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2019 DIGILAW 1369 (ALL)

Shazer Malik v. State of U. P.

2019-05-17

PRAKASH PADIA

body2019
ORDER : PRAKASH PADIA, J. 1. Heard Sri Fuzail Ahmad Ansari, learned counsel for the petitioner and Ms. Praveen Shukla, learned Standing Counsel for the respondents. 2. The petitioner has preferred the present writ petition with the prayer to issue a Mandamus directing the respondent No. 2/District Inspector of Schools Moradabad to pass orders for appointment of the petitioner on compassionate ground by deciding his application dated 9.5.2005 expeditiously. 3. The facts in brief as contained in the writ petition are that there is an educational institution namely Ansar Inter College Moradabad. The institution in question is a recognized and aided intermediate college by the State Government. All its teachers and employees are being paid their salary through State Exchequer. The institution is a duly recognized minority institution. 4. The father of the petitioner late Malik Jalaluddin was appointed as Lecturer in Urdu in the institution in question. He died while working on 13.7.2003 leaving behind his widow namely Smt. Rana Malik, two unmarried daughters and the petitioner. After sudden demise of the sole bread earner of the family, the mother of the petitioner submitted an application on 9.5.2005 before the District Inspector of Schools through Principal of the College requesting therein that the petitioner may be provided appointment under dying-in-harness Rules. The Principal, of the College forwarded the papers regarding compassionate appointment of the petitioner before respondent No. 2/District Inspector of Schools on 12.5.2005 stating therein that as per regulations 101 to 107 contained in Chapter III of the U.P. Intermediate Education Act, 1921, the power to provide appointment under dying-in-harness Rules is vested in the District Inspector of Schools. 5. It is contended that in spite of the same, no action whatsoever has been taken by the respondent No. 2 In this regard various representations were made by the petitioner from time-to-time for consideration of his case for appointment on compassionate ground. The petitioner also brought on record a letter dated 3.10.2009 written by him to the District Inspector of Schools Moradabad with a request to appoint the petitioner on compassionate ground under the dying-in-harness Rules according to his qualifications. 6. In response to the same, a letter dated 5.10.2009 was written by the Principal of the College to the petitioner. The petitioner also brought on record a letter dated 3.10.2009 written by him to the District Inspector of Schools Moradabad with a request to appoint the petitioner on compassionate ground under the dying-in-harness Rules according to his qualifications. 6. In response to the same, a letter dated 5.10.2009 was written by the Principal of the College to the petitioner. By the aforesaid letter, an information was sought for that whether at any point of time, the petitioner was offered any appointment by the District Inspector of Schools Moradabad or not. 7. In response to the same, a reply was' given by the petitioner on 7.10.2009 stating therein that no letter was received by the petitioner from the Office of the District Inspector of Schools Moradabad for his appointment. Thereafter another letter was written by the Principle of the College to the petitioner on 15.10.2009 again asking certain more informations and stating therein that a clear response was not given by the petitioner in response to the letter dated 5.10.2005. 8. In the reply dated 16.10.2009 it is stated by the petitioner for the first time that date of birth of the petitioner is 10.7.1988 and he became entitle for his appointment on 10.7.2006. Along with the said reply, he submitted High School certificate. It is further contended by the counsel for the petitioner that since no response was given either by the Principal or by the respondent No. 2, various other representations were submitted by the petitioner but since no reply was given, the petitioner preferred the present writ petition. 9. In the counter-affidavit filed by the learned Standing Counsel, it is stated that vide letter dated 18.11.2005 written by the District Inspector of Schools, Moradabad, the petitioner was appointed on a Class IV post, but in spite of the aforesaid letter, the petitioner has not joined the post in question. It is further contended that the aforesaid facts were concealed by the petitioner while filing the present writ petition. From the perusal of the said letter, it appears that respondent No. 2 wrote a letter, to the Manager/Principal of the College directing them to appoint the petitioner on a class IV post for a probation of one year. 10. Rejoinder affidavit to the said counter affidavit was filed by the petitioner stating therein that letter dated 18.11.2005 was never received by the petitioner. 10. Rejoinder affidavit to the said counter affidavit was filed by the petitioner stating therein that letter dated 18.11.2005 was never received by the petitioner. In this background of the matter, when the matter was taken up. by this Court on 11.12.2018, respondent No. 2 was directed to file his personal affidavit. In response to the same, personal affidavit was filed by the respondent No. 2 stating therein that vide letter dated 18.11.2005 the petitioner was appointed on Class IV post. The aforesaid letter was addressed to the Principal of the College copy of which was also endorsed to the petitioner. 11. It is further contended that the aforesaid appointment letter was sent to the petitioner through ordinary post on 24.11.2005. It is further contended that the principal being the appointing Authority of Class IV employees in the college vide its letter dated 12.7.2006 issued, appointment letter to the petitioner and the same. was sent to him at his permanent address/residence (which was mentioned in his application) through office bearer. The office bearer informs in writing that the petitioner has refused to receive the appointment letter. 12. It is further stated in the counter affidavit of the respondent No. 2 that another letter was written by the District Inspector of Schools, Moradabad to the Principal of the College on 11.11.2009 asking him the source and mode of information by which the petitioner was informed regarding his appointment. In response to the same, the Principal of the College vide its letter dated 4.12.2009 stating therein that if the petitioner wants to join as Class IV post in the College, he has no objection to get him joined in the college. It is further stated that the aforesaid letter was duly endorsed by the petitioner and he also received the same. 13. A reply was given by the petitioner to the aforesaid affidavit of the respondent No. 2 stating therein that the petitioner was never served the letter of appointment which was sent through ordinary posts on 24.11.2005. It is further contended that the mode of sending of the alleged appointment letter through ordinary post is nowhere prescribed in the Act or the Rules. It is further contended that the mode of sending of the alleged appointment letter through ordinary post is nowhere prescribed in the Act or the Rules. It is further contended that the letter dated 4.12.2009 alleged to be issued by the Principal of the College has never been served upon the petitioner at any point of time and the alleged signature of the petitioner on the letter dated 4.12.2009 has been denied by the petitioner. 14. Heard learned counsel for the parties. 15. From perusal of the records it appears that the correct mode for sending the letter of appointment was not followed by the Principal of the College. It further appears that in spite of the letter dated 18.11.2005 written by the District Inspector of Schools Moradabad to the Principal of the College no letter of appointment was sent to the petitioner by the Principal of the College at any point of time. It further appears from the affidavit of compliance filed by respondent No. 2 that the letter dated 4.12.2009 was written by the Principal to the District Inspector of Schools stating therein that in case, the petitioner is ready for his appointment on Class IV post, the Principal has no objection. Copy of the said letter was marked to the petitioner. This fact is in dispute whether the said letter was received by the petitioner or not. 16. Learned counsel for the petitioner relied upon a full Bench decision of this Court in the case of Shiv Kumar Dubey and others v. State of U.P. and others reported in 2015 (3) ALJ 420 wherein certain principles/guidelines for appointment on compassionate ground pursuant to the dying-m-harness Rules have been laid down. Learned counsel for the petitioner relied upon principles (v), (vi) and (vii) of the paragraph 28 of the aforesaid judgment. The complete paragraph 28 of the judgment is reproduced below:- "28. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules: (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 complete paragraph 28 of the judgment is reproduced below:- "28. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules: (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. 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; (iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment; (v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out; (vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner; (vii) The burden lies on the applicant, where there is a delay in making an application within, the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the Government; (viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family." 17. Learned counsel for the petitioner also relied upon a judgment of this Court in the case of Prakash Agarwal v. Registrar General Allahabad High Court and others reported in 2014 (4) ALJ 171. In this case, after referring the various judgments decided by this Court as well as by the Supreme Court, it was held that applicant has no right to choose the particular post but appointing authority should offer suitable employment and these two things should not be mixed or confused. Appointing authority has been given discretion to judge the suitability of the applicant but this discretion is not to be exercised on caprice or whims but in a judicious manner and must be informed by reasons. The relevant paragraph of the aforesaid judgment is reproduced below:-- 42. It is clarified that applicant has no right to choose the particular post but appointing authority should offer suitable employment and therefore, these two things should not be mixed or confused. Appointing authority has been given discretion to judge the suitability. This discretion is not to be exercised on caprice or whims but in a judicious manner and must be informed of reasons. Appointing authority should give reasons for not offering the appointment, claimed by the applicant. It is once again clarified that applicant has no right to choose the post and appointing authority is not bound to offer the post claimed by applicant but refusal must accompany the reasons for finding him non suitable. 18. Appointing authority should give reasons for not offering the appointment, claimed by the applicant. It is once again clarified that applicant has no right to choose the post and appointing authority is not bound to offer the post claimed by applicant but refusal must accompany the reasons for finding him non suitable. 18. Learned counsel for the petitioner also relied upon a judgment of Division Bench of this Court in the case of Union of India and' others v. Surya Prakash Pandey and others reported in 2018 (4) ADJ 473 . The Division Bench has held that the compassionate appointment is exception of normal mode of recruitment of service. This is special kind of benefit extended by the (legislator) employer in favour of the dependents of the deceased employee who had been serving in the department with the utmost devotion and contributed in the smooth working of the department, where a person seeking appointment is in crisis after the death of the employee, the employer should act in a reasonable manner. 19. Learned counsel for the petitioner also relied upon a judgment of the Supreme Court in the case of Supriya Suresh Patil alias Sow. Supriya Pratik Kadam v. State of Maharashtra and others reported in 2018 (3) ESC 586 (SC). In the aforesaid case, the writ petition filed by the petitioner was rejected by the High Court on the ground that the family has managed to survive for ten years, therefore; there was no immediate necessity. The supreme Court while deciding the aforesaid matter pleased to hold that we are afraid that this cannot be a major reason for rejection. Whether the family pulled on begging or borrowing also should have been one consideration. The Supreme Court was pleased to hold that since the widow had already been empanelled for appointment under the Compassionate Appointment Scheme, but was declined the benefit only on account of crossing the age. The Supreme Court was pleased to hold that her daughter should be considered for compassionate appointment. The petitioner will not get any benefit from the aforesaid judgment since the aforesaid judgment was passed by the Supreme Court while exercising its power conferred under Article 142 of the Constitution of India and it was stated in paragraph four of the judgment that this judgment will not be treated as a precedent. 20. The petitioner will not get any benefit from the aforesaid judgment since the aforesaid judgment was passed by the Supreme Court while exercising its power conferred under Article 142 of the Constitution of India and it was stated in paragraph four of the judgment that this judgment will not be treated as a precedent. 20. Counsel for the petitioner also relied upon a judgment of this Court in the case of Madhay Prasad Shakya v. State of U.P. reported in 2018 (11) ADJ 198 . In the aforesaid case, at the time of death of the deceased employee, the petitioner was a minor and immediately after attaining the age of majority, he submitted an application for his appointment on compassionate ground. The claim set up by the petitioner in that case was rejected on the ground that the application was not submitted within a period of five years. The Court after taking into consideration the Proviso to Rule 5 of the U.P. Recruitment of Dependents of Government Servants Dying-in-harness Rules 1974 held that the claim set up by the petitioner was rejected without taking into consideration all aspects of the matter. The application submitted by the petitioner was not decided as per procedure prescribed under Rule 5 of the Rules 1974. After taking into consideration the law laid down by the Full Bench in the case of Shiv Kumar Dubey ( AIR 2015 All 47 ) (supra), the matter was remitted back before the authorities with a direction to pass afresh order in accordance with law. It was further held that ordinarily an application for compassionate appointment must be made within a period of five years from the date of death of the deceased employee. However, the power conferred by the first proviso to Rule 5 provides a discretion to relax the aforesaid period of five years when it is found that the case is covered with undue hardship. 21. The father of the petitioner died in the year 2003 and the claim was set up by the petitioner for his appointment in the year 2005. The appointment letter was issued by the District Inspector of Schools in the year 2005 itself. The said appointment letter was never received by the petitioner at any point of time. 21. The father of the petitioner died in the year 2003 and the claim was set up by the petitioner for his appointment in the year 2005. The appointment letter was issued by the District Inspector of Schools in the year 2005 itself. The said appointment letter was never received by the petitioner at any point of time. On the correspondence made by the District Inspector of Schools vide letter dated 4.12.2009, the Principal informed the District Inspector of Schools that in case, the petitioner is ready for his appointment on a Class IV post, the Principal has no objection. According to the petitioner, the aforesaid letter was also not received by the him at any point of time. Thereafter various representations were submitted by the petitioner to the Authorities and since no action was taken the petitioner has preferred the present writ petition in the year 2010. The matter was pending consideration before this Court for more than nine years. Now the question is for consideration before this Court is that whether after expiry of more than 16, years any appointment on compassionate ground could be offered to the petitioner or not. 22. In the present case, from perusal of the records it is clear that the petitioner was raising his voice since the year 2005 for his appointment on compassionate ground. The appointment was also offered to him by the District. Inspector of Schools but the said letter was never provided to the petitioner. 23. Taking into consideration all the aforesaid aspects of the matter specially in view of the letter written by the District Inspector of Schools on 14.12.2009 although considerable time has already been lapsed but for such a delay there is no fault on the part of the petitioner. 24. In the special facts and circumstances of the case, although a considerable time, i.e., sixteen years has already been lapsed, this Court thinks it proper to direct the authorities to consider the case of the petitioner for his appointment on compassionate ground by relaxing the period of five years specially in view of the law laid down by the Full Bench of this Court in the case of Shiv Kumar Dubey (supra). The aforesaid exercise be completed within a period of two months from the date, of presentation of certified copy of this order. 25. With the aforesaid observations, the writ petition is disposed of. The aforesaid exercise be completed within a period of two months from the date, of presentation of certified copy of this order. 25. With the aforesaid observations, the writ petition is disposed of. No order as to cost.