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Allahabad High Court · body

2016 DIGILAW 2010 (ALL)

RAJESH KUMAR v. STATE OF U. P.

2016-05-24

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner has preferred this writ petition for issuance of a direction upon the respondents to consider his claim for the appointment on the post of Class III in the Judgeship of Meerut. 2. A brief reference to the factual aspect would suffice. 3. The petitioner’s father was working on the post of ‘Prasar Wahak’ in the Judgeship of Meerut. He unfortunately died on 20.6.2013 while in-harness. His mother had also died in the year 2012. The petitioner is a graduate. After the death of his father, he moved an application on 2.11.2013 for his appointment on compassionate ground. 4. It is stated that the Administrative Committee of the Judgeship considered his grievance and directed the Chief Medical Officer, Meerut for his medical examination. The Chief Medical Officer found the petitioner medically fit and issued a fitness certificate on 6.11.2013. 5. The grievance of the petitioner is that the petitioner possesses the essential qualification for appointment on Class III post and Administrative Committee had also recommended for the same. However, the District Judge vide order dated 15.2.2014 has appointed the petitioner on a Class IV post on temporary basis. 6. The petitioner joined his services as Class IV employee and presently he is working on the said post. However, he made an application for his appointment on a Class III post on the ground that that the Administrative Committee had found him eligible for a post of Clerk and not as a Class IV employee but he has been wrongly appointed on temporary basis as Class IV employee. 7. Heard learned counsel for the petitioner, learned Standing Counsel and the learned counsel for respondent Nos. 2, 3 and 4. 8. Learned counsel for the petitioner submits that the petitioner is qualified for the appointment on the Class III post. The Administrative Committee also recommended his appointment on a Class III post. This fact is also evident from the medical certificate wherein it is mentioned that the petitioner is medically fit for appointment on the post of Class III. 9. Lastly, it is urged that the order of the District Judge offering him temporary appointment is illegal as appointment on the compassionate ground is always of permanent nature. 10. This fact is also evident from the medical certificate wherein it is mentioned that the petitioner is medically fit for appointment on the post of Class III. 9. Lastly, it is urged that the order of the District Judge offering him temporary appointment is illegal as appointment on the compassionate ground is always of permanent nature. 10. Learned counsel for the respondent No. 2 submits that the petitioner has accepted the offer to join Class IV post and accordingly he is working as a Class IV employee, hence, he cannot claim higher post after joining on the Class IV post. He further submits that the appointment on compassionate ground is not a matter of right but it is offered to enable the family to tide over the sudden crises. 11. I have considered the rival submission and perused the record. 12. It is a common ground that the respondent No. 2, the District Judge issued an appointment letter to the petitioner on 15.2.2014 appointing him as ‘Chaukidar’ on temporary basis. 13. Pursuant to the said appointment letter, the petitioner joined his services and is working as Class IV employee. The case of the petitioner that after joining of his service, he came to know that he has been appointed as a Class IV employee, does not inspire confidence for a variety of reason. The petitioner is graduate and educated person and it cannot be believed that without going through the terms and conditions of the appointment letter, he submitted his joining. It is well-established law that appointment on compassionate ground is not a vested right such appointment is made purely on the humanitarian consideration in departure of prescribed procedure under he law. In strict sense it is violative of Article 14 and 16 of the Constitution but an exemption has been carved out on humanitarian ground because the deceased employee leaves the family in penury and without any means of livelihood. The object is to relieve the family of the financial destitution. The compassionate appointment enables the family to tide over the sudden crises. 14. The rules relating to compassionate appointment which permit side door entry has been given strict interpretation. In other State where no statutory rules are made, the Supreme Court has held that compassionate appointment can be directed to be given only in a clear vacancy. 15. The compassionate appointment enables the family to tide over the sudden crises. 14. The rules relating to compassionate appointment which permit side door entry has been given strict interpretation. In other State where no statutory rules are made, the Supreme Court has held that compassionate appointment can be directed to be given only in a clear vacancy. 15. Now coming to the case in hand, the petitioner has accepted the appointment on Class IV post without any demur. As observed above, his stand that he was not aware about his Class IV appointment is untrue and misleading. 16. The issue that once having accepted an appointment on compassionate ground, no further consideration would ever arise came to be considered by the Supreme Court and this Court in several decisions. 17. In the case of I.G. (Karmik) and others v. Prahalad Mani Tripathi, (2007) 6 SCC 162 , the father of the petitioner was Constable in Uttar Pradesh Police. He died in harness. The petitioner, who was son, was appointed as a Peon. He accepted the said appointment without any demur. Later, he moved an application before the Uttar Pradesh Services Tribunal, Lucknow raising his absorption for the post of Constable (M) on the ground that he possess qualification for the said post. The Tribunal issued a direction for his appointment in Class III post with a further direction that the services rendered by him on the post of Peon be counted towards his pensionary benefits in Class III posts. 18. Dissatisfied with the order of the Tribunal, a writ petition was filed before this Court which was dismissed. The Supreme Court set aside the orders of the High Court and the Tribunal and held that once the right his consummated, there was no question of consideration on higher post. Paragraph No. 9 is extracted as under : “9. In State of Rajasthan v. Umrao Singh, this Court has categorically stated that once the right is consummated, any further or second consideration for higher post on the ground of compassionate would not arise.” 19. In the said case the Supreme Court had relied on its earlier judgment in the case of State of Rajasthan v. Umarao Singh, (1994) 6 SCC 560 . In the said case the Supreme Court had relied on its earlier judgment in the case of State of Rajasthan v. Umarao Singh, (1994) 6 SCC 560 . In the State of Rajasthan’s case the Court has held that once the appointment has been accepted, the right of the dependent of the deceased employee is exhausted, and no further consideration would ever arise. Paragraph No. 8 of the said judgment is quoted hereinbelow : “8.Admittedly the respondent’s father died in harness while working as Sub-Inspector, CID (Special Branch) on 16.3.1988. The resondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.012.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of “endless compassion”. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.” 20. Similar view has been taken by the Supreme Court in the case of State of M.P. and others v. Ramesh Kumar Sharma, 1994 Suppl. (3) SCC 661 and has held that the applicant for the compassionate appointment has no right to a particular post of his choice. The object of the appointment on compassionate ground is penurious conditions of the deceased family and to enable the family to get over the financial crises. It is not a vested right. The relevant part of the judgment of the Supreme Court reads as under : “3. Learned counsel for the appellants has contended that under the instructions in question the respondent is not entitled to a higher post of his choice merely because he fulfills the requisite eligibility qualifications. Learned counsel for the respondent has attempted to defend his case by citing the illustration of another applicant, Rajiv Dwivedi- who, according to him, was appointed in similar circumstances as APP-Grade II. Learned counsel for the respondent has attempted to defend his case by citing the illustration of another applicant, Rajiv Dwivedi- who, according to him, was appointed in similar circumstances as APP-Grade II. The facts relating to Rajiv Dwivedi are not on record and it is the mere assertion of the respondent that the circumstances are identical. Even assuming that Rajiv Dwivedi’s case was similar to that of the respondent, the applicant has no right to any particular post of his choice, he can only claim to be considered for that post. It would ultimately be for the authority to decide if some common principle was involved in the two cases. If a mistake was committed in an earlier case that cannot be a ground for directing the State to perpetuate the error for all times to come. Learned Counsel for the respondent has not been able to show before us any rule or Government instructions under which the respondent can claim the post of App-Grade II. 4. In these facts and circumstances, we think that the Tribunal was not right in allowing the case of the respondent. Accordingly, the appeal is allowed, the impugned judgment is set aside and the prayer of the respondent for his appointment as App-Grade II is rejected. It will, however, be open to the respondent to indicate his agreement to accept the post of lower divisional clerk which was offered to him by the appellants in 1988 and if he does so, the appellants shall promptly appoint him against that post. 5. The appeal is allowed without any order as to costs.” 21. A Division Bench of this Court in the case of of Shardanand Tiwari v. State of U.P. and others, 2006(8) ADJ 21 (DB), had occasioned to consider the same issue. In the said case, the petitioner therein was appointed as a Peon on compassionate ground. It was accepted by him under protest since he was qualified to be appointed as Assistant Teacher. He preferred a writ petition for a direction for his appointment on the post of Assistant Teacher on the ground that he was wrongly appointed as a Peon and he had joined the post under protest. Thus, he claims that the joining on the post of a Peon shall not cause any prejudice to his right. The Court held as under : “9. Thus, he claims that the joining on the post of a Peon shall not cause any prejudice to his right. The Court held as under : “9. The protest with regard to an action can only mean acceptance without giving up any of the rights of a person protesting to an action. The protest is a conscious act which is made after fully knowing the rights of the person making protest. The work ‘protest’ would mean that the person protesting had knowledge of his rights on the date when protest was lodged. Coming to the facts of the present case, in the present case the appointment was accepted in the year 1993. Admittedly the amendment in the regulation was made on 2.2.1995 permitting compassionate appointment on a teaching post also. There being no such right with the appellant in the year 1993 to claim appointment on a teaching post, there cannot be any concept of accepting the appointment under protest claiming for a higher appointment. The submission of the appellants counsel that appointment was made under protest is a submission without any substance. The protest prevents waiver of rights. In the year 1993 the appellant had no right for appointment on a teaching post, hence there was no question of any protest with regard to such right. Thus the protest as claimed by the appellant was an empty attempt qua the right for appointment on a teaching post. 10. The submission of learned standing counsel that once compassionate appointment is accepted the right is exhausted, and there cannot be any second consideration for the same right is well founded. The judgment of the Apex Court in State of Rajasthan (Supra) fully supports the said submission. The Apex Court in paragraph 8 of the said judgment has laid down that once the right to be considered for appointment on compassionate ground was consummated there cannot be any further consideration. Paragraph 8 of the said judgment is extracted below: ‘8. Admittedly the respondent’s father died in harness while working as Sub-Inspector, CID (Special Branch) on 16.3.1988. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of ‘endless compassion’. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.” 22. The judgment of the Shardanand Tiwari’s case (supra) was followed by another Division Bench in the case of Kamlesh Kumar Pandey v. State of U.P. and others, MANU/UP/0763/2001. 23. In view of the law laid-down in the aforesaid cases, the claim of the petitioner on higher post is not sustainable. The petitioner has already joined the Class IV post, hence, he is not entitled to be appointed on Class III post. As regards, the recommendation of the Administrative Committee is concerned, it was not binding on the District Judge. It was only on recommendatory in nature. 24. However, I find sufficient force in the submission of the learned counsel for the petitioner that the condition mentioned in his appointment letter that he has been appointed on temporary basis, is illegal. It is well-settled law that the appointment on compassionate basis is on permanent nature. A Division Bench of this Court in the case of Ravi Karan Singh v. State of U.P. and others, 2009(2) ESC 972 (All), has held that the appointment under Dying-in-Harness has to be treated as a permanent appointment. This Court in the following cases has taken the same view. I. Budhi Sagar Dubey v. D.I.O.S., 1993 ESC 21. II. Gulab Yadav v. State of U.P. and others, 1991 (2) UPLBEC 995. III. Dhirendra Pratap Singh v. D.I.O.S. and others, 1991 (1) UPLBEC 427 However, the learned Single Judge has doubted the correctness of this judgment and the matter was referred to a Larger Bench. I. Budhi Sagar Dubey v. D.I.O.S., 1993 ESC 21. II. Gulab Yadav v. State of U.P. and others, 1991 (2) UPLBEC 995. III. Dhirendra Pratap Singh v. D.I.O.S. and others, 1991 (1) UPLBEC 427 However, the learned Single Judge has doubted the correctness of this judgment and the matter was referred to a Larger Bench. The Division Bench in Ravi Karan Singh (supra) has held 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 Rules 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 appointment under Dying-in-Harness Rules is a permanent appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments.” 25. In the case of Nagesh Kateria v. State of U.P. and others, 2009(6) ADJ 244 , the judgment of Ravi Karan Singh (Supra) has been consistently followed by this Court. A Division Bench of this Court in the case of Yogendra Ram Chaurasia v. State of U.P. and others, 2003 (5) SLR 289, has taken the same view. 26. Recently, a Full Bench in the case of Sr. General Manager, Ordnance Factory v. Central Administrative Tribunal and others, 2016(2) ADJ 751 (FB), has quoted with approval the judgments of Ravi Karan Singh (Supra), Sanjai Kumar v. Director General (NCE) Directorate, (2002) 3 UPLBEC 2748 and Ram Chandra v. State of U.P. and others, (2008) 2 ESC 1053 . Before the Full Bench the issue was slightly different and the following three questions were referred. “1. Where a person is granted compassionate appointment as a member of the family of a deceased employee of the Government who has died in harness in relaxation of the normal rules for recruitment, is it not necessary that even a compassionate appointee be placed on probation in the first instance, in the same manner as any other direct recruit, since the provision pertaining to appointment on probation has not been excluded or exempted in the case of a compassionate appointment; 2. Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, whether there is any violation of law or principle in appointing a person in this category on probation in the first instance; 3. In view of the clear distinction in service jurisprudence between a regular and a temporary appointee, whether the appointment of a person on a compassionate basis on probation is permissible in law.” 27. The Full Bench has answered the said questions in paragraph No. 30 of the its judgment in the following terms : “30. We, accordingly, answer the questions which have been referred to the Full Bench in the following terms; (1) Re Question (1): Where a person is appointed on a compassionate basis as a dependent member of the family of an employee of the State who has died in harness, such an appointment can be made on probation. The object and purpose of appointing a person on probation is to determine the suitability of the person for retention in service. Appointment of a person who is engaged on a compassionate basis on probation is not contrary to law or unlawful. (2) Re Question (2): Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, such an appointee can be placed on probation in the first instance; (3) Re Question (3); The appointment of a person on a compassionate basis on probation is permissible in law.” 28. In the present case, only question No. 2 is relevant. As regard to question No. 1 before Full Bench, it was considering the office memorandum issued by the Government of India in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) whereby a scheme was formulated for compassionate appointment under the Central Government. In the said scheme it was provided that the compassionate appointment shall be made and the appointee shall be placed on probation. In the statutory rule 1974, no such condition has been mentioned. Hence, only question No. 2 decided by the Full Bench is relevant for our purpose. 29. For the foregoing reason, I am of the view that the appointment of the petitioner shall be treated on the permanent basis and not on the temporary. 30. In the statutory rule 1974, no such condition has been mentioned. Hence, only question No. 2 decided by the Full Bench is relevant for our purpose. 29. For the foregoing reason, I am of the view that the appointment of the petitioner shall be treated on the permanent basis and not on the temporary. 30. With the aforesaid observation, the writ petition is disposed of.