 19.1.2018, has been issued by the Secretary (Home) and in compliance of that a date was fixed for physical test on 21.1.2018 at 35 Batallion P.A.C. Lucknow as indicated in the impugned order dated 15.3.2018.
The petitioner while the challenging the order impugned dated 15.3.2018 and communicating order dated 22.3.2018 submitted that the respondents have never been communicated about the physical test to be held on 28.1.2018, thus, there is no justification on the part of the respondents in passing the impugned order. He next submitted that the selection process was initiated in pursuance to the order of this Court, therefore, the respondents ought to have very careful in initiating the proceedings but they have acted arbitrary and without furnishing the information in regard to the date fixed for physical examination is trying to spoil the carrier of the petitioner. Learned counsel for the petitioner further submitted that the claim of the petitioner for appointment on compassionate ground on the post of Sub-inspector is on the basis of an existing provision of law, which has to be approved by this Court thus the action of the respondents is against the spirit of provisions of Dying-in-Harness Rules inasmuch as arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India.
Per contra, learned Additional Chief Standing Counsel submitted that the respondents have not committed illegality in passing the orders under challenge. Therefore, no inference is required under Article 226 of the Constitution of India. The writ petition is a misconceived petition and is liable to be dismissed.
After having heard learned counsel for the parties and on perusal of material on record, it is evident that there is no material noticed in the impugned order in regard to the information of date fixed for conducting the physical examination to the petitioner neither any letter nor material in this regard has been referred in the impugned order. Thus, the action in holding the physical test for the post of Sub-inspector (Civil Police) alleged to have been taken place on 28.1.2018 is not sustainable in law in so far it pertains to the petitioner.
The submission advanced by learned counsel for the petitioner, in this regard, has substance.
Learned Additional Chief Standing Counsel could not point out any material in regard to the information furnished to the petitioner informing the date fixed for physical test, therefore, the impugned order passed by the respondents suffers from apparent illegality and is liable to be set aside.
In view of the above, the impugned orders dated 15.3.2018 and 22.3.2018, are hereby set aside. The respondents are directed to allow the petitioner to participate in the physical test for the post of Sub-inspector (Civil Police) within a period of one month by fixing a date to conduct physical test for grant of appointment under Dying-in-Harness Rules on compassionate ground on the post of Sub-inspector from the date a certified copy of this order is produced before him. Accordingly, the writ petition succeeds and is allowed. The impugned orders dated 15.3.2018 and 22.3.2018 are set aside.
No order as to costs.
Order Date :- 11.4.2018 m.a.