Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 1854 (ALL)

Brajesh Misra v. Hon'ble High Court Of Judicature

2004-09-16

BHANWAR SINGH

body2004
JUDGMENT : Bhanwar Singh, J. Mr. Brajesh Misra is the son of an Additional District Judge, namely Shri J.C. Mishra who died in harness. He has sought for a writ in the nature of mandamus commanding the respondents to appoint the petitioner on the post of Officer-on-Special Duty like other legal heirs of the Addltional District Judges who unfortunately met with premature death, As he says, he has been discriminated against other legal heirs of the judicial officers, although he has expressed his gratitude for the appointment which has been offered to him in Lucknow Bench of the Allahabad High Court. However, his contention is that the other legal heirs of the judicial officers who died in harness were given better assignment. 2. The facts in brief are as follows: The petitioner's father Shri J.C. Mishra was a member of the U.P. Higher Judicial Service and at the time of his death, he was posted as Additional District and Sessions Judge at Moradabad. Unfortunately, he met with a road accident on 30.7.2000 while going to Moradabad to resume his duty and suffered multiple injuries. Being in critical condition, he was brought to King George Medical College, Lucknow for treatment but since he did not respond, he was taken to Appollo Hospital, New Delhi and from there to All India Institute of Medical Sciences, New Delhi. All efforts to save his life went futile and he succumbed to the fatal injuries, on August 21, 2000 at All India Institute of Medical Sciences. The petitioner is the legal heir of late Mishra, duly nominated by his mother and other members of the family. He holds a post-graduate degree in M.Sc. (Agriculture) with first division, having secured distinction in some papers. He was studying in LL.B. course at the time of the said demise of his father and now he has completed his Law graduation as well. He moved an application to the respondent No. 1 for his appointment on compassionate ground under the U.P. Dying in Harness Rules, 1974. His request was granted on 12.1.2001 and he was appointed as Routine Grade Clerk in the pay-scale of Rs. 3050-4590 which, according to him, was not as per intendment of the Rules and commensurate to his academic qualification but since his family was in distress and there was financial crisis, he had. no other alternative except to join the service. His request was granted on 12.1.2001 and he was appointed as Routine Grade Clerk in the pay-scale of Rs. 3050-4590 which, according to him, was not as per intendment of the Rules and commensurate to his academic qualification but since his family was in distress and there was financial crisis, he had. no other alternative except to join the service. The petitioner enumerated several instances where the legal heirs of the Additional District and Sessions Judge who died in harness were given higher and better assignment. As stated by him, not even one to his knowledge was appointed as Routine Grade Clerk. Counting such instances, he referred to the case of Smt. Poonam Kaushik, widow of an Additional District Judge. Poonam Kaushik was appointed as Officer-on-Special Duty in the Legal Cell of State Law Office, High Court at Allahabad in the pay-scale of Rs. 8000-13500. Similarly, Smt. Laxmi Sharma, the widow of an Additional District Judge was appointed as Officer-on-Special Duty in the U.P. Civil Secretariat in the pay-scale of Rs. 8000-13500. Then one Smt. Durga Verma, widow of late Shri Shell Verma, Additional District Judge was initially appointed as Officer-on-Special Duty in the pay-scale of Rs. 6500-10500 but on a review, she was appointed in the pay-scale of Rs. 8000-13500/- as directed by Allahabad High Court vide order dated 26.3.2003 in Civil Misc. Writ Petition No. 18048 of 2001 Smt. Durga v. State of U.P. and Ors.. Yet in one more case, one Smt. Indu Mathur, the widow of an Additional District judge was directly appointed as Upper Division Assistant in the High Court itself. The petitioner possesses a bright academic qualification with first division throughout in High School, Intermediate, B.Sc. Agriculture, M Sc. Agriculture and LL.B. His grievance is that he has been underestimated and discriminated by giving a step motherly treatment. In fact, he, with better qualification craved for a similar treatment in matters of appointment and service conditions. He moved a representation on 5.8.2003 claiming for parity in the matter of appointment but his representation has not been considered favourably. It was in these circumstances that he was obliged to file this writ petition under Article 226 of the Constitution of India for adequate, efficacious and expeditious remedy. 3. The State Government despite being given adequate opportunities to file counter-affidavit did not perhaps consider it appropriate to file a counter-affidavit and contest this petition. It was in these circumstances that he was obliged to file this writ petition under Article 226 of the Constitution of India for adequate, efficacious and expeditious remedy. 3. The State Government despite being given adequate opportunities to file counter-affidavit did not perhaps consider it appropriate to file a counter-affidavit and contest this petition. However, on behalf of the High Court, Mr. Pramod Kumar Goel, Joint Registrar (Inspection), filed counter-affidavit and asserted therein that the post of Officer on Special Duty is a Class-II post lying within the category of officers to be recruited under the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976. The Chief Justice has not yet appointed any one of Class-II post under Dying in Harness Rules. Smt. Indu Mathur, the widow of Late D.B. Mathur had been given appointment in the year 1980 and since it is more than two decades now, this old example cannot legally be made any basis for allowing parity to the petitioner. As regards Smt. Durga Verma, widow of late Sheil Verma, it was stated that although she was appointed on the post of Officer on Special Duty, yet she was being paid salary in the lower pay-scale and it was under the said circumstance that her writ petition was allowed on the ground of equality in the posts, the two persons held. It was submitted further that in all the instances of Smt. Indu Mathur, Smt. Durga Verma Smt. Laxrni Sharma and Smt. Poonam Kaushik, the High Court had offered them appointment on the post of Routine Grade Clerk but they did not join on the said post. However, they were later offered appointment on the post of Officer on Special Duty in the Civil Secretariat/State haw Office, High Court Allahabad by the State of Uttar Pradesh and not by the High Court. The petitioner was also offered appointment on the post of Routine Grade Clerk under the Dying in Harness Rules and he accepted this appointment without protest and has been discharging his duty of the said post. Therefore, it is not acceptable that he has been subjected to any hostile discrimination, rather the High Court treated him like others, viz. Smt. Durga Verma, Smt. Laxmi Sharma and Smt. Poonam Kaushik. 4. Therefore, it is not acceptable that he has been subjected to any hostile discrimination, rather the High Court treated him like others, viz. Smt. Durga Verma, Smt. Laxmi Sharma and Smt. Poonam Kaushik. 4. In his rejoinder affidavit, the petitioner referred to the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 which provide that a Upper Division Assistant may be recruited by direct recruitment. He reiterated his averment that according to the established principle of law enshrined in Articles 14 and 16 of the Constitution of India like snould be treated alike. Merely because the other appointees were ladies, the petitioner being a male should not be discriminated on the ground of sex. The petitioner is entitled to get the same treatment which was extended to Indu Mathur, Durga Verma, Laxmi Sharma and Poonam Kaushik. As the petitioner and his family were in distress and financial crisis following his father's sudden demise, he had no option except to accept the offer regarding his appointment as Routine Grade Clerk but this should not .amount to his acquiescence as it will amount to the foreclosure of his service benefit to which he is legally entitled. It was also stated by him that the post of Officer on Special Duty was not covered under the purview of the Public Service Commission. 5. Having regard to the averments made by the contesting parties to the petition and the arguments submitted by the learned Counsel for the petitioner Shri R.P. Mishra and learned State Counsel Mr. S.C. Yadav, it may be observed that the crucial question is as to whether the petitioner has been subjected to hostile discrimination by offering him an appointment on the post of Routine Grade Clerk in the High Court despite that he is a well qualified person holding degree in M.Sc. (Agriculture). As stated by him in para 11 of his petition, he has an excellent academic career. He is the holder of first class certificates in High School and Intermediate classes and the first class degrees in B.Sc. (Agriculture) and M.Sc. (Agriculture named ladies was so qualified at the time of appointment. (Agriculture). As stated by him in para 11 of his petition, he has an excellent academic career. He is the holder of first class certificates in High School and Intermediate classes and the first class degrees in B.Sc. (Agriculture) and M.Sc. (Agriculture named ladies was so qualified at the time of appointment. Under the Dying in Harness Rules, no doubt, appointment on a Class-II post falling vis-a-vis selection and recruitment within the jurisdiction of U.P. Public Service Commission, can neither be claimed nor offered to a person praying for appomtment on compassionate ground, but since the petitioner does not stake his claim for appomtment on such post which falls within the purview of U.P." Public Service Commission and further since the post of Officer on Special Duty is not coveted by the necessary implication of selection being routed through the Public Service Commission, the petitioner's claim cannot be brushed aside, particularly when he has quoted not one but several instances of appointments having been made in past on the posts of Upper. Division Clerk and Officer on Special Duty. Shelter of passage of time must not be taken recourse to reject the lawful claim. If an appointment was made two decides back on the post of Upper Division Assistant, it is an instance which should certainly be followed us precedent without confronting it on the ground of lapse of time. By God's grace, calamity of death does not take its toll every now and then so as to call for a situation for appointment under Dying in Harness Rules. Unfortunately, such calamities occur rarely without there being any relevance to the passage of time. During last three decades, there are only 5-6 instances of Additional District Judges having expired in harness. Therefore, time is of no relevance or essence in this context. In the administrative matters, precedent plays a vital role and if followed once, it should be acted upon, particularly when the circumstances are justifiable. During last three decades, there are only 5-6 instances of Additional District Judges having expired in harness. Therefore, time is of no relevance or essence in this context. In the administrative matters, precedent plays a vital role and if followed once, it should be acted upon, particularly when the circumstances are justifiable. In the case of Judges of the district judiciary, if a Judge having held good positions dies, his legal heir, particularly when he is well qualified, should be offered an appointment which though may not be exactly befitting to the dignity of the family, yet should not amount to degradation of the status the family once enjoyed so as to rub salt on its wounds of having lost the head of the family and with his death, the source of livelihood. If the claim of the legal heir for suitable appointment is rejected, the family will really be rendered in a grave distress. For instance, if a highly qualified person holding qualitative degrees and certificates of his academic career having lost his father is offered a post of a Peon on the basis of stubborn reason that he or she has no. right to stake his claim to any post, it is virtually an insult to the family and the deceased officer. It is, no doubt, true that the object of providing job to a legal heir of the deceased employee is to help the family to meet the contingency of financial crisis but this object cannot be pleaded with all obtinacy on the part of the employer nor the aim and object should be acted upon in isolation. For achieving a specific object, all the attending circumstances should be taken note of. Not only effort should be made to accomplish the object but the status of the family, qualification of the person claiming appointment under the Dying in Harness Rules, rank and position of the deceased employee, number of family members in distress and harness and their social position should be taken into consideration while offering an employment under the rules. Rule 5 of U.P. Recruitment of Dependants of Government Servants (Dying in Harness), Rules, 1974 clearly postulates that the employment being offered to the legal heir of a deceased employee must be a suitable employment. The said Rule 5 may be quoted as below for better appreciation: 5. Rule 5 of U.P. Recruitment of Dependants of Government Servants (Dying in Harness), Rules, 1974 clearly postulates that the employment being offered to the legal heir of a deceased employee must be a suitable employment. The said Rule 5 may be quoted as below for better appreciation: 5. Recruitment of a member of the family of the deceased.--(1) 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 of 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: 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. (2) As far as possible, such employment should be given in the same department in which the deceased Government servant was employed prior to his death. (Emphasis laid) 6. The phrase which has been underlined clearly stipulates that the employment must be suitable-of course subject to fulfilment of educational qualifications and other necessary conditions. Indeed, it is not made out from the statutory rule quoted above that if a person is holding merely a High School certificate, he can be appointed as Officer on Special Duty, i.e. a Class-II post or Upper Division Assistant or even a Routine Grade Clerk but certainly it envisages in candid terms that the job offered must be suitable employment not falling within the purview of the U.P. Public Service Commission. The post of Officer on Special Duty does not come within that purview and this is proved from the instances of the widows mentioned above having been appointed on the post of Officer on Special Duty. Therefore, there does not seem to be any plausible justification for the High Court to have offered to the petitioner the lowest post of Routine Grade Clerk, even though the appointing authority is competent to appoint by way of direct recruitment officials on the post of Upper Division Assistant. The opposite party No. 1 has not given any reasonable, explanation as to why the petitioner was not suitable for the job of Upper Division Assistant. Similarly, the Government, who is said to have appointed Durga Verma, Laxmi Sharma and Poonam Kaushik as Officer on Special Duty, did not consider it appropriate to treat the petitioner at par and with equality on the principle of equal opportunity to all who are similarly circumstanced. By rejecting petitioners' claim of his appointment on the post of Officer on Special Duty, the opposite parties have infused a feeling in the mind of the petitioner, as argued by the learned Counsel for the petitioner, that he is a destitute son of small father while the above named three ladies held the privileged position of being the wives of great husbands. The fact is that the petitioner and all these ladies were given appointment as legal heirs of the Additional District and Sessions Judges -all of whom died in harness. 7. As a matter of fact, the discrimination with which the petitioner has been meted out is a hostile discrimination which is prohibited under Articles 14, 15 and 16 of the Constitution of India-under Article 14 because granting a facility to one and refusing to the other similarly situated is the worst example of the denial of the basic fundamental right enshrined under the said article, i.e. equality before the law. To put it differently, it is pick and choose policy to suit one's convenience. The petitioner, who is the son of a deceased Additional District & Sessions Judge, has been offered the post of a Routine Grade Assistant, i.e. the lowest in the hierarchy of the officialdom and the widows of the four other Additional District and Sessions Judges were appointed on higher posts, i.e. Upper Division Assistant and Officer on Special Duty as indicated earlier. Not only this but it is also a discrimination which is prohibited by the provisions of Article 15(1) which may be quoted as below; Article 15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (Emphasis laid) 8. The petitioner being a male legal heir of the deceased Additional District Judge is the solitary example who has been appointed as Routine Grade Clerk while the other instances of higher appointments being offered to Smt. Indu Mathur, Smt. Durga Verma, Smt. Laxmi Sharma and Smt. Poonam Kaushik are all women. It should not be a mere co-incidence that the petitioner is the lone male heir of an Additional District Judge having died in harness seeking appointment under Dying in Harness Rules in High Court/Government and the other four are women appointed on higher posts. Discrimination means difference in treatment. It is an adverse distinction with regard to distinguish unfavourably from other. All women legal heirs were offered higher appointments than that of the petitioner. The High Court has not given the exact date of their appointments but the learned Counsel for the petitioner has contended that Poonam Kushik was appointed as Officer on Special Duty subsequent to the appointment of the petitioner and all the other three ladies were given appointments earlier to his. In this background, no other inference except that it is a hostile discrimination based on the sex can be drawn. The opposite parties have not sought protection of Clause (3) of Article 15 so as to say that the four women in the picture were appointed on higher posts under any special provision for women nor the State has made any provision for the advancement of the women who unfortunately were termed to be as widows, of the Additional District Judges dying in harness. Also there is no averment that the four women belong to the Scheduled Castes or Scheduled Tribes or backward classes falling within the purview of "socially and educationally backward classes of citizens." Therefore, it may reasonably be held that the petitioner has been dealt with hostile discrimination which is hit by the provision of Article 15 (1) and certainly his case deserves to be protected against the said worst kind of discrimination. 9. 9. Article 16 reiterates more or less the provisions of Article 15 in the matter of employment or appointment to any office under the State. Clause (1) of the said article postulates that there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under State. Clause (2) further provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. The true purport of equally of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities and opportunity of excellence in each cadre. As said earlier, the opposite parties have not disclosed any plausible reason as to why four women were offered better opportunity of employment in comparison to the petitioner. Equal opportunity of appointment means equal opportunity the similarly circumstanced person regarding appointment, salary, periodical, increment, revision of pay, promotion, terms of leave and other conditions of service. In this context, a refrence can be made to a Division Bench judgment of this Court delivered in, "Smt. Durga Verma v. State of U.P. and Ors. 2003 (21) LCD 506. It is important to note that Smt. Durga Verma is one of the four women appointees who have been referred to by the petitioner of this case and vis-a-vis whom he. says he has been treated with discrimination. Smt. Durga Verma, the widow of Shri Sheil Verma, the Additional District Judge was initially appointed as Officer on Special Duty in Legal Cell in the State Law Office at High Court, Allahabad in the pay-scale of Rs. 6500-10500. She filed Civil Misc. Writ Petition No. 18048 of 2001, decided on 26.3.2003 claiming parity in pay with Smt. Laxmi Sharma who was appointed earlier on the compassionate ground as Officer on Special Duty by the State in the pay-scale of Rs. 8000-13500. Again Smt. Laxmi Sharma is the same female whose name the petitioner has referred to in his petition. She is one of the four women whose appointments were on higher post as compared to that of the petitioner. 8000-13500. Again Smt. Laxmi Sharma is the same female whose name the petitioner has referred to in his petition. She is one of the four women whose appointments were on higher post as compared to that of the petitioner. Smt. Durga Verma whose husband died in a road accident and who was appointed as Officer on Special Duty pleaded that she being similarly circumstanced as Smt. Laxmi Sharma was entitled to draw her salary in the pay-scale of Rs. 8000-13500 instead of Rs. 6500-10500. This Court granted her request and the parity of pay-scale as admissible to Smt. Laxmi Sharma. 10. There is, therefore, a convincing ground that the petitioner should also be placed in the same pay-scale on being appointed on the same post on which Smt. Durga Verma, Smt. Laxmi Sharma find Poonam Kaushik were appointed, Mr. S.C. Yadav, learned Additional Chief Standing Counsel referred to the citation, "Umesh Kumar Nagpal v. State of Haryana and Ors. 1994 (68) ILK 1191 (SC) and contended with reference to the observations made therein that appointments made on compassionate ground should be confined only to Class-Ill and IV posts. Such appointment on class-I and II post is legally impermissible. In this context, it may be observed that the facts of the said case were different as the appointment there was sought after lapse of the reasonable period. Further, it is important to note that under statutory rules applicable in the State of U.P., the provision is that appointment on compassionate ground should not be offered for the post which falls within the purview of U.P. Public Service Commission. There is no prohibition in terms that the appointment shall not be offered for the post of Officer on Special Duty. In other words, under the statutory U.P. Rules, as referred to above, there is no positive or negative indication regarding the cadres that may be offered to a person seeking employment on compassionate ground. The necessary condition is that such an appointment should not be made on a post which comes within the purview of the U.P. Public Service Commission. The only requirement which is to be fulfilled under Rule 5, quoted above, is that the employment to be offered to a needy legal heir should be suitable employment. The necessary condition is that such an appointment should not be made on a post which comes within the purview of the U.P. Public Service Commission. The only requirement which is to be fulfilled under Rule 5, quoted above, is that the employment to be offered to a needy legal heir should be suitable employment. It may be in the State of Haryana that appointments on compassionate ground have to fulfil the condition of being confined to Class-Ill and IV posts only and that seems to be distinct ground on the basis of which the above citation is not applicable here. In the case in hand, appointment on the post of Officer on Special Duty can by no stretch of reasoning be said to be violative of the rules and this is evident from the three appointments of the three ladies named above. In other words, it may be held that unless an appointment is statutorily prohibited, it would be well within the competence of the State Government to offer a suitable appointment to a qualified and eligible person. Therefore, the aforesaid citation is not for the above distinguishable reasons attracted to the case in hand. 11. Mr. Yadav then referred to the order dated 20.12.2003 of Hon'ble Chief Justice of Allahabad High Court whereby it was observed that the citation of Surya Kant Kadam v. State of Karnataka and Ors., was not applicable in the case of the petitioner Brajesh Misra as in Karnatka, there is no statutory rules as are applicable in the State of U.P. In this context, it may be mentioned that the above referred citation was relied upon by this Court while dealing with the interim application and it was directed vide order dated 29.10.2003 that the opposite parties might consider the petitioner's representation keeping in view the petitioner's first class post Graduate Degree in the light of the said Supreme Court's judgment. The logic of there being no statutory rules in Karnataka, in fact, was of not of as much relevance or importance as was the finer point of discrimination acted upon in that case by the Hon'ble Supreme Court. In that case also, the appellant was discriminated exactly in the similar way as the petitioner of the case in hand. The logic of there being no statutory rules in Karnataka, in fact, was of not of as much relevance or importance as was the finer point of discrimination acted upon in that case by the Hon'ble Supreme Court. In that case also, the appellant was discriminated exactly in the similar way as the petitioner of the case in hand. The principle of law laid down by the Apex Court in Surya Kant Kadam's case may be quoted as below: It is true that the appointment on compassionate ground in the State of Karnataka is not governed by any statutory rules but by a set of administrative instructions and as such is not enforceable in. a Court of law. But the grounds on which the appellant makes out the case for consideration of his case, is the violation of Article 14 and discriminatory treatment meted out to the appellant., It is undisputed that the date on which the appellant was given a compassionate appointment as Second Division Assistant/Clerk he had the necessary qualification for being appointed as Sub-Inspector of Excise. It is also undisputed that respondents 3 and 4 were given appointment initially as Second Division Assistant/Clerk but later than the appellant. When" the State, therefore, though it fit to change the post of respondents 3 and 4 and appointed them to the post of Sub-Inspector of Excise, unless there is any justifiable reason existing, there is no reason as to why the appellant should be treated with hostile discrimination. In the aforesaid circumstances, we\set aside the impugned order of the Tribunal rejecting the prayer of the appellant for being considered for the post of Sub-Inspector of Excise and we direct that the State Government may consider the case of appointment of the appellant as Sub-Inspector of Excise. 12. It is clear from above that the respondents 3 and 4 of afore-referred citation were initially recruited as Second Division Assistant but later appointed as Sub-Inspector of Excise. The appellant who was also recruited on the post of second Division Assistant prayed for the same treatment and appointment on the post of Sub-Inspector but without any plausible reason his representation was rejected. It was in those set of facts and circumstances that the Hon'ble Supreme Court granted the appeal of Mr. Kadam and directed the State to consider the case for his appointment as Sub-Inspector of Excise. 13. It was in those set of facts and circumstances that the Hon'ble Supreme Court granted the appeal of Mr. Kadam and directed the State to consider the case for his appointment as Sub-Inspector of Excise. 13. In the present case before this Court, the petitioner also has been subjected to the same kind of hostile discrimination. While he has been appointed as Routine Grade Clerk, three ladies, namely, Durga Verma, Laxmi Sharma and Poonam Kaushik were appointed as Officer on Special Duty. Whereas Durga Verma and Laxmi Sharma were given appointments prior to the petitioner, Smt. Poonam Kaushik has been appointed after his recruitment. As stated above, neither the State nor the High Court has offered any explanation for discrimination to which the petitioner has been subjected. He is qualified in all respects to be appointed as Officer on Special Duty in the same pay-scale in which the three above ladies were appointed. The long and short of the discussions made above is that this writ petition deserves to be allowed. Accordingly, the petition is allowed and a writ of mandamus is issued commanding the. State of Uttar Pradesh to appoint the petitioner on the post of Office on Special Duty within a period of two months from the date a copy of mis judgment is received by the opposite party No. 2.