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Allahabad High Court · body

2015 DIGILAW 127 (ALL)

VISHAL KUMAR RATHOR v. STATE OF U. P.

2015-01-19

SUNEET KUMAR

body2015
JUDGMENT Hon’ble Suneet Kumar, J.—The mother of the petitioner Smt. Saroj Kumari was working as an Assistant Teacher in Primary School Guchawali, Jahangirabad, District Bulandshahar, died in harness on 1.10.2008 leaving behind two sons including the petitioner. According to the petitioner, he is qualified and eligible for appointment on the post of Assistant Teacher in a Primary School, run by Basic Siksha Parisad, Allahabad. The respondent No. 3, Secretary U.P. Basic Education Board, Allahabad rejected the application of the petitioner for appointment under the dying in harness rules on 27.4.2010, for the reason, that the father of the petitioner is an employee of the State Government and was drawing salary, hence the petitioner is not entitled to appointment. 2. The order dated 27.4.2010 and the consequential order dated 3.5.2010 passed by respondent No. 2, Secretary, Basic Education Board, Allahabad and respondent No. 3, District Basic Siksha Adhikari, Bulandshahar, respectively, is being questioned in the present writ petition. 3. I have heard the learned counsels for the parties and perused the records. 4. It is not disputed that the provisions of Uttar Pradesh Recruitment of Dependants of Government Servants (Dying in Harness) Rules 1974 (the Rules) is applicable upon the petitioner. Rule 5 provides for recruitment of a member of the family of the deceased. Rule 5(1) reads as follows : “5. Recruitment of a member of the family of the deceased : (I) 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:” 5. It is evident from the Rule 5 that if any member of the family is already employed with the Central Government/State Government/Corporation owned and controlled by the Central Government or State Government shall not be entitled for employment in Government Service. 6. Rule 6 provides the contents that is to be disclosed by the applicant in his application for employment, which reads as follows : “6. Contents of application for employment: (a) ....................... (b) ....................... (c) details of the financial condition of the family; and (d) ......................” 7. The submission of learned counsel for the petitioner is that, the reason assigned that the father of the petitioner was working as a teacher and drawing salary from the State Exchequer is not correct, as the father of the petitioner retired on 7.7.2008 i.e. before the death of his mother. The learned counsel for the petitioner contends that the father of the petitioner is receiving pension from the State Exchequer, but is no longer in employment of the State, hence, petitioner is entitled to appointment under the Rules. 8. According to the learned counsel for the petitioner Rule 5 shall not be applicable upon an employee who has already retired and is drawing pension. 9. The contention of the learned counsel for the petitioner cannot be accepted, Rule 5 and Rule 6 read together, the financial condition of the family is to be taken into consideration, since, the father of the petitioner is receiving pension, which is, deferred payment of salary, it cannot be held that the petitioner would fall within the ambit of Rules for appointment. 10. Full Bench of this Court, rendered in Shiv Kumar Dubey v. State of U.P. and others, 2014(2) ADJ 312 (FB), inter alia held as follows : “(I) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved; (ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules; (iii)The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;” 11. The learned counsel for the appellant contended that the Supreme Court in Govind Prakash Verma v. Life Insruance Corporation of India and others, (2005) 10 SCC 289 , wherein, it was held that family pension to widow of the deceased and other amounts paid on account of terminal benefits under the Rules was wholly irrelevant for the authorities to take into consideration, while considering the case of the incumbent for compassionate appointment. 12. A Division Bench of this Court in Special Appeal No. 867 of 2006 (Punjab Natinal Bank (S/s 687/2005) v. Sri Deepak Pandey, judgment dated 21.11.2013 noticed that the judgment rendered in Govind Prakash Verma (Supra) was considered by the Supreme Court in subsequent judgments rendered in Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra and others, (2008) 11 SCC 384 , the judgment in Govind Prakash Verma’s case was duly considered. The Supreme Court noted that retiral benefits should be taken note of in considering an applicatin for compassionate appointment and, the decision in Govind Prakash Verma had not taken notice of the earlier binidng precedents of the Supreme Court. 13. In a more recent judgment in Union of India and another v. Shashank Goswami and another, 2012 STPL (Web) 320 SC, all the earlier judgments have been noted including the judgment in Govind Prakash Verma. The Supreme Court held that having regard to the scheme involved in that case the retiral and terminal benefits were required to be considered and since the scheme laid down a cap or limit, an application for compassionate appointment was not eligible in respect of a Group ‘C’ post. 14. The standard for judicial review has been reiterated in a decision of the Supreme Court in Union Bank of India and others v. M.T. Lateesh, (2006) 7 SCC 350 , where the Supreme Court held as follows: “37. 14. The standard for judicial review has been reiterated in a decision of the Supreme Court in Union Bank of India and others v. M.T. Lateesh, (2006) 7 SCC 350 , where the Supreme Court held as follows: “37. It is also settled law that the specially constituted authorities in the rules or regulations like the competent authority in this case are better equipped to decide the cases on facts of the case and their objective finding arrived on the appreciation of the full facts should not be disturbed. Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. The Bank had considered the application of the respondent in terms of the statutory scheme framed by the Bank for such appointment. After that even though the Bank found the respondent ineligible for appointment to its service, the High Court has found him eligible and has ordered his appointment. This is against the law laid down by this Court. It is settled law that the principles regarding compassionate appointment that compassionate appointment being an exception to the general rule the appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family. The respondent is not entitled to claim relief under the new Scheme because the financial status of the family is much above the criterion fixed in the new Scheme.” 15. Finally, it would be necessary to take note of the decision in State Bank of India and another v. Somvir Singh, (2007) 4 SCC 778 , where the parameters for the interference of the High Court have been laid down in the following observations: “13. In our considered opinion, the High Court itself could not have undertaken any exercise to decide as to what would be the reasonable income which would be sufficient for the family for its survival and whether it had been left in penury or without any means of livelihood. The only question the High Court could have adverted itself to is whether the decision-making process rejecting the claim of the respondent for compassionate appointment is vitiated?” Whether the order is not in conformity with the scheme framed by the appellant Bank? It is not even urged that the order passed by the competent authority is not in accordance with the scheme. It is not even urged that the order passed by the competent authority is not in accordance with the scheme. It is well-settled that the hardship of the dependant does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to the scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant Bank. It is not a case where the dependants of the deceased employee are left “without any means of livelihood” and unable to make both ends meet. The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant Bank that the respondent was not living hand-to-mouth. As observed by this Court in G.M. (D&PB) v. Kunti Tiwary, the High Court cannot dilute the criterion of penury to one of “not very well-to-do”. The view taken by the Division Bench of the High Court may amount to varying the existing scheme framed by the appellant Bank. Such a course is impermissible in law.” 16. In such circumstances, the petition fails being devoid of merit and is, accordingly, dismissed. 17. No order as to cost. ——————