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Allahabad High Court · body

2018 DIGILAW 1495 (ALL)

LALLU CHAUBE v. STATE OF U. P.

2018-07-06

SUDHIR AGARWAL

body2018
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Sanjai Srivastava, Advocate, for petitioner; and, learned Standing Counsel and Sri Abhishek Kumar Dubey, Advocate, holding brief of Sri Sunil Kumar Misra, Advocate, for respondents. 2. This writ petition under Article 226 of Constitution of India has been filed by one Lallu Chaubey, son of Bansh Narain Chaubey, seeking a writ of mandamus directing respondents to pay balance service emoluments and arrears of salary to petitioner and to give appointment to petitioner’s son on compassionate ground under Order 77 dated 3.8.1981 issued by U.P. State Road Transport Corporation (hereinafter referred to as “UPSRTC”). 3. The case set up by petitioner is that he was appointed as Bus Conductor in UPSRTC on 19.11.1980 at Kashi Gramin Depot in District Varanasi. On the allegation that he was continuously absent from duty, a charge-sheet was issued, an ex parte inquiry was conducted and thereafter punishment of ‘Removal’ was imposed upon petitioner by Regional Manager, UPSRTC, Varanasi vide order dated 30.9.1993. The aforesaid order of termination was challenged in Writ Petition No. 47917 of 1993 which was dismissed on the ground of alternative remedy of departmental appeal, vide judgment dated 23.12.1993. Thereafter petitioner preferred an appeal which was allowed and removal order was set aside. Appellate Authority by order dated 22.9.1994 directed for reinstatement of petitioner without salary for the period when he was not in service. Pursuant thereto, petitioner joined on 23.9.1994. Joining report is claimed to have been submitted in the Office of Regional Manager, UPSRTC, Varanasi on 23.9.1994. Petitioner claimed that he had suffered physical incapacity during the period he was out of employment and, therefore, was not able to discharge duties of Bus Conductor. He was directed to attend medical examination before Medical Board, Varanasi which was conducted on 10.10.1994 and 18.10.1994. Medical Board vide letter dated 18.10.1994 informed Regional Manager, UPSRTC, Varanasi that petitioner is unfit for rendering services of Conductor. Since petitioner was found unfit, his wife made representation claiming appointment in place of petitioner in view of Regulation 77. She also made representation to Sri Ram Naresh Yadav, Ex-Chief Minister, U.P. who made a recommendation to Managing Director, UPSRTC. Another recommendation in favour of petitioner’s family was made by Sri Mahendra Nath Pandey, the then Minister, Panchayti Raj vide letter dated 1.12.1999. She also made representation to Sri Ram Naresh Yadav, Ex-Chief Minister, U.P. who made a recommendation to Managing Director, UPSRTC. Another recommendation in favour of petitioner’s family was made by Sri Mahendra Nath Pandey, the then Minister, Panchayti Raj vide letter dated 1.12.1999. Consequently, UPSRTC Head Quarter sought detailed information from Regional Manager, UPSRTC Varanasi in the matter of petitioner’s outstanding dues etc. vide letter dated 1.1.2000. Nothing happened thereafter. Petitioner himself submitted application for providing appointment to his son in his place but even thereafter no order was passed, hence the present writ petition was filed. 4. During pendency of this Writ Petition, Regional Manager, UPSRTC, Varanasi passed order dated 20.10.2000 stating that despite reinstatement order passed by Appellate Authority on 22.9.1994, petitioner never joined hence not entitled to any payment of salary etc. With regard to petitioner’s claim for appointment of his son in place of petitioner, it is pointed out that Regulation 77 has already been substituted by amendment made on 30.9.1997 and only compassionate appointment as a result of death of an employee in harness, in accordance with U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as “Rules, 1974”), is available. Petitioner’s wife’s application for appointment in place of petitioner could not be considered for the reason that petitioner had never joined after his reinstatement and having not become an employee of UPSRTC, no such claim could have been made. By making an amendment in the Writ Petition, this order has also been challenged. 5. Learned counsel for petitioner submitted that joining letter was submitted by petitioner on 23.9.1994 and photocopy thereof is Annexure-6 to the Writ Petition. He further submitted that petitioner was declared unfit by Medical Board by letter dated 18.10.1994. Petitioner’s wife applied for appointment under Regulation 77 vide letter, copy whereof has been filed as Annexure-8 to the Writ Petition. He said that subsequent amendment in Regulation will not apply to petitioner since his matter has to be considered in the light of said Regulation as stood in 1994 when application for appointment under Regulation 77 was filed by petitioner’s wife. He said that subsequent amendment in Regulation will not apply to petitioner since his matter has to be considered in the light of said Regulation as stood in 1994 when application for appointment under Regulation 77 was filed by petitioner’s wife. He submitted that Regional Manager has illegally held that petitioner did not join after reinstatement order passed by Appellate Authority and further rejection of claim for compassionate appointment under Regulation 77 of petitioner’s wife for his son on the basis of amended Regulation is patently illegal. 6. UPSRTC has filed a counter-affidavit replying averments made in the Writ Petition as it stood before amendment. It is said therein that petitioner was terminated on 30.9.1993 but subsequently Divisional Regional Manager passed an order in appeal on 22.9.1994 reinstating petitioner with direction that he will not be given benefit of service and pay for the period he did not work. Pursuant to the order dated 22.9.1994, petitioner did not join service. Further it is said that petitioner was initially appointed on a short term vacancy on 28.8.1979 and thereafter made regular on 24.12.1985 on the post of Bus-Conductor in UPSRTC. With regard to alleged letter submitted by petitioner’s wife, it is said that no such letter is on record of respondents and more so, there is no provision for giving appointment to dependents of an employee who has suffered disability. It has been specifically said in para-20 and 22 of counter-affidavit that petitioner never joined his duties after his reinstatement. 7. Rejoinder-affidavit has been filed annexing a copy of Regional Manager, UPSRTC, Varanasi’s letter dated 10.10.1994 addressed to Secretary, Regional Medical Board, Varanasi wherein it is said that petitioner came to join on 1.10.1994 when it was noticed that he was not able to work or to perform his duties as Bus-Conductor, therefore, Medical Board was required to examine his fitness and submit report. 8. A supplementary-affidavit has been filed by UPSRTC sworn by Sri D.C. Lal Asthana, Assistant Regional Manager, stating that after 10.10.1994, petitioner did not submit any joining report. A copy of Circular dated 3.6.2014 has also been filed as Annexure-1 to the said affidavit stating that employees of UPSRTC, when suffered medical disability to discharge duties on the post on which they are working, they are allotted lighter duties but that provision was not applicable for Bus-Conductors and Bus Drivers as per earlier Circular dated 24.2.2012. A copy of Circular dated 3.6.2014 has also been filed as Annexure-1 to the said affidavit stating that employees of UPSRTC, when suffered medical disability to discharge duties on the post on which they are working, they are allotted lighter duties but that provision was not applicable for Bus-Conductors and Bus Drivers as per earlier Circular dated 24.2.2012. The said Circular dated 24.2.2012 was superseded by Circular dated 3.6.2014 and the new Scheme provided therein reads as under: ^^vr% mDr lanfHkZr ifji= fnukad 24-02-2012 dks vfrdzfer djrs gq, fuEuor~ uohu O;oLFkk dk izfriknu fd;k tkrk gS%& 1& mijksDrkuqlkj fpfdRldksa }kjk vLFkk;h :i ls v{ke fd, tkus ij vFkok ykbZV M;wVh fy[ks tkus ij deZpkjh dks ns; vodk'k Lohd`r djrs gq, fQVusl izek.k i= izLrqr djus ds i'pkr gh iqu% dk;Z ij fy;k tk;sA 2& ;fn dksbZ deZpkjh fcUnq 01 ij of.kZr fLFkfr;ksa ds mijkUr iqu% LFkk;h :i ls v{ke dh laLrqfr lfgr fcuk gYdk dk;Z ¼ykbZV fM~;wVh½ dk izek.k i= ysdj mifLFkr gksrk gS vFkok ,slk deZpkjh tks izFke ckj gh fpfdRlh; vk/kkj ij LFkk;h v{kerk dk izek.k i= ykrs gSa] ,sls deZpkjh ds izdj.kksa dks fMiksa ds lgk;d {ks=h; izcU/kd ml {ks= ds {ks=h; izcU/kd dks vxzlkfjr djsaA 3& {ks=h; izcU/kd vUrxZr fMiks Lrj ls vxzlkfjr fd, x, izdj.kksa dks fuèkkZfjr izk:i&d ¼izfr layXu½ esa deZpkjh dk QksVks izekf.kr djrs gq, izdj.k dks LokLF; ijh{k.k gsrq eq[; fpfdRlkf/kdkjh dks lanfHkZr djrs gq, fuEu fcUnqvksa ij lwpuk izkIr djsaxs%& ¼v½ lEcfU/kr dkfeZd dh tks chekjh gS og LFkk;h gS vFkok vLFkk;hA ¼c½ ml chekjh dk bykt lEHko gS vFkok ughaA ¼l½ xzflr chekjh ds dkj.k og vius in ds vuq:i dk;Z djus gsrq LFkk;h :i ls v{ke gS vFkok vLFkk;hA 4& eq[; fpfdRlkf/kdkjh }kjk fpfdRlh; ijh{k.kksijkUr ;fn fdlh deZpkjh dks LFkk;h v{ke ik;k tkrk gS rks ml dkfeZd ds izdj.k dks ¼layXu izk:i&[k½ ds vuqdze esa {ks=h; izcU/kd LokLF; ijhf{kr fjiksVZ ,oa fpfdRlh; vfHkys[kksa lfgr lEcfU/kr deZpkjh dks eq[;ky; esa bl gsrq xfBr vf/kdkjh lfefr ds le{k mifLFkr gksus gsrq funsZf'kr djsaxsA 5& eq[;ky; lfefr ijh{k.k djus ds i'pkr~ mu izdj.kksa dks vius Lrj ls jkT; fpfdRlk ifj"kn lanfHkZr djsxhA ifj"kn dh fjiksVZ izkIr gksus ij lfefr izèkku izcU/kd ¼dkfeZd½ dks miyC/k djk;sxhA 6& lfefr dh fjiksVZ ds vk/kkj ij izèkku izcU/kd ¼dkfeZd½ }kjk v{kerk dk vuqeksnu izcU/k funs'kd ls izkIr fd;k tk,xkA 7& ,sls dkfeZd ftUgsa ifji= la[;k&1030 lhbZ,uVh@12&156@88&89 Hkkx 2 fnukad 24-2-2012 esa fufgr O;oLFkk ds vUrxZr izcU/k funs'kd egksn; ds vuqeksnuksijkUr v{ke ?kksf"kr fd;k tk pqdk gS] mUgssa mDr izfdz;k ls eqDr j[kk tk,xkA ijUrq ,sls dkfeZd ftUgsa 01 o"kZ ds fy, vLFkk;h v{ke vFkok v{ke ?kksf"kr fd;k x;k gS] mudh fu/kkZfjr vof/k O;rhr gksus ds i'pkr muds izdj.kksa dks mijksDr O;oLFkk ds vUrxZr LokLF; ijh{k.k djk, tkus dh dk;Zokgh lqfuf'pr djk;h tk,xhA 8&mDrkuqlkj v{ke ?kksf"kr fd, tkus okys dkfeZdksa ls ifji= la[;k&3472 lhbZ,uVh@ 13&156 bykgkckn@13&11] fnukad 12 vxLr] 2013 esa fufgr O;oLFkk@fn'kk&funsZ'kkuqlkj oSdfYid dk;Z {ks=h; Lrj ij ysuk lqfuf'pr djsaxsA^^ “Hence, the following new provision is being hereby introduced while superseding the referred circular dated 24.2.2012: 1- As mentioned above, on being declared temporarily incapacitated or recommended for light duty by doctors, an employee shall be granted leave admissible to him and permitted to resume duty only after producing fitness certificate. 2- If any employee, after the conditions mentioned in 01, appears again with the finding as to being permanently incapacitated without certificate for light duty, or any employee brings certificate for permanent incapacitation on medical grounds on the very first time; their matters shall be forwarded to Regional Manager of that area by the Assistant Regional Manager of the Depot. 3- The Regional Manager, certifying the photographs of the employees on the prescribed ‘Form-A’, shall refer the matters forwarded from the end of depot to the Chief Medical Officer for medical examination and shall obtain information on the following points - (A) Whether the illness of the concerned personnel is permanent or temporary? (B) Whether the treatment of the aforesaid illness is possible or not? (C) Whether he, owing to illness, is permanently or temporarily incapacitated to do the work as per his post? 4- If any employee is found permanently incapacitated by the Chief Medical Officer after medical examination, then the Regional Manager, in reference to the matter of the personnel as in (enclosed Form-B), shall direct the employee to appear before the officer’s committee constituted for the purpose at the headquarters, with medical examination report and medical documents. 5- The Headquarters Committee shall refer the matter to State Medical Council at its level after examination. On getting report from the Council, the Committee shall make it available to Chief Manager (Personnel). 6- On the basis of the report of the Committee, approval as to incapacitation shall be obtained from the Managing Director by the Chief Manager (Personnel). 7- Those personnel who have been declared incapacitated consequent upon Managing Director’s approval under the provision contained in the circular No. 1030 CENT/12-156/88-89 Part II dated 24.2.2012 shall be kept beyond purview of the said process; but those personnel who have been declared temporarily incapacitated or incapacitated for one (01) year shall, after completion of the prescribed period, be ensured to undergo medical examination under the aforesaid provision. 8- Alternative work shall be ensured to be taken from those personnel who are declared incapacitated as above under the provisions/guide-lines given in the circular No. 3472CENT/13-156 Allahabad/13-11, dated 12nd August, 2013.” (English Translation by Court) 9. Learned counsel for UPSRTC submitted that petitioner came on 1.10.1994 for joining but he was not found fit, therefore, was referred for examination of medical fitness to Medical Board. Learned counsel for UPSRTC submitted that petitioner came on 1.10.1994 for joining but he was not found fit, therefore, was referred for examination of medical fitness to Medical Board. Medical Board submitted report that petitioner is not medically fit to discharge duties of Bus-Conductor and, thereafter, petitioner never attended Office of UPSRTC requesting to assign any lighter duty or for any other alternative arrangement. Letters of petitioner claimed to have been submitted by his wife for employment of his son are undated and there is nothing on record to show that any such letter was actually submitted in the Office of UPSRTC till Regulation 77 was substituted and amended in 1997 and any claim thereafter by petitioner is not permissible in view of change in Regulations. 10. The first question which this Court has to examine is “whether petitioner ever submitted any joining report or not.” 11. Letter dated 10.10.1994 filed alongwith rejoinder-affidavit shows that pursuant to appellate order dated 22.9.1994, petitioner visited Office of Regional Manager on 1.10.1994 and was recommended for examination of his medical fitness. Petitioner has stated in the Writ Petition that he submitted joining report on 23.9.1994 (Annexure-6 to Writ Petition). The aforesaid document does not contain any endorsement or acknowledgment by any official of UPSRTC. Copy of appellate order dated 22.9.1994 has not been placed on record but during the course of hearing, learned counsel placed the said letter for perusal of this Court and I find that Appellate Authority issued Office Order on 22.9.1994 and copy thereof was endorsed to General Manager (Personnel), UPSRTC, Lucknow; Regional Manager, UPSRTC, Varanasi and concerned employee through Regional Manager, Varanasi. When the aforesaid appellate order was received by petitioner is not stated anywhere in the writ petition. Since appellate order was to be communicated to petitioner through Regional Manager, I do not find any substance in the contention of petitioner that he submitted joining report on 23.9.1994 or he could have submitted such report on 23.9.1994, since there is nothing on record to show that appellate order was even communicated to petitioner by that date. Petitioner’s own document filed as Annexure RA-1 to rejoinder-affidavit shows that petitioner visited Office of Regional Manager on 1.10.1994 when he was found not fit to perform his duties and, therefore, recommended for medical examination by Medical Board vide Regional Manager’s letter dated 10.10.1994. Petitioner’s own document filed as Annexure RA-1 to rejoinder-affidavit shows that petitioner visited Office of Regional Manager on 1.10.1994 when he was found not fit to perform his duties and, therefore, recommended for medical examination by Medical Board vide Regional Manager’s letter dated 10.10.1994. After medical examination by Board, there is nothing on record to show that petitioner ever submitted his joining in UPSRTC. In fact, I am not informed of any provision under which an employee, if declared unfit to discharge his duties, can be allowed to join duties. In these circumstances, I find it difficult to hold that petitioner, at any point of time, submitted joining report before competent authority of UPSRTC after order dated 22.9.1994 passed by Appellate Authority whereby he was reinstated to the post of Bus-Conductor. 12. This fact, however, by itself, will not result in rendering petitioner not an employee of UPSRTC for the reason that once removal order is set aside by Appellate Authority and petitioner was reinstated, the legal consequence is that petitioner continued to be an employee of UPSRTC, and, factum that he joined and performed his duties or not may be relevant only for the purpose of payment of salary etc., but factum that he continued to be an employee of UPSRTC as a result of setting aside of removal order by Appellate Authority cannot be doubted. Therefore, petitioner was entitled to claim benefit under Regulation 77, as it was in 1994. 13. Now the second question is “whether petitioner could have claimed appointment of any legal representative or dependent after his declaration as medically unfit by submitting an application under Regulation 77”. 14. Regulation 77, as it was in 1994, read as under: ^^77- tc lsok dky esa jgrs gq, fdlh deZpkjh dh e`R;q gks tk; ;k og LFkkbZ :i ls v{ke gks tk;s rks mlds iq= ;k mlds ifjokj ds fdlh vU; lnL; dks] tks ml ij vkfJr gks lsok esa fdlh in ij ftlds fy, og fofgr vgZrk j[krk gks fu;qDr fd;k tk ldrk gSA bl fofu;ekoyh esa nh xbZ HkrhZ dh izfdz;k mlds ekeys essa ugha gksxhA ;fn vko';d gks rks vk;q lhek vkSj 'kSf{kd vgZrk dks Hkh f'kfFky fd;k tk ldrk gSA^^ “77. When any employee dies or becomes permanently incapacitated while being in service, he son or any other member of his family, who is dependant on him can be appointed on the post, for which he holds prescribed qualification. The recruitment process given in the regulation shall not be applicable in his case. If necessary, age limit or educational qualification can also be relaxed.” (English Translation by Court) 15. As per respondents, aforesaid Regulation has been amended by Notification dated 30.9.1997 and substituted amended Regulation now reads as under: ^^tc lsok dky esa jgrs gq, fdlh deZpkjh dh e`R;q gks tk; rks mlds iq= ;k muds ifjokj ds fdlh vU; lnL; dks] tks ml ij vkfJr gks lsok esa fdlh in ij le; le; ij ;Fkk la'kksf/kr m0iz0 lsokdky essa e`rd lsodksa ds vkfJrksa dh HkrhZ fu;ekoyh 1974 ds mica/kksa ds vuqlkj fu;qDr fd;k tk ldrk gSA^^ “When any employee dies in harness, his son or any other person of his family, who are dependant on him, may be appointed on the post as per the provisions of the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974, amended time to time.” (English Translation by Court) 16. It cannot be doubted that under amended Regulation, there is no provision for providing appointment to dependent of a medically unfit employee. Petitioner was declared medically unfit by Medical Board’s letter dated 18.10.1994. Now the question whether he or any of his dependent actually claimed appointment under Regulation 77 before its amendment is a matter which has to be examined by this Court. 17. Petitioner claimed that his wife, Smt. Devmati Chaubey, submitted an application before Additional Managing Director, UPSRTC requesting to provide appointment since petitioner had become medically disabled and unfit to perform his duties. Photocopy of said letter is Annexure-8 but neither I find any date to show as to when it was submitted nor there is any acknowledgment to show that it was actually received by addressee or in his office at any point of time. There is nothing on record to show that the said letter was sent by registered post or in any other manner. In para-22 of writ petition also, petitioner has stated that his wife and he himself made representation claiming appointment of the dependent son of disabled employee under Regulation 77. There is nothing on record to show that the said letter was sent by registered post or in any other manner. In para-22 of writ petition also, petitioner has stated that his wife and he himself made representation claiming appointment of the dependent son of disabled employee under Regulation 77. Here also Court does not find any date mentioned to demonstrate that before amendment of Regulation 77, any such claim was made by petitioner. Even in the rejoinder-affidavit, nothing has been placed on record to demonstrate that as a matter of fact, any such application was submitted for claiming appointment by dependents of petitioner before Regulation 77 was amended. 18. Learned counsel for petitioner submitted that even before his termination on 30.9.1993, petitioner had submitted an application to General Manager, UPSRTC, Varanasi requesting to provide appointment to petitioner’s son or wife since petitioner had become unfit to perform duties and that application was liable to be considered by UPSRTC. Copy of the said letter has been filed as Annexure-2. Factual averments in respect to Annexure-2 have been made in para-11 of Writ Petition. In the counter-affidavit, UPSRTC in para 12 has said that there is no provision to appoint any dependent of an employee on compassionate ground if an employee has become disabled. Further, it has denied availability of such letter of petitioner with the respondents, but thereafter in reply to para 15 of Writ Petition wherein petitioner has said that he has already made a request for giving appointment to his son under Regulation 77, UPSRTC has replied it in para-15 stating that case of petitioner was considered and since strength of Class-IV Employee was more than the sanctioned number, hence, petitioner’s son could not be given appointment. Now taking into account the stand taken in Para-12 and Para-15 while giving reply to Paras-11 and 15 of Writ Petition, I find an apparent contradiction in the stand taken by UPSRTC. On the one hand, they have denied petitioner’s claim for appointment of his son under Regulation 77 on the ground that neither any such letter was on record of respondents nor there existed any provision for such appointment, but simultaneously in Para-15 it is said that matter was considered and since Class-IV employees were more than the sanctioned number, hence petitioner’s son could not be given appointment. Averments contained in Para-15 make it clear that UPSRTC never took any appropriate decision in the matter of petitioner’s request for giving appointment to his son though petitioner himself claimed such appointment as long back in 1992 that he had suffered permanent disability and, therefore, compassionate appointment be provided to his son or wife in the light of Regulation 77 as it stood then. In my view, aforesaid provision conferred a vested right upon petitioner to get his claim considered for compassionate appointment to one of the dependents, i.e., son or wife since he suffered permanent disability which was subsequently found correct by Medical Board’s report dated 18.10.1994. Respondents have denied this right of petitioner on inconsistent and varying grounds, showing that the claim of petitioner under Regulation 77, as it stood in 1992 and 1994, has not been examined properly and in accordance with law. 19. In view of above, I allow this writ petition partly and direct respondents to consider the matter of compassionate appointment of petitioner’s son or wife, as the case may be, according to their qualification for appropriate appointment since petitioner has suffered permanent disability to perform his duties of Bus-Conductor in the light of Regulation 77 as it stood when right for such consideration came to be vested in petitioner in 1992 and 1994, as discussed above, and pass an appropriate, reasoned order expeditiously, and, in any case, within two months from the date of production of a certified copy of this order. 20. Petitioner shall also be entitled to cost which I quantify to Rs. 2,000/-.