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2022 DIGILAW 1998 (ALL)

Khushboo Saxena v. State Of U. P.

2022-12-19

SANGEETA CHANDRA

body2022
JUDGMENT : Sangeeta Chandra, J. 1. Heard Sri Udayan Nandan, learned counsel for the petitioner and Sri Anubhav Singh, appearing for the respondent nos. 3 to 5 and Sri Krishna Agarawal, appearing for the U.P. Power Corporation Limited. 2. This petition has been filed by the petitioner challenging the order dated 6.9.2021 passed by the Managing Director, Kanpur Electricity Supply Company, Kanpur Nagar and also praying for a mandamus to be issued to the respondents not to interfere in the working of the petitioner as a Karyakari Sahayak (Executive Assistant) in KESCO, Kanpur Nagar pursuant to the impugned order. 3. It is the case of the petitioner that her mother was initially appointed in 1986 in U.P. State Electricity Board. Her services were transferred to KESCO on permanent basis by a government order 11.12.2008. She worked in KESCO for almost 10 years. She was later sent on deputation to U.P. Power Transmission Corporation Limited in 2019 and was working as Senior Officer Assistant in the Accounts Department. She died in harness on 18.05.2021. After the death of her mother, the petitioner applied for compassionate appointment as per provision of U.P. State Electricity Board Dying in Harness Rules, 1975. At the time of her application, she also submitted an affidavit on 14.6.2021. The application and the affidavit have been filed as Annexure-3 and 4 to the writ petition. After completion formalities, the petitioner was informed by a letter dated 15.6.2021 that a decision had been taken to offer appointment to the petitioner as Executive Assistant in the pay scale of Rs. 27,200-86,100/-. The petitioner was issued an appointment letter on 24.6.2021 subject to the condition that she obtained CCC qualification within one year from the date of appointment. 4. The petitioner joined and was working as Executive Assistant. She was asked to fill up verification form also on her appointment. The petitioner in her verification form clearly stated that her father was working in the U.P. Police Department with an annual income of Rs. 12,20,200/-. 4. The petitioner joined and was working as Executive Assistant. She was asked to fill up verification form also on her appointment. The petitioner in her verification form clearly stated that her father was working in the U.P. Police Department with an annual income of Rs. 12,20,200/-. After the verification form was submitted by the petitioner on 6.7.2021, she received a communication on 22.7.2021 that as per the amended provision of the U.P. State Electricity Board Dying in Harness Rules, 1975, a person is entitled for appointment on compassionate ground only if no other family member of the deceased employee is working in Central or State Government Department or any of the undertaking of the Government. The petitioner was directed to show cause and to file an affidavit within a period of three days. The father of the petitioner submitted an affidavit along with application dated 28.7.2021 that the petitioner was appointed after verification of her documents and that he is working as an Inspector (Accounts) in the Commissionerate of Police at Lucknow. However, the petitioner was asked to submit her own reply which she submitted thereafter on 12.8.2021 along with affidavit. 5. A show cause notice was issued to her on 17.8.2021 stating that as per the amendment carried out in Rule-5 of the U.P. State Electricity Board Dying in Harness Rules, 1975, in 2015 a person cannot be appointed on compassionate grounds, in case any of his family member is in service under the Central or State Government Department or any of its undertakings. Therefore, no appointment could have been offered to the petitioner. The petitioner asked for relevant documents and thereafter sent a letter to the Chief Engineer, KESCO asking for further time to submit her reply to the show cause notice. She was not supplied any documents. She filed a First Appeal also under the RTI Act. However, no time was granted by the Managing Director, KESCO and the impugned order has been passed on 6.9.2021 terminating the services of the petitioner on the ground that her appointment was made in violation of U.P. State Electricity Board Dying in Harness Rules, 1975 as amended by notification vide notification dated 25.06.2015. 6. However, no time was granted by the Managing Director, KESCO and the impugned order has been passed on 6.9.2021 terminating the services of the petitioner on the ground that her appointment was made in violation of U.P. State Electricity Board Dying in Harness Rules, 1975 as amended by notification vide notification dated 25.06.2015. 6. It has been submitted by the learned counsel for the petitioner that main ground for terminating the services of the petitioner is that as per U.P. State Electricity Board Dying in Harness Rules, 1975 (11th amendment) Rules, 2014, a family member of the deceased-employee was entitled to be appointed on compassionate ground, in case, he has not been appointed and working in the services of the Central or State Government Department or any of its undertakings. Later on, an amendment was carried out in the U.P. State Electricity Board Dying in Harness Rules, 1975, as approved in the 116th meeting of the Board of U.P. Power Corporation Limited with effect from 25.06.2015. Now, a family member of a deceased-employee can only be appointed, in case no other family member is previously working in Central or State Government or any other undertaking of the Government. The respondents have taken a ground that since the petitioner's father was working in U.P. Police, she could not have been appointed under the 2015 amendment. However, the respondents have misinterpreted the amended rules. Once the U.P. Electricity Reforms Transfer Scheme of 2000 came into effect, the services of the mother of the petitioner stood transferred to KESCO permanently in 2008. Any amendment carried out by the U.P. Power Corporation Limited in its Board meeting with regard to U.P. State Electricity Board Dying in Harness Rules, 1975, would not be applicable to employees of KESCO, Kanpur. Automatically, the employees of KESCO, Kanpur would be governed by the Rules in existence at the time of transfer. Any subsequent amendments made by U.P. State Electricity Board Dying in Harness Rules, 1975 would not be applicable to such employees. Since no separate rules or amendments have been made by KESCO, Kanpur after the Transfer Scheme was framed in 2000, the existing rules on the date of transfer would be applicable to such transferred employees. No subsequent amendments made in the Rules by the U.P. Power Corporation Limited would be applicable to them. Since no separate rules or amendments have been made by KESCO, Kanpur after the Transfer Scheme was framed in 2000, the existing rules on the date of transfer would be applicable to such transferred employees. No subsequent amendments made in the Rules by the U.P. Power Corporation Limited would be applicable to them. Clause-6(1) of the U.P. Electricity Reforms Transfer Scheme of 2000 clearly states that the existing rules shall be applicable to the transferred employees. Since no fresh rules relating to the conditions of service were framed by KESCO, Kanpur, therefore, the existing rules at the time of such transfer /absorption would be applicable. 7. It has been submitted by the learned counsel for the petitioner that since amended Rules, 2015, which were adopted in 116th Board meeting of the U.P. Power Corporation Limited, have come subsequently after the mother of the petitioner was transferred and absorbed permanently in KESCO, Kanpur and KESCO, Kanpur has not adopted such amended rules, the provision in amended rules would not be applicable in the case of the petitioner. 8. Sri Anubhav Singh, on the basis of the counter affidavit filed by the respondents states that the application form as was submitted by the petitioner on 1.6.2021, had not been properly filled up. She had concealed the fact that her father was earning more than Rs. 12,20,200/- per annum at the time she had applied for compassionate appointment indicating he and the petitioner were dependent upon her mother's salary. As per the amended Rule-5 of the Rules, 1975, if any member of family is already employed, she was not eligible to even apply for compassionate appointment. Also, in the affidavit filed by the petitioner, the petitioner had stated that she will look after her family in the same way as her mother was looking after her family before her death, and that she had not concealed anything and had stated the entire truth and in case any misappropriation or misconcealment is found later, the respondents were free to take appropriate action including termination of her services. 9. It has been argued that the petitioner having filed a false affidavit on 14.6.2021, the matter regarding the petitioner's father already being employed in U.P. Police came into light when the petitioner filed Verification Form showing her father to be employed as S.I./Inspector (Accounts) in U.P. Police, and place of residence as Reserve Police Lines, Lucknow. 9. It has been argued that the petitioner having filed a false affidavit on 14.6.2021, the matter regarding the petitioner's father already being employed in U.P. Police came into light when the petitioner filed Verification Form showing her father to be employed as S.I./Inspector (Accounts) in U.P. Police, and place of residence as Reserve Police Lines, Lucknow. After the Verification Form was filled up and deposited by the petitioner, at least three times notices were issued to the petitioner regarding concealement/misrepresentation in her Application Form and in the Affidavit filed by her. The petitioner did not file any affidavit in reply. Her father filed an affidavit and also sent an application that he is working in U.P. Police. The petitioner prayed for time and also filed an application for relevant documents to be given to her. The petitioner was given enough time and the show cause notice was eventually issued to her on 17.8.2021 and a reminder was sent on 25.8.2021. Only, thereafter, the respondents have passed the order dated 6.9.2021.W 10. With regard to arguments raised by the learned counsel or the petitioners regarding U.P. Electricity Reforms Transfer Scheme of 2000 and the transfer of service of the petitioner's mother and her absorption in KESKO, Kanpur in 2008, it has been submitted that the Rules as applicable to the mother of the petitioner regarding terms and conditions of her employment, would be the Rules of the UPSEB at the time of Transfer. However, the compassionate appointment sought by the petitioner was after the death of her mother, and the Rules existing at the time of submission of such application form would be taken into consideration for appointment on compassionate ground. It has been argued that the first and foremost thing to consider is whether petitioner was guilty of misrepresentation and concealment in her application form and in her affidavit. Since the petitioner had provided false information, her appointment was liable to be cancelled without getting into the controversy as to which Rules were applicable to her. 11. It has been argued that the first and foremost thing to consider is whether petitioner was guilty of misrepresentation and concealment in her application form and in her affidavit. Since the petitioner had provided false information, her appointment was liable to be cancelled without getting into the controversy as to which Rules were applicable to her. 11. In the rejoinder affidavit filed by the petitioner, it has been again reiterated that the amendment carried out in U.P. State Electricity Board Dying in Harness Rules, 1975 in the year 2015 was not adopted by KESCO, and since the mother of the petitioner was an employee of KESCO, the amended Dying in Harness Rules, 1975, would not be applicable to the petitioner. It has been reiterated that the petitioner had not submitted any false affidavit. She had not concealed any information and therefore, action taken by the respondents terminating her service, is liable to be set aside. 12. This Court having considered the arguments raised by the learned counsel for the petitioner and the learned counsel for the respondents, as also gone carefully through the pleadings on record and the application submitted by the petitioner for compassionate appointment. The very fact that the petitioner had submitted an application under the Dying in Harness Rules, 1975 called the mRrj Áns'k jkT; fo|qr ifj"kn lsokdky esa e`r ifj"knh; lsodks ds vkfJrksa dh HkrhZ fu;ekoyh 1975 would show that the petitioner claimed that she was dependant on her mother who died in harness and therefore, she needed compassionate appointment. In the Application Form, in the column which was relating to the details of persons dependent on the deceased-employee, the petitioner had mentioned the name of her father as Rajeev Saxena aged about 56 years, and also herself. However, under the column meant for "monthly income" and "income from other sources, if any", the petitioner has not written anything and left such column blank. The petitioner was born in 1992 and she filed the application in April, 2021. She was more than 28 years of age at the time of her application. She was well educated as she was B.Tech in (Information Technology). A deliberate concealment of the annual income of the father who was shown as dependent on the mother, (i.e, the deceased-employee) had been resorted by the petitioner. She was more than 28 years of age at the time of her application. She was well educated as she was B.Tech in (Information Technology). A deliberate concealment of the annual income of the father who was shown as dependent on the mother, (i.e, the deceased-employee) had been resorted by the petitioner. In the declaration made in the Application form, she had stated that no other family member had been given appointment under the 1975 Rules and that all the information supplied by her in her Application form was true and in case it was not found true then her selection/appointment may be cancelled. In the affidavit filed by the petitioner on 14.6.2021, the petitioner stated that she intended to take care of the family members of the deceased employee and therefore, had applied for compassionate appointment, and that she will take care of the family of the deceased-employee as her mother had done during her life time. She had also stated that all the contents of the affidavit had been filled up by her correctly and truthfully and that nothing had been concealed. 13. It was only after the petitioner was appointed, she submitted a Verification form where for the first time she disclosed that her father was working in U.P. Police and was having an annual income of Rs. 12,20,000/- and that the petitioner and her family were living in Type-III quarter in Reserve Police Lines, Lucknow and that she was 26 years of age at the time of her filling up of the verification form. Her father while submitting his affidavit in response to the letter sent by KESKO stated that he was working as Inspector (Accounts) in U.P. Police Commissionarate, Lucknow, and the time of death of his wife, Smt. Kumkum Saxena and also for the past 10 years, their daughter Khushbu Saxena was for certain reasons relating to family circumstances completely dependent upon her mother who had raised her, and was responsible for her education also. In the affidavit filed by the father of the petitioner, there is no mention of any judicial separation or any decree of competent court saying that Smt. Kumkum Saxena was living with the petitioner separately from her father Rajeev Saxena. 14. This Court has also perused the reply of the father to the show cause notice. In the affidavit filed by the father of the petitioner, there is no mention of any judicial separation or any decree of competent court saying that Smt. Kumkum Saxena was living with the petitioner separately from her father Rajeev Saxena. 14. This Court has also perused the reply of the father to the show cause notice. The reply submitted by the petitioner to the show cause notice issued to her stated that her father had already replied through affidavit on 22.7.2021 and since information which was being demanded from her was actually related to her father and her father had submitted his affidavit, there was no reason for a separate reply to be submitted by the petitioner. 15. Even if the petitioner's contention that the amended Rules of 2015 were inapplicable to the employees of the KESCO is taken to be correct, this Court cannot close its eyes to the subterfuge to which the petitioner resorted while seeking compassionate appointment under Dying in Harness Rules, 1975 from the respondents. The petitioner had filled up the Application form showing her father and herself to be dependent upon her mother and deliberately not filling up column meant for monthly income and income from other sources. The Rules of 1974 are called Uttar Pradesh Rajya Vidyut Parishad Sewakal mein Mrit Sewakon Ke Ashriton Ki Bharti Niyamwali-1975. The petitioner was not a dependent on her deceased mother and therefore even the unammended Rules of 1975, were inapplicable to her. 16. Additionally, the petitioner had been given appointment on 24.6.20221 and as soon as the Verification form was filled up by the petitioner, the concealment/misrepresentation was discovered by the respondents and she was given a show cause notice and sufficient opportunity to place her case. She was not a confirmed employee, but only a probationer. 17. This Court finds no good ground to show interference in the order impugned more so in view of the observations made by the Hon'ble Supreme Court in the Case of State of Maharashtra and Another Vs. Madhuri Maruti Vidhate 2002 SCC Online SC 1327. The Supreme Court in the said case has made the following observations :- "9. In the recent decision, this Court in the case of Director of Treasuries in Karnataka and Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. The Supreme Court in the said case has made the following observations :- "9. In the recent decision, this Court in the case of Director of Treasuries in Karnataka and Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh Vs. State of Karnataka, (2020) 7 SCC 617 , this Court has summarised the principle governing the grant of appointment on compassionate ground as under:- (i) that the compassionate appointment is an exception to the general rule; (ii) that no aspirant has a right to compassionate appointment; (iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India; (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy; (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment. 10. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right. 11. In the case of State of Himachal Pradesh and Anr. Vs. Shashi Kumar reported in (2019) 3 SCC 653 , this Court had an occasion to consider the object and purpose of appointment on compassionate ground and considered the decision of this Court in the case of Govind Prakash Verma Vs. LIC, reported in (2005) 10 SCC 289 , in paras 21 and 26, it is observed and held as under:- "21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 , has been considered subsequently in several decisions. LIC, reported in (2005) 10 SCC 289 , in paras 21 and 26, it is observed and held as under:- "21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 , has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 ]. The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 ] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 ], SCC pp. 139-40, para 2) "2. ... As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. 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 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 favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned." 26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [ (2008) 11 SCC 384 ] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case." 12. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case." 12. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased. 13. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, to appoint the respondent now on compassionate ground shall be contrary to the object and purpose of appointment on compassionate ground. The respondent cannot be said to be dependent on the deceased employee, i.e., her mother." 15. The writ petition stands dismissed. No order as to costs.