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2021 DIGILAW 1497 (ALL)

Akhilesh Pratap v. Registrar General High Court

2021-12-06

PRAKASH PADIA

body2021
JUDGMENT : 1. Today when the matter is taken up, learned counsel for the respondents placed instruction in the matter, the same is taken on record. 2. Heard learned counsel for the petitioner and Sri Chandan Sharma, learned counsel for the respondents. 3. The petitioner has preferred the present writ petition with the prayer to issue a writ in the nature of certiorari to quash the order dated 21.04.2018 passed by the respondent No.2 namely Registrar (J) (S&A/ Establishment) High Court, Allahabad and order dated 21.08.2019 passed by the respondent No.3 namely Assistant Registrar, Accounts-D, High Court Allahabad. A further prayer has been made to issue a writ of mandamus to consider the claim of the petitioner for compassionate appointment. 4. Facts in brief as contained in the writ petition that the father of the petitioner was initially appointed on 15.03.1990 and was posted as Review Officer in the High Court at Allahabad. While working on the aforesaid post he died on 21.08.2016. Father of the petitioner left behind his dependants as old parents, widow, two unmarried sons and one unmarried daughter. The petitioner claims to be qualified and is holding educational qualification of B.A. & Diploma Holder in Computer from NIELIT. After the death, the mother of the petitioner submitted an application on 22.09.2017 before the respondent No.1 by which a request has been made to provide compassionate appointment in favour of the dependant. The respondent No.2 by its order dated 21.04.2018 has rejected the claim set up by the petitioner on the ground that the spouse of the deceased employee is already in employment. The order passed by the respondent No.2 dated 21.04.2018 is reproduced below:- “With reference to his application dated 22.09.2017 and other supplementary applications regarding appointment in this Hon’ble High Court, on the post of Routine Grade Clerk on compassionate ground under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules 1974 (as amended upto date), Sri Akhilesh Pratap, Son of Late Satyendra Pratap, Ex-Review Officer, High Court, Allahabad, is hereby informed that Hon’ble the Court has declined it since the spouse of the deceased employee is already employed in government service as such the applicant’s claim is not covered under ‘The Uttar Pradesh Recruitment of Dependants of Government Servants Dying In Harness Rules.’ 5. After the aforesaid order was passed another representation was made by the mother of the petitioner before the respondent No.1 on 14.02.2019, the same was also rejected by the respondent No.3 vide order dated 21.08.2019. The aforesaid order is reproduced below:- “With reference to her representation dated 14.02.2019 seeking appointment of her son Sri Akhilesh Pratap, Son of Late Satyendra Pratap, Ex-Review Officer, High Court, Allahabad,. In this Hon’ble High Court, on compassionate ground under U.P. Recruitment of Dependants of Government Servants Dying In Harness Rules, 1974 (as amended upto date), Smt. Lakshmi Devi. Wife of Late Satyendra Pratap, Ex Review Officer (Emp. No.3342), High Court, Allahabad, is hereby informed that Learned Registrar General vide his order dated 19.08.2019 has rejected it in light of resolution dated 10.04.2018 of Hon’ble Recruitment Committee.” 6. Subsequently, the petitioner himself made a representation dated 06.02.2020 through proper channel addressed to Hon’ble the Chief Justice of this court for providing compassionate appointment. 7. It is argued that on the same set of facts, certain persons were given appointment on compassionate ground. It is argued that the order passed by the respondents which are under-challenge in the present writ petition are absolutely illegal and are liable to be set aside. 8. On the other hand, it is argued by learned counsel appearing for the respondents that the claim set up by the petitioner was rightly rejected by the respondent No.2 while passing the order dated 24.02.2018. Counsel for the respondent relied upon Rule 5(1) of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. 8. On the other hand, it is argued by learned counsel appearing for the respondents that the claim set up by the petitioner was rightly rejected by the respondent No.2 while passing the order dated 24.02.2018. Counsel for the respondent relied upon Rule 5(1) of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. The aforesaid rule is quoted below:- Rule 5(1) -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.” 9. As per aforementioned Rules, the petitioner does not fulfil the condition laid down in Sub Rule (1) of Rules 5 of the Rules 1974 as the spouse of the deceased employee was already under employment as Government Servant. It is stated in the instructions that the matter was placed before the Committee in its meeting dated 10.04.2018 wherein the request was “declined” by the Committee after due deliberation. Consequently after the aforesaid resolution, the order in question has been issued by the respondent No.2. 10. Heard learned counsel for the parties and perused the record. 11. It is stated in the instructions that the matter was placed before the Committee in its meeting dated 10.04.2018 wherein the request was “declined” by the Committee after due deliberation. Consequently after the aforesaid resolution, the order in question has been issued by the respondent No.2. 10. Heard learned counsel for the parties and perused the record. 11. From perusal of the record, it is clear that the mother of the petitioner is already in employment as Government Servant. It is clearly provided under Rule 5(1) of the Rules 1974 that member of the family of the deceased could only be given appointment in case a government servant dies during service 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. 12. The first requirement under Rule 5 of Rules, 1974 is that the spouse of the deceased should not be already employed by the Central or State Governments or by a Corporation owned or controlled by them. 13. The Hon'ble the Apex Court In the case of Sushma Gosain & Ors. Vs. Union of India & Ors., reported in (1989) 4 SCC, 468, observed as under:- "The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (Smt.) v. Union of India and Ors., reported in (1991) Supp (2) SCC, 689 and Union of India and Ors. v. Bhagwan Singh, reported in (1995) 6 SCC, 476. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors, (1998) 5 SCC 192 , it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. v. Bhagwan Singh, reported in (1995) 6 SCC, 476. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors, (1998) 5 SCC 192 , it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for grant of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision." 14. In Umesh Kumar Nagpal Vs. State of Haryana & Ors., reported in (1994) 4 SCC, 138, the Supreme Court explained the basic purpose of providing compassionate appointment to the dependent of a deceased employee who has died in harness: "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. ... For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." 15. In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors., reported in (1998) 5 SCC, 192, the Supreme Court held that compassionate appointment is an exception to the general provision and, being an exception, it should not interfere unduly with the rights of other persons. The Supreme Court held thus: "The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment of seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee." 16. The Supreme Court in the case of General Manager (D&PB) & Ors. Vs. Kunti Tiwary & Anr., reported in (2004) 7 SCC 271 held that under the Scheme which had been adopted by the Indian Banks Association, the terminal benefits received by the family of the deceased employee had to be considered together with the income of the family, employment of other members, the size of the family and liabilities, if any. The Supreme Court in that case held that the family of the deceased employee had not been left in penury or without any means of livelihood and its income was not such as to lead to the conclusion that the family was living hand to mouth. 17. The same view was followed in Punjab National Bank & Ors. Vs. Ashwini Kumar Taneja, reported in 2004 AIR SCW, 4602 18. In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr., reported in AIR 2005 SC, 106, the principle was formulated as follows: "It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises." 19. In Commissioner of Public Instructions & Ors. Vs. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises." 19. In Commissioner of Public Instructions & Ors. Vs. K.R. Vishwanath, reported in (2005) 7 SCC, 206, the following principles were laid down by the Supreme Court: "...the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. ...High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments." 20. Insofar as the arguments made by learned counsel for the petitioner is that the petitioner is entitled for the similar benefit as has been provided to the several other persons it is clear that if any wrong order was passed earlier, petitioners can't seek the benefit of the same. There is no concept of negative equality under Article 14 of the Constitution of India. The Hon'ble Supreme Court in the case of State of Bihar v Kameshwar Prasad Singh AIR 2000 SC 2306 held that:- "The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits." 21. In this regard the Hon'ble Supreme Court in the case of Gursharan Singh & Ors. v. NDMC & Ors. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits." 21. In this regard the Hon'ble Supreme Court in the case of Gursharan Singh & Ors. v. NDMC & Ors. 1996 (2) SCC page 459 held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: "Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination." 22. Again in the case of Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain & Ors. 1997 (1) SCC page 35 the Hon'ble Supreme Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: "Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents." 23. The similar view was again taken by the Hon'ble Supreme Court in the case of State of Haryana & Ors v. Ram Kumar Mann 1997 (3) SCC page 321 wherein it was observed that: "The doctrine of discrimination is founded upon existence of an enforceable right. The similar view was again taken by the Hon'ble Supreme Court in the case of State of Haryana & Ors v. Ram Kumar Mann 1997 (3) SCC page 321 wherein it was observed that: "The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right." 24. After the death of Sri Satyendra Pratap, the petitioner submitted an application for considering his case for compassionate appointment, rejected by order dated 21.04.2018 passed by respondent No.2 & 21.08.2019 passed by respondent No. 3 on the ground that his mother is already working in a State Government establishment. 25. In the facts and circumstances of the case and taking into consideration of all the aspects of the matter, it is not disputed that the mother of the petitioner is already in employment and is working as Government Servant. 26. In this view of the matter, this Court is of the opinion that no relief could be granted. The writ petition lacks merits and the same is liable to be dismissed and is hereby dismissed. 27. No Order as to costs.