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2013 DIGILAW 1998 (ALL)

Vikas Kumar v. State of U. P.

2013-08-01

RITU RAJ AWASTHI

body2013
JUDGMENT Ritu Raj Awasthi, J. – Rejoinder affidavit on behalf of petitioner filed today in Court is taken on record. 2. Heard learned counsel for petitioner as well as learned Additional Chief Standing Counsel and perused the record. 3. The writ petition has been filed seeking a writ in the nature of mandamus commanding the opposite parties to appoint the petitioner under U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 (for short the Rules) on a class III post under Group 'C'. 4. Learned counsel for petitioner submits that the mother of petitioner, namely, Smt. Parmeshwari Puri while working on the post of Upcharika in the department of Medical and Health had died on 05.08.2004. The petitioner being dependent of his mother, who was a Government employee, applied for compassionate appointment under the Rules on 11.11.2005. The opposite party no. 4/Chief Medical Officer, Mathura as well as the Superintendent, Community Health Center, Barsana, District Mathura had recommended the case of petitioner for compassionate appointment vide recommendations dated 07.07.2007 and 27.07.2007. It was thereafter that the petitioner was informed vide letter dated 27/28.12.2007 that he will have to appear in the written test on 16.1.2008 at 10 AM for appointment against a class III post. The petitioner appeared in the said typing test, however, he was declared failed, as such, the compassionate appointment was refused to the petitioner. 5. Submission is that the opposite parties have committed gross illegality in rejecting the candidature of petitioner as under the Rules there is no requirement of conducting written test for providing compassionate appointment. 6. It is also submitted that under Rule 8 of the Rules it is provided that the procedural requirement for selection such as written test or interview thereof shall be dispensed with. 7. Learned counsel for petitioner emphasized that in case a person is being considered for compassionate appointment under the Rules, the procedural requirement, if any, for the post in question shall be relaxed and the person shall be given appointment and in case any special qualification is required, then he should be given opportunity to obtain the same afterwards. 8. 7. Learned counsel for petitioner emphasized that in case a person is being considered for compassionate appointment under the Rules, the procedural requirement, if any, for the post in question shall be relaxed and the person shall be given appointment and in case any special qualification is required, then he should be given opportunity to obtain the same afterwards. 8. Learned Additional Chief Standing Counsel, on the other hand, on the basis of counter affidavit submitted that under Rule 5 of Rules a candidate applying for compassionate appointment must fulfill the educational qualification prescribed for the post, he should be otherwise qualified for the Government service and makes an application for employment within five years from the date of death of the Government servant. 9. It is submitted that the competent authority is fully empowered to test the efficiency expected on the post. For judging the efficiency, the competent authority can ask the candidate to undergo written test or any other test to judge the suitability of the person for the post. 10. It is also submitted that the petitioner was considered for a class III post of Typist which requires essential knowledge of typing. The competent authority, therefore, had asked the petitioner to appear in the typing test to judge the suitability of the petitioner for the said post. The petitioner could not qualify the said test, as such, the opposite parties had rightly rejected the candidature of petitioner and he was refused compassionate appointment. 11. I have considered the submissions made by the parties' counsel. 12. The short question involved for consideration before this Court is whether the competent authority can ask the person to undergo in a particular test may be written test or any other technical test for the purpose of judging the suitability of the person while considering the candidature under the Rules. 13. 12. The short question involved for consideration before this Court is whether the competent authority can ask the person to undergo in a particular test may be written test or any other technical test for the purpose of judging the suitability of the person while considering the candidature under the Rules. 13. Rule 5 of the Rules provides that 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 persons fulfills the educational qualifications prescribed for the post or is otherwise qualified for Government service, and makes the application for employment within five years from the date of the death of the Government servant. The period of limitation can be relaxed, in case the State Government is satisfied about the undue hardship in any particular case. 14. Rule 8 of the Rules relates to the relaxation from age and other requirements which provides that the candidate seeking appointment under these rules must not be less than 18 years at the time of appointment. The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards or work and efficiency expected on the post. 15. 15. A conjoint reading of the aforesaid rules indicates that the purpose of the Rules is to provide immediate employment to a dependent of a deceased Government servant and for that purpose the procedural requirement for the post in question such as written test or interview may be relaxed, however, it does not mean that the competent authority while considering the candidature of a person under the Rules cannot judge the suitability of the candidate for the post in question. Under sub-Rule (2) of Rule 8 of the Rules it has been provided that the appointing authority shall be empowered to interview a candidate in order to satisfy itself that the candidate will be able to maintain minimum standard of work and efficiency expected on the post. 16. In the present case, the post in question was of Typist (class III post). For appointment on the post of Typist, the prescribed requirement is knowledge of typing, as such, in order to judge the suitability of the candidate for the said post it was essential for the competent authority to ask the petitioner to undergo typing test. The petitioner was not asked to undergo regular written test or interview while considering his candidature under the Rules, as such, I am of the view that for the purpose of appointment on the post of Typist it was essential for the competent authority to satisfy itself that the petitioner was having minimum standard of qualification for the post of Typist and for that purpose the competent authority had rightly asked the petitioner to undergo the typing test. 17. The import of the Rules does not lead to conclusion that even if a person not having minimum standard of work and efficiency can be appointed on a post in utter disregard to the required qualification. 18. In this view of the matter, in case the opposite parties had asked the petitioner to appear in the typing test to judge his suitability for the post in question, no infirmity or illegality can be attributed. 19. 18. In this view of the matter, in case the opposite parties had asked the petitioner to appear in the typing test to judge his suitability for the post in question, no infirmity or illegality can be attributed. 19. Before parting with the judgment, it is necessary to clarify that vide order dated 31.1.2008 the Chief Medical Officer, Mathura (a copy of which is Annexure No. CA-1 to counter affidavit filed by the opposite parties), while informing the petitioner that he had failed in the typing test had asked the petitioner to submit his application along with necessary documents for appointment on a class IV post so that necessary action may be taken in this regard. 20. As such, in case the petitioner applies for compassionate appointment under the Rules against a class IV post the competent authority shall be free to take suitable action and pass necessary orders in this regard, expeditiously.? 21. The writ petition being devoid of merit is liable to be dismissed. It is accordingly dismissed.