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2014 DIGILAW 585 (UTT)

Bhim Singh Rawat v. State of Uttarakhad

2014-12-16

D.K.KOTIA, J.C.S.RAWAT

body2014
Judgment [Per: Hon'ble Justice J.C.S. Rawat, Chairman] This claim petition has been filed by the petitioner for the following relief: "In view of the facts mentioned in Para 6 above, the applicant prays for the following relief: (i) That an order or direction to quash the reversion order dated 2.9.2006 (contained as Annexure-1) be passed. (ii) That an order or direction to the opposite parties be passed to allow the petitioner to work and pay the arrears of salary of the post of Junior Clerk with all consequential benefits. (iii) That any relief, which this Hon'ble Tribunal may deem fit and proper in the interest of justice, be passed. (iv) That the cost of the petition be awarded to petitioner." 2. The petitioner was initially appointed in the Health Department as Lab Assistant pursuant to the order dated 8.2.1978 and he joined the services on 12.2.1978. Thereafter the petitioner was promoted as Junior Clerk on 21.7.1987 by order of the Joint Director, Medical Health and he was confirmed on the said post. The petitioner was reverted back to the post of Lab Assistant on 30.10.1997 and was placed as Class-IV employee as Lab Assistant in the establishment. The said promotion of petitioner in the year 1997 was challenged before the U.P. Public Services Tribunal and the said claim petition was partly allowed by the Tribunal. The claim petition was preferred by one Smt. Savitri Arya, who was aggrieved by the said promotion of the petitioner as she being senior to the petitioner, was left over by the department concerned. The petitioner had been serving as Junior Clerk for the last 10 years and he has been abruptly reverted back to the post of Lab Assistant without any rhyme and reason in the year 1997. The said matter was challenged before the Hon'ble High Court of Lucknow Bench in writ petition and the matter was transferred to the Hon'ble Uttarakhand High Court. The Hon'ble Uttarakhand High Court set aside the reversion order and directed to reinstate the petitioner on the post of Junior Clerk on which post he has been working at the time of reversion and the liberty was given to the respondents to pass a fresh order if the circumstances so requires after affording an opportunity of hearing to the petitioner. The said order of the Hon'ble Court was passed on the ground that the petitioner had not been given an opportunity of hearing before passing the impugned order dated 30.10.1997. The writ petition was allowed on 7.7.2005 by the Hon'ble Uttarakhand High Court. The petitioner was given joining as Junior Clerk under the C.M.O., Champawat. Again the petitioner was given a show cause notice by the respondents and the petitioner submitted his reply to the show cause notice to the respondents within the stipulated period. The petitioner was again reverted back to the Class IV post of Lab Assistant by the impugned order. The petitioner has further alleged in his petition that the father of the petitioner died on 12.11.1977 during his services and the petitioner was entitled for appointment on the Class III post as per his qualification but the petitioner was appointed on the Class IV post as Lab Assistant not in accordance with Dying in Harness Rules, likewise other daily wagers, who were working since 1976 with him. The petitioner was neither given benefit under Dying in Harness Rules nor he was given compassionate appointment. The petitioner was entitled for the Class III post on the compassionate ground as per his qualification. The petitioner made a representation on 25.11.1977 requesting to the Joint Director, Medical Health Department, Patwadangar, Nainital to give him appointment under the Dying in Harness Rules in place of his father according to his qualification to meet the distress of the family of the deceased father. The petitioner was making representation since long after the appointment as Lab Assistant. Ultimately, the Joint Director made his appointment and promotion in the year 1987 as Junior Clerk. The petitioner has further alleged that the petitioner has completed 10 years in service on the Class III post and he was duly qualified for the appointment on Class III post under the Dying in Harness Rules and respondents misrepresenting the order of the Hon'ble Court, passed a fresh illegal and arbitrary reversion impugned order and he prayed that the said order be quashed and he may be reinstated again as Class III employee. 3. Written statement was also filed by the respondents. All the averments made in the claim petition were denied by the respondents. 3. Written statement was also filed by the respondents. All the averments made in the claim petition were denied by the respondents. It is admitted to the respondents that the petitioner has taken the benefit of compassionate appointment on 8.2.1978 by which he had been appointed as Lab Assistant and he had joined the services on Class IV without any protest, so his right to be again appointed to Class III post, that too in the promotional post, was not sustainable in the eyes of law. It is further alleged that at the time of passing of the promotion order of the petitioner, the U.P. Recruitment of Dependent of Government Servant Dying in Harness Rules, 1974 had come into force and all earlier Government orders stood superseded by the said Rules. The appointing authority has not taken into account the Rules applicable at the time of the passing of the promotion order and perusal of the promotion order reveals that the relaxation has been granted according to the Government. Order dated 21.12.1973. It is further alleged in the W.S. that the said Rules or the Notification of 1973 did not provide the relaxation to be given to the petitioner by the appointing authority. Thus, the order of the appointing authority is not sustainable in the eyes of law. The said promotion order was challenged by one Smt. Savitri Arya before the U.P. Public Services Tribunal in claim petition No. 290/II/1989, in which the petitioner was Respondent No.4 as a party to the claim petition. The Public Services Tribunal in its judgment partly allowed the petition and directed to the respondents to consider the case of the petitioner to the post of Junior Clerk w.e.f. 31.7.1987 when the Respondent No.4 was promoted, in which the promotion of the Respondent No.4 was also found illegal. The petitioner had challenged the order of reversion passed by the competent authority in the year 1997 in writ petition before the Hon'ble Allahabad High Court which was transferred to the Hon'ble Uttarakhand High court as writ petition No.1259/SS/2006, in which the petition was allowed only on the ground that the petitioner was not given proper opportunity of hearing before passing the said impugned order, as such the order was set aside and the respondents were given a liberty to issue a show cause, then to pass the appropriate order, if so requires. Ultimately, the respondents have prayed that the claim petition of the petitioner be rejected. 4. We have heard learned counsel for the parties and perused the record. 5. Perusal of the record reveals that the impugned order was passed by the authority concerned in August, 2006. It is revealed from the perusal of the record, a show cause notice was given and thereafter the services of the petitioner were reverted back to the Class IV post as Lab Assistant. The reply submitted by the petitioner was also considered by the competent authority. It was observed by the competent authority while passing the impugned order that the petitioner's appointment under the Dying in Harness Rules in the year 1987 was against the Rules and as such the petitioner is liable to be reverted back to his original post. 6. Ld. Counsel for the petitioner contended that the petitioner's father died on 12.11.1977 and he was qualified to be appointed as Class III employee and he was holding a degree of B.Com, but the petitioner was appointed on Class IV post of Lab Assistant not against Dying in Harness Rules, likewise other daily wagers who were working on daily wages basis since 1976. The petitioner was not given the benefit of the said rules and was not given appointment on the compassionate ground despite the fact that the petitioner was entitled for the Class III post on compassionate ground. Ld. Counsel for the petitioner further contended that the petitioner was promoted on 31.7.1987, in which it is specifically indicated that the Government Order dated 21.12.1973, which pertains to the appointment of the Dying in Harness candidates, was relaxed and he had been given appointment as Junior Clerk. Respondents had refuted the contention in their written statement and have taken a plea that petitioner was appointed under the Dying in Harness Rules and his promotion was not in accordance with law as such the order is not sustainable. In fact the plea of Dying in Harness is an afterthought only to justify the promotion of the petitioner. It is clear that the principle of Dying in Harness is applied for direct recruitment and not in promotion. 7. Before proceeding with the respective contentions of the parties, we would like to mention the nature of the appointment given under Dying in Harness Rules. It is clear that the principle of Dying in Harness is applied for direct recruitment and not in promotion. 7. Before proceeding with the respective contentions of the parties, we would like to mention the nature of the appointment given under Dying in Harness Rules. The appointment in public services on compassionate ground has been carved out as an exception, in the interest of justice to the general rule that appointments in the public services should be made strictly on the basis of open invitation of applications and merit and no other mode of appointment nor any other consideration is permissible. A compassionate appointment is made out of pure humanitarian consideration on account of the fact that unless some source of livelihood is provided the family would not be able to make both ends meet. The whole object of granting such appointment is to enable the family to tide over the sudden crisis. It is also well settled position of law that an appointment on compassionate ground has to be given in accordance with the relevant rules and guidelines that have been framed by the authority concerned and no person can claim appointment on compassionate grounds in disregard of such rules or guidelines. The compassionate appointment cannot be held to be a regular appointment under the provisions of the law, though it confers the right, benefits of the regular employee. 8. Under the above scenario we will examine the case of the petitioner. The petitioner had been working as a daily wager in the Health Department, State Vaccine Institute, Patwa Dangar, thereafter he was appointed as Lab Assistant on Class IV post on 8.2.1978 and he joined his services on 12.2.1978. The petitioner in Para 4 (13) of his claim petition has specifically mentioned that he was appointed on the post of Class IV not against the Dying in Harness Rules, but he was appointed as other daily wagers, who were working on daily wages basis since 1976 and the petitioner was not given benefit of Dying in Harness Rules and was not given appointment on compassionate ground despite the fact that the petitioner was entitled for Class III post on compassionate ground as per his qualification. The petitioner has wrongly mentioned that he was B.Com at the time of the appointment in Class IV. The petitioner has wrongly mentioned that he was B.Com at the time of the appointment in Class IV. Perusal of the judgment of the Public Services Tribunal reveals, in which it has been held that the petitioner was holding a degree of Intermediate at the time of death of his father. Though the Tribunal has also held that qualification for promotion to Class III from Class IV post, only High School is needed. This judgment of the Tribunal between the parties has become final. Thus, the petitioner claimed according to para-13 that he was never appointed in class-IV under Dying in Harness Rules. 9. Now we have to analyze, if he has not been appointed against the Dying in Harness Rules on Class IV post, whether his right to seek employment under Dying in Harness Rules remains alive or not? For the same we will like to refer the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. Rule 5(1) of the 1974 Rules specifically indicates as under: "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 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." 10. This clause provides two important clauses: (i) the right of seeking employment on compassionate appointment, he must not be in any employment under the Central Government or State Government or the Corporation owned or controlled by the Central or State Government. The day the petitioner joined as Class IV employee as Lab Assistant, he ceases to be a candidate for the appointment under Dying in Harness Rules. As we have pointed out earlier that the compassionate appointment is only given to tide over the sudden crisis of the deceased family and it is not a right to claim an appointment on the basis of the death of his father. Thus, if he has been given an appointment, though it is on a regular basis, he ceases to seek compassionate appointment on the ground of distress of the family. His right to seek appointment after joining as Lab Assistant in Class IV post ceases to be appointed on any of the post. It is not the choice of the appointee to be appointed on the post according to his own choice; it is the appointing authority who takes the overall situation into consideration and thereafter gives the appointment to the appointee. 11. Now the question is to be decided as to whether the petitioner was entitled to get the promotional post after a period of 10 years on compassionate ground or not? Whether the authority was competent to grant such appointment after 10 years or not? At the outset we would like to mention the findings given by the U.P. Public Services Tribunal in its judgment, in which the petitioner was a Respondent No.4. The Tribunal has held that the Respondent No.4 raised a plea before the Tribunal that his appointment was made in the year 1987 under the Dying in Harness Rules and he was qualified to be appointed on the said post. The Tribunal dealt with this plea in its Para 7, in which it has been held as under: "That the second contention of the petitioner was that she is senior to the Respondent No.4 and therefore, she should have been promoted to the post of Clerk earlier than O.P. No.4. O.Ps. have contended that O.P. No.4's father was working in the department and he died in the year 1978 and therefore, on the basis of Dying in Harness, the petitioner was promoted and appointed as Clerk. O.Ps. have contended that O.P. No.4's father was working in the department and he died in the year 1978 and therefore, on the basis of Dying in Harness, the petitioner was promoted and appointed as Clerk. This argument has no force. O.Ps. No.4 was working as Daily Wager in the department when his father died in the year 1978 but no benefit was given to O.P. No.4 due to death of his father and only in 1987, O.P. No.4 was promoted to the post of Clerk. The promotion order of O.P. No.4 is contained in Annexure-A dt. 31.7.1987 with additional C.A./W.S. of O.P. No.2, which shows that O.P. No.4 was promoted and appointed. There is no evidence that whether he has been promoted or appointed. I agree with the argument of learned counsel of the petitioner. In fact the plea of dying-in-harness is an after thought only to justify the promotion of O.P. No.4. It is clear that the principle of dying-in-harness is applicable for direct recruitment and not in promotion. The promotion letter clearly shows that he was appointed and promoted as Class-III but not directly appointed as Class III and as such this plea of O.Ps. have no meaning or value". Above quoted paragraph clearly lays down that the principle of Dying in Harness is not applicable in the promotion, as such this order has become final because he has not preferred any writ petition or SLP before the Hon'ble High Court or Hon'ble Supreme Court respectively. As such the finding is final against the respondents. 12. Apart from that the second question arises as to whether after about 10 years of the death of his father, can he claim appointment under dying in harness? As we have quoted Rule 5 above, the proviso clearly provides the time limit of 5 years to give an application and in case of application submitted after the prescribed period, only the Government can relax the time limit. Thus, in this case the limit prescribed 5 years to submit an application also elapsed and after 10 years the appointment has been given. Purposes of granting such appointment is only to give some relief to the distressed family immediately after the death of the bread earner. Thus, in this case the limit prescribed 5 years to submit an application also elapsed and after 10 years the appointment has been given. Purposes of granting such appointment is only to give some relief to the distressed family immediately after the death of the bread earner. If the bread earner of the family all of a sudden leaves the family and dies, if the family is not given any help, the family will come on the road to their daily livelihood. According to the constitutional provisions, the State is a welfare State of the people, so it is the duty of the State to take care of its people in all the respects. The State being a welfare State has thought it fit to make such Rules to meet the crises of the distressed family and to provide an immediate appointment at least to one person of the family. It does not mean if the family had its own resources as to meet the distress and had survived for long period and still they are surviving with the help of other resources after the death of the deceased, the right of the compassionate appointment would still persist. The Hon'ble Apex Court in Para 2 of Umesh Kumar Nagpal Vs. State of Haryana 1994 (4) SCC p/138 has held as under: "...................... The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if 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 posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution......................." 13. The Hon'ble Supreme Court in J & K & others Vs. Sajad Ahmed Mir 2006 (5) SCC 766 has held as under: "Compassionate appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution." Thus, after 10 years the family of the petitioner has survived. The petitioner has got an appointment as a Class IV employee in the establishment and the right to seek further employment on that basis is closed. 14. In the next question, which has been argued by the Id. Counsel for the petitioner that he has worked at least for 10 years in the department as a Junior Clerk, hence his right has accrued to remain on the said post. As we have pointed out earlier that the order, which was passed by the Joint Director to appoint and promote the petitioner as Junior Clerk, was totally against the provisions of law. As we have pointed out earlier that the order, which was passed by the Joint Director to appoint and promote the petitioner as Junior Clerk, was totally against the provisions of law. The Tribunal has held (Annexure-R-11) that the petitioner had taken a plea before the Tribunal in claim petition No. 390/II/1989 that in the year 1979 applications were invited for the post of Clerk but the petitioner of that claim petition (Smt. Savitri Arya) did not apply for the said post, therefore, she was not considered. O.P. No.4 (petitioner Shim Singh Rawat) along with other persons applied for the said post, therefore he was considered and promoted. The Tribunal found that this argument is totally baseless and held that, it was of no concern with the promotion of 1987 after 8 years and it was found that the petitioner (Smt. Savitri Arya) was illegally superseded for the said post. It is clear from the judgment of the Tribunal that the petitioner has taken an inconsistent plea before the Tribunal also. The matter has already been adjudicated before the U.P.P.S.T. and it was held that the petitioner's claim is baseless in the year 1997 when the petition was partly allowed. As such the petitioner's appointment/promotion was under challenge immediately after the promotion. Petitioner's appointment/promotion was not in accordance with the statutory Rules, hence it is liable to be vitiated as it being void and non-est in the eyes of law. It is also established that the promotion also includes the appointment. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Tribunal while observing the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. Therefore, consistent with the scheme for public employment, this Tribunal while observing the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. While directing that appointments, temporary or casual, be regularized or made permanent, Tribunal/Courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or of compassionate appointment dehors the rules, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain, not at arm's length since he might have been over expecting his promotion by a circuitous route by overlooking the provisions of law and knowingly joined the promotional post. The ignorance of law is no excuse. (See Secretary State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 ). If the appointment is void ab-initio and illegal, no right accrues to the party concerned and such appointment and promotion is non-est in the eyes of law. In view of that, the petitioner is not entitled to remain on the said post. 15. The respondents have specifically made the allegation in the written statement in Para 15 that on the request of the petitioner, the petitioner was appointed as Lab Assistant on 8.2.1978 and he joined the services as Lab Assistant on 12.2.1978. If the petitioner had desired to be appointed in Class-III post as compassionate appointee, he should not have joined the Class-IV services and he could have protested that he should be given the Class III post in the establishment. It was further alleged that once he has got the job, his right to seek further employment on the basis of the death of his father ceases to exist. From the perusal of the record it is revealed that the petitioner had joined the services prior to the death of his father as daily wager, whereas he was given regular appointment in the establishment as Lab Assistant on 8.2.1978. Hon'ble Allahabad High Court in the case of Kamlesh Kumar Pandey Vs. From the perusal of the record it is revealed that the petitioner had joined the services prior to the death of his father as daily wager, whereas he was given regular appointment in the establishment as Lab Assistant on 8.2.1978. Hon'ble Allahabad High Court in the case of Kamlesh Kumar Pandey Vs. State of U.P. and another E.S.C.(AII) 1612 has held that, it is settled proposition of law if the petitioner once appointed on Class-IV post in the past, cannot claim in future in view of his educational qualification reconsideration of his case on Class III post. Having accepted appointment on Class-IV post may be under unavoidable and compelling situation, question of distress or immediate hardship which is a condition precedent sine qua non for compassionate appointment, does not exist. However, in this case the petitioner in Para 13 of the claim petition has specifically stated he was appointed as Class-IV employee as Lab Assistant not against the Dying in Harness Rules, he was only given regular appointment against the post of lab Assistant as other daily wagers, who were working with him since 1976 were given permanent appointment. So he got the appointment without any relaxation of Rules. However, in para 21 of the supplementary rejoinder affidavit the same plea has been taken and as such the petitioner's case is that at no point of time his appointment as Class-IV was made under the Dying in Harness Rules. The appointment letter also reveals that he was appointed as general candidate. There is no reference of the Dying in Harness Rules while appointing the petitioner. Thus, the contention of the respondents need not be elaborately deal with though we agree with the contention of the respondents on the point of law. 16. In the rejoinder affidavit the petitioner has tried to seek the intelligence of the Court that if he would have been a Class-IV employee as Lab Assistant and he would not have been promoted in the year 1987 and he would have been promoted in the year 1996 from Lab Assistant to higher post. Though the petitioner had not made an specific prayer to grant the benefit of the above nature in the claim petition. Though the petitioner had not made an specific prayer to grant the benefit of the above nature in the claim petition. It is settled principle of Law that if the claim petition did not contain any pleading or relief that cannot be considered at a later stage by way of arguments or evidence, the petitioner must plead his plea in claim petition along with relief. The Ld. Counsel could not demonstrate that this fact has been pleaded in claim petition. If the petitioner would have pleaded, the respondents had an opportunity to deal with the plea in the W.S. However, it would be just and proper to direct the contesting respondents that they would consider the representation of the petitioner in case he submits his representation to contesting respondents within two months. In view of the above the petition fails and is liable to be dismissed ORDER 17. The claim petition is dismissed. No order as to cost.