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2004 DIGILAW 2127 (ALL)

Sneh Lata v. State of U. P.

2004-10-27

R.B.MISRA

body2004
JUDGMENT : R.B. Misra, J. Heard learned Counsel for the petitioner and learned Counsel for respondent No. 4 Shyam Behari Agrawal in Writ Petition No. 1913 of 2000 and Sri Ramesh Upadhyay learned Counsel for the petitioner Sri Shyam Behari Agrawal in Writ Petition No. 4342 of 2000 as well as learned Counsel for the respondents. 2. In Writ Petition No. 1913 of 2000 the order dated 28.12.1999 (Annexure-1 to the writ petition) passed by Chairman/Manager, Nagar Palika Parishad Kosi Kalan, Mathura is under challenge whereby the Petitioner working as a clerk in Nagar Palika Inter College Koshi Kalan was reverted to her original post of Toll Moharrir and in her place Shyam Behari Agrawal has been directed to resume the charge. Further prayer has been made for payment of arrears of salary to the Petitioner to the post of clerk w.e.f. September, 1999 and for regularization to the post of clerk. 3. In Writ Petition No. 1913 of 2000 Petitioner Smt. Sneh Lata had made Sri Shyam Behari Agrawal as Respondent No. 4 whereas in Writ Petition No. 4342 of 2000 filed by Sri Shyam Behari Agrawal, Smt. Sneh Lata has not been made a party. However in Writ Petition No. 4342 of 2000 prayer has been made to quash the order dated 18.1.2000 (Annexure-14 to the writ petition) whereby the order dated 28.12.1999 transferring Smt. Sneh Lata and reverting her to the post of Toll Moharrir from the post of clerk was stayed and the appointment of Sri Shyam Behari Agrawal to the post of clerk was cancelled. 4. According to the Petitioner Smt. Sneh Lata she is High School pass and Madhyama (equivalent to Intermediate examination) and being eligible to the post of clerk was appointed by an order dated 25.3.1982 of Executive Officer of Nagar Palika Parishad Kosi Kalan after the termination of Rajendra Kumar Arya who was given appointment by an order dated 29.2.1982 of Executive Officer, Nagar Palika Parishad, Kosi Kalan on compassionate ground. After the death of her father Sri Kailash Chandra Agrawal on 4.3.1982 while working as a Tax and Revenue Inspector in Nagar Palika Parishad, Kosi Kalan the appointment of Smt. Sneh Lata was made in the vacancy which was available after the termination of Sri Rajendra Kumar Arya who was later on re-instated, therefore, in compliance to the order dated 25.3.1982 (Annexure-2, to the writ petition) the Petitioner was appointed to the post of Toll Lekhak which was available after the retirement of Sri Deo Paraksh, Toll Lekhak. It appears that in the meantime the Incharge, Nagar Palika Parishad, Kosi Kalan, Mathura had shifted the Petitioner in Nagar Palika Balika Inter College, therefore, against the above order the Petitioner preferred appeal before the Commissioner which was not disposed of, however the Petitioner was harassed by passing frequent transfer order and the Petitioner being deployed as Toll Lekhak was discharging the work and function of clerk in the College, however the Petitioner was also confirmed w.e.f. 1.8.1986 to the post of Toll Lekhak. It appears that the post of Typist clerk has fallen vacant in the office of Balika Inter College under Nagar Palika Parishad due to promotion of one Smt. Laxmi Gupta to the post of Head Clerk. However the Respondents instead of appointing the Petitioner, appointed Sri S.K. Kulshrestha against the post of Typist clerk on 11.12.1987. Smt. Laxmi Gupta promoted to the post of Head Clerk is the mother of Sri Shyam Behari Agrawal, Respondent No. 4 in the present Writ Petition 1913 of 2000. Being aggrieved against the action of the Respondents the Petitioner preferred appeal/representation against the appointment of Sri S.K. Kulshrestha to the post of Typist clerk and the said appeal of the Petitioner was dismissed by the Commissioner, Agra Division on 18.4.1988 with an observation that when ever vacancy of clerk arises in the Nagar Palika Parishad Balika Inter College the Petitioner shall be appointed on such post. It appears that after the death of one Sri Subhash Chandra Agrawal an employee in the Nagar Palika Parishad on 17.10.1988, the said post of clerk was to be fulfilled in Balika Inter College and for that purpose an advertisement was made in 'Amar Ujala', however the Petitioner was given promotion to the post of clerk by an order dated 5.1.1989 (Annexure-6 to the writ petition) by President of Nagar Palika, Kosi Kalan, who is also the Manager of Balika Inter College, Mathura and Petitioner in compliance to the above order had joined the post of clerk and the Petitioner was regularly working as clerk and getting salary. The Petitioner was expecting her confirmation to the above post and has also submitted her application to that effect to the Principal of the College who also recommended the case of the Petitioner for regularization. 5. It appears that a post of clerk had again fallen vacant in Balika Inter College, Mathura and the advertisement was published on 19.11.1998 to fulfil the post. The Petitioner again submitted representation to the Sub-divisional Magistrate against the said post enclosing the appointment order dated 18.4.1988 passed by the Commissioner, Agra Division. In reference thereto the Petitioner was given a temporary promotional appointment. It appears that on the death of one Sri Subhash Chandra Agrawal on 17.10.1988, Sri Shyam Behari Agrawal, Respondent No. 4 born on 18.5.1979 was about 11 years old and in his matter the Nagar Palika had resolved on 4.1.1989 to appoint him to the post of clerk in Nagar Palika Parishad after attaining the age of majority he would be appointed to the post of clerk and when Sri Shyam Behari Agrawal became major he filed representation before the Commissioner for getting appointment on compassionate ground and when no decision was taken by the Commissioner, he filed Writ Petition No. 24732 of 1999, Shyam Behari Agrawal v. District Inspector of Schools, Mathura and Ors. where Smt. Sneh Lata, Petitioner of Writ Petition No. 1913 of 2000 was not made a party and some other person Indra Parashar, Tax Collector was made party in the writ petition. However the Writ Petition No. 24732 of 1999 was disposed of by an order dated 15.6.1999 by this Court directing the Respondents to decide the representation of the Petitioner by a speaking order. However the Writ Petition No. 24732 of 1999 was disposed of by an order dated 15.6.1999 by this Court directing the Respondents to decide the representation of the Petitioner by a speaking order. In reference to the order dated 15.6.1999 it appears that the Commissioner by its order dated 2.8 1999 directed to appoint Sri Shyam Behari Agrawal to the post of clerk and in reference thereto the Chairman/Manager, Nagar Palika Balika Inter College, Kosi Kalan, Mathura has appointed Sri Shyam Behari Agrawal to the post of clerk on 19.8.1999. Consequent upon, the Petitioner Smt. Sneh Lata was to be reverted back from the post of clerk to the post of Toll Moharrir in view of the order dated 28.12.1999. This Court by an interim order dated 13.1.2000 stayed the impugned order dated 28.12.1999. In these circumstances the order dated 19.8.1989 was recalled by the order dated 18.1.2000 (Annexure-4 in Writ Petition No. 4342 of 2000) and this Court by its order dated 3.2.2000 however, has stayed the order dated 18.1.2000 recalling the appointment of Sri Shyam Behari Agrawal as a clerk. In these circumstances, the Petitioner Smt. Sneh Lata was forced to work as a Toll Moharrir and Sri Shyam Behari Agrawal had started working as a clerk. According to the learned Counsel for the Petitioner, Smt. Sneh Lata was given appointment on compassionate ground on the death of her father and she was also assured by order dated 18.4.1989 that whenever the vacancy would be available, she would be given appointment to the post of clerk. Since initially she was appointed on her own right to the post of clerk, however she was subsequently given an appointment to the post of Toll Moharrir/Toll Lekhak but she was appointed by way of promotion on 5.1.1989 on the death of Sri Subhash Chandra Agrawal, the father of Sri Shyam Behari Agrawal. Since initially she was appointed on her own right to the post of clerk, however she was subsequently given an appointment to the post of Toll Moharrir/Toll Lekhak but she was appointed by way of promotion on 5.1.1989 on the death of Sri Subhash Chandra Agrawal, the father of Sri Shyam Behari Agrawal. The appointment as a clerk by order dated 5.1.1989 (Annexure-6 to the writ petition) is the appointment of permanent nature and the Petitioner was not to be reverted back without observing the due procedure of law moreso, for accommodating Sri Shyam Behari Agrawal, Respondent No. 4 who at the time of death of his father on 17.10.1988 was minor, i.e. only 11 years of age as his date of birth was 18.5.1979 as indicated in (Annexure-4 to the writ petition) in the High School Certificate in Writ Petition No. 4342 of 2000 and in the resolution No. 3 dated 4.1.1989 of Nagar Palika making reservation in favour of the Shyam Behari, for making appointment in future cannot be legally sustainable under the compassionate ground under U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974. 6. Whereas on behalf of learned Counsel for Sri Shyam Behari Agrawal it has been stated that the appointment dated 19.8.1989 of Sri Shyam Behari Agrawal to the post of clerk was never challenged by any one except by the impugned order dated 18.1.2000 and the appointment of Sri Shyam Behari Agrawal made on compassionate ground is permanent basis cannot be taken away except by adopting the proper procedure for terminating the service. Learned Counsel for the Petitioner, Smt. Sneh Lata has submitted that the appointment of Sri Shyam Behari Agrawal could not be made at such belated stage on compassionate ground after the 11 years of death of the father of Sri Shyam Behari Agrawal, more so when his mother Laxmi Gupta was already in employment to the post of Principal. The initial appointment of 19.8.1989 though not challenged specially said to be de-horsed the rules and provisions being against the spirit of the compassionate appointment, cannot be legally sustainable. The initial appointment of 19.8.1989 though not challenged specially said to be de-horsed the rules and provisions being against the spirit of the compassionate appointment, cannot be legally sustainable. According to the learned Counsel for Smt. Sneh Lata it was a deliberate attempt on the part of Sri Shyam Behari Agrawal that without making the Petitioner a party in the Writ Petition No. 4342 of 2000, an interim order was obtained by this Court by not disclosing full relevant facts before this Court. 7. I have heard learned Counsel for the parties. I find that on the death of Sri Kailash Chandra Agrawal on 4.3 1982, father of Smt. Sneh Lata, though she was initially appointed as a clerk and subsequently appointed as a Toll Lekhak and confirmed from 1.10.1986 and was to be appointed to the vacancy of clerk fallen in Balika Inter College, Mathura under Nagar Palika Parishad due to the vacancy created by the death of Subhash Chandra Agrawal on 17.10.1988 in view of the assurance given by the Commissioner in his order dated 18.4.1988 (Annexure-5 to the writ petition) and no appointment in favour of Sri Shyam Behari on the compassionate ground could be given at belated stage after 11 years by making another provision of reservation which is not contemplated in the rules prevailing for compassionate appointment under the U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974, provides as below: 8. For convenience, Rule 5 of 'Rules 1974' is extracted below: 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 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. (2) As far as possible, such an employment should be given in the same department which the deceased Government servant was employed prior to his death. 9. The object of compassionate appointment is to enable the penurious family of the deceased employee to tide over sudden financial crisis and not to provide employment. This is because as a rule appointments in public service should be made strictly on the basis of open invitation of applications and no other mode of appointment nor any other consideration is permissible. However, to this general rule which is to be followed strictly in all cases of public appointment, there are certain exceptions carried out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. However, to this general rule which is to be followed strictly in all cases of public appointment, there are certain exceptions carried out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases out of humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased employee who may be eligible for such employment. So, the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis. Laying down the above principles in Umesh Kumar Nagpal Vs. State of Haryana and Others, (1994) 4 SCC 138 ; Jagdish Prasad Vs. State of Bihar and Another, (1996) 1 SCC 301 , and S. Mohan Vs. Government of T.N. and Another, (1998) 9 SCC 485 . The Supreme Court has cautioned that the object is not to give a member of such family a post not less than the post held by the deceased employee. 10. Mere death of an employee not sufficient to entitle the dependant of the family compassionate appointment. The Government or the public authority concerned has to examine the financial condition of the family, and it is only when it is satisfied that but for the provision of employment the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The Supreme Court has cautioned that it must be remembered that as against the destitute family of the deceased, there are millions of other families, which are equally, if not more destitute. It is, therefore, pointed out by the Supreme Court in Umesh Chandra Nagpal (supra), Director of Education (Secondary) and Another Vs. The Supreme Court has cautioned that it must be remembered that as against the destitute family of the deceased, there are millions of other families, which are equally, if not more destitute. It is, therefore, pointed out by the Supreme Court in Umesh Chandra Nagpal (supra), Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, AIR 1998 SC 2230 ; that the exception to the general rule that all appointments in public service shall be made strictly on the basis of open selection on merits is made in favour of the family of the deceased employee in consideration of the services rendered by him and the legitimate expectations and changes in the status and affairs of the family engendered by erstwhile employment which are suddenly upturned. The Supreme Court also indicated that the compassionate appointment cannot be granted after a lapse of reasonable period if that be so, it must be specified in the rules and the object being to enable the family to tide over the financial crisis which it faces because of the sudden death of the sole bread-earner, the compassionate employment cannot be claimed and offered after long lapse of time moreso, when the crisis is over, it is because, the consideration of such employment is not the vested right which can be exercised at any time in future. 11. Circumstances which negative necessity of compassionate appointment: The railway servant died leaving his widow, his two major sons and a minor son aged twelve years and application for compassionate appointment for the youngest son had been made twenty years after the death of the railway servant and the same has been refused. The Respondent then made an application before the Central Administrative Tribunal against such refusal and the Tribunal directed the authority to consider his case and if found fit to provide him with employment. The Respondent then made an application before the Central Administrative Tribunal against such refusal and the Tribunal directed the authority to consider his case and if found fit to provide him with employment. The Supreme Court in appeal of Union of India has set aside the order of the Tribunal by observing that the plea for compassionate appointment is not to enable the family to tide over the sudden crisis or distress which resulted long ago, that at the time the railway employee died there were two major sons and the mother who were apparently capable of meeting the needs of the family and so did not apply for any job on compassionate ground that for nearly twenty years, the family has pulled on apparently without any difficulty and that in this background the Tribunal must be held to have acted illegally and without jurisdiction in directing the authorities to consider the case of the Respondent for appointment on compassionate ground and to give him appointment if found suitable in view of Union of India (UOI) and Others Vs. Bhagwan Singh, (1995) 6 SCC 476 . In another decision the Supreme Court has held that when at the time of death of the father, the son was only four years old, he having applied for compassionate appointment twenty three years after the death of the father, is not entitled to appointment on compassionate ground in the light of the decision in Jagdish Prasad (supra) and Paras Nath (supra). When the father died in 1965 the son was less than six years old. After attaining majority he applied for compassionate appointment on 15th July 1987. Such deleted claim cannot be allowed in view of Dhalla Ram v. Union of India, AIR 1999 SC 564 . 12. No time-limit for making the claim if belated petition entertainable. Ex-employee of Haryana State Electricity Board died during the minority of his sons and his sons on attaining majority 12 or 13 long years respectively after death claimed compassionate appointment. Under the scheme of the Government prevalent at that time on the employee's death, there was no time-limit for making such a claim. The High Court in writ petition directed the Board to allow their claims. Under the scheme of the Government prevalent at that time on the employee's death, there was no time-limit for making such a claim. The High Court in writ petition directed the Board to allow their claims. The Supreme Court while setting aside the order of the High Court held that the High Court order allowing the claim at a belated stage is not sustainable because compassionate appointment cannot be granted after a long lapse of reasonable period and very purpose is intended to meet the immediate financial problem being suffered by the members of the deceased family and such consideration cannot be kept pending for years. Allowing the appeal of the State Electricity Board and setting aside the order of the High Court, the Supreme Court has, however, observed that the claimants are not precluded from making representation for consideration of their cases giving full details of the circumstances and economic conditions of the family in view of Haryana State Electricity Board Vs. Naresh Tanwar and Another, (1996) 8 SCC 23 . 13. In view of the amended provision of Rule 5 also the appointment of the Petitioner could not be made beyond five years from the death of the father of Sri Shyam Behari Agrawal from 17.10.1988 and by passing a resolution by Nagar Palika Parishad indicating the assurance of appointment on becoming major of Sri Shyam Behari by prescribing a criteria of reservation in the rules of compassionate appointment. The order of Commissioner giving the appointment to Sri Shyam Behari Agrawal de hors the provisions of rule cannot be allowed to supersede the spirit of prevailing Rules of compassionate appointment. In these circumstances, the order dated 28.12.1999 (Annexure-1 to the writ petition) is not legally sustainable and is set aside and the Writ Petition No. 1913 of 2000 is allowed with the direction to treat the Petitioner Smt. Sneh Lata as having been appointed to the post of clerk and she shall also be entitled to the salary. I do not find any illegality and impropriety in the impugned order dated 18.1.2000 (Annexure-14 to the Writ Petition No.4342 of 2000), therefore, the writ petition of Shyam Behari Agrawal is dismissed.