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2010 DIGILAW 1268 (ALL)

HIMANI SAXENA v. STATE OF U. P.

2010-04-20

RAN VIJAI SINGH

body2010
JUDGMENT Hon’ble Ran Vijai Singh, J.—The unfortunate petitioner who has lost her father and mother both has approached this Court under Article 226 of the Constitution of India, challenging the impugned order dated 9th November, 2006 passed by District Panchayat Raj Aadhikari Bareilly, by which, her appointment made under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules 1974 (herein after referred to as Rules of 1974) has been cancelled. It appears the petitioner’s father was Gram Panchayat Aadhikari and while working he died in harness on 28.8.1996. The mother of the petitioner has died prior to the death of her father. The petitioner who was the only daughter of her parents, was minor at the time of death of her father. When she became major, she has applied for compassionate appointment under the Rules of 1974. Pursuant thereto, the petitioner has been appointed vide appointment letter dated 25th July, 2006 on the post of clerk. Thereafter the petitioner has joined and started working. But all of sudden, the impugned order (dated 9.11.2006) of cancellation of appointment has been passed on the ground that the Rules of 1974 has been amended in the year 1993 and in view of Proviso to Rule 5 if the application for compassionate appointment is made after expiry of five years then it is the State Government which is competent to relax the period of limitation whereas in this case no such relaxation has been granted by the State Government. 2. Sri Pradeep Saxena, learned counsel appearing for the petitioner has submitted that the appointment made under Dying in Harness Rules is permanent in nature in view of the Division Bench decision of the Court in the case of Ravi Karan Singh v. State of U.P and others, 1999 (3) UPLBEC 2263 and once the appointment has been made, this cannot be cancelled without affording an opportunity of hearing. He has further contended that there was no fault of the petitioner as she has been throughout fair and nothing has been concealed by the petitioner when she was appointed, therefore the impugned order should not have been passed. In support of his submissions, he has also placed reliance upon the judgment of this Court in Smt. Sadhna Kumari v. State of U.P. and others, 2006 (8) ADJ 453 . In his submissions, the impugned order deserves to be quashed. 3. In support of his submissions, he has also placed reliance upon the judgment of this Court in Smt. Sadhna Kumari v. State of U.P. and others, 2006 (8) ADJ 453 . In his submissions, the impugned order deserves to be quashed. 3. Refuting the submissions of learned counsel for the petitioner, learned standing counsel has submitted that in view of the Proviso to Sub-rule 1 (iii) of Rule 5 of the Rules 1974 if an application for appointment under dying in harness rules is made after expiry of five years then it is the State Government which can relax the period of limitation and in this case, since the appointment has been made without there being any order of the State Government with respect to relaxation of period of limitation therefore infirmity cannot be attached to the impugned order dated 9.11.2006 and the writ petition be dismissed. 4. I have heard learned counsel for the parties and perused the record. It is not in dispute that the petitioner was offered an appointment on 25th July, 2006 and pursuant thereto the petitioner has joined her duties and worked for sometime. Since the initial stage of making an application for obtaining appointment on compassionate ground to the date of joining there had been no concealment of fact at any point of time, on the part of petitioner therefore, the question would arise whether the petitioner’s appointment could be cancelled in this manner. 5. In the case of Ravi Karan Singh (supra) the Division Bench of this Court has observed as under. “In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rule because such appointment is intended to provide immediate relief to the family on the sudden death of the bread-earner. We therefore hold that the temporary appointment and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments.” In view of the Division Bench decision in the case of Ravi Karan Singh (supra), an appointment offered under the Rules of 1974 is permanent in nature. We therefore hold that the temporary appointment and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments.” In view of the Division Bench decision in the case of Ravi Karan Singh (supra), an appointment offered under the Rules of 1974 is permanent in nature. In such view of the matter, I am of the opinion that once an appointment letter is issued, without attaching any condition, the service of such person cannot be terminated without any notice and opportunity. 6. It is well settled that an order which involves civil consequences must be just, fair, reasonable, unarbitrary and impartial with the principles of natural justice. The main aim of the principle of natural justice is to secure justice or to put it negatively to prevent miscarriage of the justice vide State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 ; Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 and D.K. Yadav v. J.M.A. Industries Ltd., 1993 SCC 259 . 7. These decisions have been followed in numerous cases decided thereafter which need not be detailed as this is the established principle of law that even an administrative order which leads to civil consequences must be passed in conformity with the rules of natural justice. 8. Here in the present case it is apparent on the face of record that no opportunity was given to the petitioner before passing the impugned order, therefore, the impugned order is unsustainable in the eye of law. Otherwise also Rule 5 (1) (iii) of the Rules of 1974 provides that if an application seeking compassionate appointment, is made after expiry of five years, the power with respect to the relaxation of period of limitation is vested with the State Government. The proviso further provides that the State Government has to consider the relaxation of the prescribed period of limitation looking into the undue hardship which is going to be caused to an applicant who is seeking appointment. The proviso further provides that the State Government has to consider the relaxation of the prescribed period of limitation looking into the undue hardship which is going to be caused to an applicant who is seeking appointment. Here the duty is casted upon the authority concerned to forward the matter with respect to the relaxation of the period of limitation to the state Government before issuing an appointment letter and once the matter was not forwarded and the appointment letter has been issued the same cannot be cancelled by the appointing authority himself without having version of the petitioner that too in the circumstances where there is no such objection by the State Government. 9. On facts also this is a very hard case where the petitioner has lost her father and mother both, therefore, even if there is any irregularity in issuing the appointment letter that can be cured even without cancelling the appointment letter of the petitioner as the purpose of the Rules of 1974 is to save out the member of the aggrieved family from the financial crunch which has fallen on the family after the death of an employee. Further once an appointment has been offered it will mean that the entitlement of the petitioner on merit under the rules has been considered by the competent authority, in other words after considering entitlement under the Rules of 1974 the appointment letter has been issued and merely because the period of limitation has not been relaxed by the State Government, it cannot be presumed that the order is totally illegal. 10. I am of the view that once an appointment has been considered on merit and appointment letter has been issued, the power of relaxation of period of limitation shall fall under the category of procedural irregularity, which may be cured at any point of time after issuance of appointment letter. In view of that, the writ petition succeeds and is allowed. The impugned order dated 9.11.2006 is hereby quashed. The respondent No. 2 is directed to permit the petitioner to join her service and pay salary in accordance with law. —————