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2014 DIGILAW 3011 (ALL)

ANURADHA RAI v. UNION OF INDIA

2014-09-25

ATTAU RAHMAN MASOODI

body2014
JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Heard Shri Rahul Jain, learned counsel for the petitioner and Shri R.B. Singhal, learned Senior counsel assisted by Shri Ram Krishna Mishra for Union of India. 2. By means of this writ petition, the petitioner has challenged the order dated 4.5.2011 whereby her claim for appointment under the scheme for compassionate appointment applicable to Central Government employees has been refused simply on the ground that the petitioner did not qualify in the requisite type test, therefore, instead of ministerial wing she may opt for appointment against a general duty post. 3. Before coming to the validity of impugned order, it is relevant to deal with the objection as to the territorial jurisdiction of this Court which has been raised by the learned Additional Solicitor General appearing for the Union of India. This objection is raised at this stage when the matter is ripe for hearing and almost three years have already lapsed. In order to repel the objection, learned counsel for the petitioner has submitted that the petitioner being a resident of District Chandauli, U.P. has participated in the selection proceedings that took place at Allahabad and as such, cause of action or at least a part of cause of action has arisen within the territorial jurisdiction of this Court therefore, this High Court shall have jurisdiction to entertain the writ petition and decide the same on merit. To the extent that selection took place at Allahabad, there is no dispute. 4. The territorial jurisdiction is objected solely on the ground that the final order has been passed at Kolkata and for the purposes of granting relief to the petitioner, a direction is to be issued to the authorities whose offices are situated outside the territorial jurisdiction of this Court. Objection to the territorial jurisdiction in the proceedings under Article 226 of the Constitution of India is entertained in the larger interest of justice. One of the considerations is to avoid conflicting decisions of the High Courts on a particular issue. In an individual grievance seeking appointment under the scheme of compassionate appointment, the petitioner in the writ petition has categorically stated in paragraph-1 that as regards the subject-matter, she has not availed of any remedy before any other Court. One of the considerations is to avoid conflicting decisions of the High Courts on a particular issue. In an individual grievance seeking appointment under the scheme of compassionate appointment, the petitioner in the writ petition has categorically stated in paragraph-1 that as regards the subject-matter, she has not availed of any remedy before any other Court. In such a situation, the objection regarding issuance of a writ or direction to the authorities beyond the territorial jurisdiction of this Court, the matter is to be weighed so as to advance the cause of justice. The present case seeking compassionate appointment under a scheme is one of those cases where a litigant is not to be made to run from pillar to post in the pursuit of justice. Once the selection had taken place within the territorial jurisdiction of this Court which is an undisputed fact, the objection at this stage of proceedings cannot be entertained and is liable to be rejected. 5. Now coming to the merits of the case, it is noticed that the petitioner has faced the selection and has qualified for appointment in the qualifying written test. The only impediment coming in the way of her appointment as pointed out in the impugned order is to the effect that she had not touched the maximum typing speed of 24 words in one minute and could type only 21 words per minute. It is not the case that the petitioner did not know typing at all. The appointment on the post of Constable (Ministerial) and Constable general duty stand on different footing for the reason that a person in the ministerial cadre is to be assigned the duties in the offices alone, whereas general duty posts are field posts. The petitioner being a female candidate was entitled to the exemption of typing test as is prescribed under the relevant Rules. The petitioner being a female candidate was entitled to the exemption of typing test as is prescribed under the relevant Rules. In this regard attention of the Court was drawn to Rule 6 which provides for the exemption of type test under Rule 6-(C) and is reproduced below : 6 (c) “In the matter of exemption from the requirement of passing the typing test those appointed on compassionate grounds to the post of Lower Division Clerk will be governed by the general orders issued in this regard : (i) by the CS Division of the Department of Personnel and Training if the post is included in the Central Secretariat Clerical Service; or (ii) by the Establishment Division of the Department of Personnel and Training if the post is not included in the Central Secretariat Clerical Service. (d) Where a widow is appointed on compassionate found to a Group ‘D’ post, she will be exempted from the requirement of possessing the educational qualifications prescribed in the relevant rules provided the duties of the post can be satisfactorily performed by her without possessing such educational qualifications.” 6. From the perusal of aforesaid Rule, it is clear that a candidate having failed to secure the passing speed of type test can be considered for such an exemption by the competent authority under Rule 6-C (i) & (ii). The benefit of this provision is available to a selected candidate for which the matter ought to have been forwarded to the competent authority. The grant of exemption in several instances is quoted in the supplementary-affidavit when similar cases were brought to the notice of competent authority. One such order passed on 7.2.2005 is placed on record as Annexure-3 to the supplementary rejoinder-affidavit. The order dated 7.2.2005 wherein one Vinai Kumar Sharma, Kumari Pratima, Sudha Rani Dubey, Anil Kumar and Kumari Manjoo have been granted exemption is not disputed. All these candidates were given exemption of type test and were appointed as Head Constable (Ministerial) on compassionate grounds. The impugned order does not reject the claim of the petitioner on the ground of non availability of post rather it has been refused on the ground that more general duty posts of Head Constables (general duty) are available therefore, the petitioner may opt for the same by fulfilling the post-selection formalities. The impugned order does not reject the claim of the petitioner on the ground of non availability of post rather it has been refused on the ground that more general duty posts of Head Constables (general duty) are available therefore, the petitioner may opt for the same by fulfilling the post-selection formalities. The authority before whom the matter of exemption ought to have been placed in terms of the Statutory Rules was not done by the concerned authority before passing the impugned order. In this manner, the very consideration of the issue of exemption within the parameters of Rule was prevented to be dealt with as per the procedure prescribed under law. 7. There is no order by the competent authority refusing to grant exemption to the petitioner, on the basis of which, the respondents may deny appointment to the petitioner in the ministerial establishment. Failure on the part of concerned authority to place the matter before the higher authority competent to deal with the issue is clearly an omission resulting into denial of a valid right of consideration which had accrued to the petitioner on the basis of having passed the selection process. The impugned order passed by the authority clearly amounts to circumventing the process of selection as per Rules and such an act on the part of an authority is clearly untenable in the eye of law. The alternative appointment was open to the petitioner only in the event of non availability of post, which fact is not born out from the contents of the impugned order. 8. In the circumstances stated above, the claim of the petitioner is liable to be considered for exemption of type test by the competent authority. 9. In the result, the authority who has passed the impugned order is directed to place the matter before the competent authority for necessary orders. The impugned order dated 4.5.2011 shall not come in the way of consideration of the petitioner’s claim for exemption of type test, and decision in this regard shall be taken by the competent authority within a period of three months from the date a certified copy of this order is produced before him. In case the exemption is allowed the same shall be acted upon by the authorities forthwith and either way necessary steps for implementing the selection shall be taken and process concluded within one month thereafter. 10. In case the exemption is allowed the same shall be acted upon by the authorities forthwith and either way necessary steps for implementing the selection shall be taken and process concluded within one month thereafter. 10. With these observations, the writ petition is finally disposed of. ——————