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Allahabad High Court · body

2022 DIGILAW 680 (ALL)

Pawani Awasthi v. State of U. P.

2022-05-04

RAJAN ROY

body2022
JUDGMENT : RAJAN ROY, J. 1. Heard Sri Vijay Kumar Srivastava, learned counsel for the petitioner, Sri Vivek Shukla, learned Additional C.S.C. and Sri Ajay Kumar, learned counsel for the B.S.A. 2. By means of this petition, the petitioner has prayed for the following reliefs: “(I) A writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 04.12.2019 as well as the order dated 27.08.2020, passed by the opposite party No. 3, to the extent it denies to give appointment on a Group-C Post, contained as Annexure No. 1 and 2 to this writ petition. (I-A) a writ order or direction in the nature of Certiorari thereby quashing the Government Order dated 04.09.2000 to the extent it provides for attaining the educational qualification on the date of death of deceased employee, which is contained as annexure no. 11 to the writ petition. (II) A writ, order or direction in the nature of Mandamus thereby directing the opposite parties to provide appointment to the petitioner on Group-C Post under Dying-In-Harness Rules 1974. (III) Any other order or direction may also be passed which the Hon'ble Court deems fit and proper under the facts and circumstances of the case. (IV) Cost of the writ petition may kindly be awarded to the petitioner.” 3. The petitioner’s mother was an Assistant Teacher at Primary School, Bhagginivada, Block-Shivrajpur, Kanpur Nagar. She died-in-harness on 07.10.2016. The applicant- petitioner who was at that time studying in intermediate after having passed the high school applied for compassionate appointment on 30.09.2019 after completing her intermediate. The claim has been rejected vide orders of B.S.A. Kanpur Nagar dated 04.12.2019 and 27.08.2020 on the ground that as per Government Order dated 04.09.2000, the person applying for compassionate appointment should have the requisite qualification for the post on the date of death of the deceased employee. It is worthwhile to mention that on the date of her mother’s death, the petitioner was aged one month less than sixteen years, her date of birth being 20.11.2000. Para No. 5 of the writ petition is relevant in this regard. The high school mark-sheet also discloses the aforesaid fact, copy of which is annexed as Annexure No. 6 to the petition. 4. The State has not filed any counter affidavit inspite of order dated 28.07.2021 and subsequent orders dated 16.08.2021, 06.09.2021 and 21.09.2021. Para No. 5 of the writ petition is relevant in this regard. The high school mark-sheet also discloses the aforesaid fact, copy of which is annexed as Annexure No. 6 to the petition. 4. The State has not filed any counter affidavit inspite of order dated 28.07.2021 and subsequent orders dated 16.08.2021, 06.09.2021 and 21.09.2021. The Court, therefore, proceeds to decide the matter. 5. The high school mark-sheet also discloses the aforesaid fact, copy of which is annexed as Annexure No. 6 to the petition. 4. The State has not filed any counter affidavit inspite of order dated 28.07.2021 and subsequent orders dated 16.08.2021, 06.09.2021 and 21.09.2021. The Court, therefore, proceeds to decide the matter. 5. When the Court peruses the Government Order dated 04.09.2000, it finds that in Para No. 3(5), the following provision has been made: ^^¼5½ ,sls e`rd vkfJr tks] lEcfU/kr deZpkjh dh e`R;q ds fnukad dks e`rd vkfJr ds :i esa lsok;kstu ds fy;s U;wure 'kSf{kd vgZrk b.VjehfM,V vFkok mlls vf/kd j[krs gksa vkSj csfld f'k{kk ifj"kn ds v/khu v/khuLFk Lrjksa ij fyfid ds lEoxZ ds lcls uhps ds in ij lsok;kstu ds fy;s vU;Fkk vgZrk gks] dks lEcfU/kr tuin ds fyfid ds fjDr in ds lkis{; laoxZ esa lcls uhps ds in ij lsok;kstu Ánku fd;k tk;sxkA tuin esa fjDr fyfid ds in ij e`rd vkfJr ds :i esa lsok;kstu ds fy, ÁkIr leLr vkosnu i=ksa dks ÁFke vkxr ÁFke ÁnRr ds vk/kkj ij iathd`r fd;k tk;sxk rFkk foHkkx ds fjDr gksus okys inksa ds lkis{; ÁFke vkxr ÁFke ÁnRr ds fu;e dk ikyu lqfuf'pr djrs gq, lsok;kstu Ánku fd;k tk;sxkA fu;qfDr Ákf/kdkjh rn~uqlkj e`rd vkfJr vH;kfFkZ;ksa dh lwph dks ÁR;sd ekg ds ÁkjEHk esa vius dk;kZy; ds lwpuk iVy ij Ánf'kZr djsaxs vkSj ÁR;sd ekg gksus okyh fjfDr ds lkis{; lsok;ksftr e`rd vkfJr dk uke Ánf'kZr djrs gq, mDr lwph dk rn~uqlkj la'kksf/kr dj vxys ekg ds ÁkjEHk esa v|kof/kd la'kksf/kr lwph dk;kZy; esa lwpuk iVy ij Ánf'kZr djrs jgsaxsA r`rh; Js.kh ds fjDr in ds lkis{; e`rd vkfJr lsok;kstu ds fy, ÁR;sd vH;FkhZ ds uke fu;qfDr Ákf/kdkjh ds dk;kZy; esa iathd`r gksus dh frfFk ls ikap o"kZ dh vof/k iwjh gksus ds ekg ds vafre dk;Z fnol rd ;fn ÁFke vkxr ÁFke ÁnRr ds fl}kUr ds vuqlkj lsok;kstu gsrq Js.kh rhu dh fjfDr miyC/k ugha gksrh rks lEcfU/kr vH;FkhZ dk uke iathd`r vH;kfFkZ;ksa dh lwph ls fudky fn;k tk;sxk fdUrq bl vof/k ls iwoZ ;fn Js.kh pkj ds fjDr in@vf/kla[; in ds lkis{; lsok;kstu gsrq viuk la'kksf/kr vkosnu i= fu;qfDr Ákf/kdkjh ds dk;kZy; esa iathd`r djk ysa rks ml ij fopkj fd;k tk;sxkA e`rd vkfJr ifjokj dh dfBu ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, ;fn dksbZ vH;FkhZ] fyfid laoxZ ds in dh fjfDr ds lkis{; lsok;kstu esa] lEHkkfor foyEc dks] n`f"Vxr j[krs gq, ;fn rRdky lsok;kstu dh vko';drk vuqHko djrk gks rks fu;qfDr Ákf/kdkjh ds fy, ,sls vH;kfFkZ;ksa ds lEcU/k esa prqFkZ Js.kh esa fjDr ;k vf/kla[; inksa ds lkis{; e`rd vkfJr ds iqujhf{kr vkosnu i= ÁLrqr djus ij lsok;kstu djus dk vf/kdkj gksxkA ;gka ;g Li"V fd;k tkrk gS fd ,d ckj e`rd vkfJr ds :i esa ÁnRr lsok;kstu dh lqfo/kk ij iquZfopkj dk dksbZ volj ugha jgsxkA** 6. Para No. 3(8) of the same Government Order reads as under: ^^¼8½ e`rd vkfJr }kjk lEcfU/kr deZpkjh ds e`R;q ds fnukad ls ikap o"kZ ds Hkhrj lsok;kstu ds fy, vkosnu ÁLrqr fd;k tk ldrk gSA ijUrq tgka jkT; ljdkj dks ;g lek/kku gks tk;s fd lsok;kstu ds fy, vkosnu djus ds fy, fu;r le; lhek ls fdlh fof'k"V ekeys esa] vuqfpr dfBukbZ gksrh gS ogka og vis{kkvksa dks] ftUgsa og ekeys esa U;k;laxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh djus ds fy, vko';d le>s] vfHk;qDr ;k f'kfFky dj ldrh gSaA fu;eksa ls bl vk'k; dh vfHkeqfDr@f'kfFkyhdj.k ds lEcU/k esa ÁLrko lEcfU/kr fu;qfDr Ákf/kdkjh }kjk f'k{kk funs'kd ¼csfld½ ds ek/;e ls 'kklu dks Ásf"kr fd;s tk;saxsA** 7. Sub-Para (8) of Para (3) of the aforesaid Government Order permits filing of such application for compassionate appointment within five years from the date of death of the deceased employee. In suitable cases, this time period can also be extended by the State Government. Para 3(1) of the aforesaid Government Order refers to the U.P. Recruitment of Dependents of Government Servants Dying in Harness (Fifth Amendment), Rules, 1999 and makes provision for the basic education schools accordingly. On a conjoint reading of various provisions contained in the Government Order dated 04.09.2000 especially Para 3(5) and 3(8), there can be no rational and intelligible criteria for a condition such as the one mentioned in Para 3(5) for providing compassionate appointment to such dependents of a deceased employee who possess the minimum qualification of intermediate or above for such employment as on the date of death of the deceased employee, meaning thereby, those not being the required qualification on the date of death of the deceased employee would not be considered for compassionate appointment The object of such a provision for providing compassionate appointment is to enable the family of the deceased employee to tied-over the financial crisis as has already been held in a catena of decisions. What if a dependent of the deceased employee acquires the minimum educational qualification prescribed for a particular post subsequent to date of death of the deceased employee and within the period of five years during which he/she can move such application for compassionate appointment. If in such eventuality, he/she is to be denied consideration for compassionate appointment, it will be highly unreasonable and will defeat to the object sought to be achieved. If in such eventuality, he/she is to be denied consideration for compassionate appointment, it will be highly unreasonable and will defeat to the object sought to be achieved. In fact, in the 1974 Rules, as applicable to government servants, there is no such embargo. The provision for compassionate appointment in basic school has been brought about on similar lines as the 1974 Rules applicable to the government servants as amended in 1999 as already referred hereinabove and as is mentioned in Para 3(1) of the Government Order dated 04.09.2000. Now, when the Court peruses the aforesaid rules of 1974 as amended in 1999, Rule (5) of the aforesaid Rules, 1974 it does not contain any such stipulation that the educational qualification should be fulfilled by such dependent of a deceased employee on the date of death of the deceased. 8. The petitioner completed her intermediate from C.B.S.E. Board prior to 02.05.2019 as the mark-sheet for the said examination issued by C.B.S.E. bears the said date and she applied for compassionate appointment thereafter on 30.09.2019. In fact, the petitioner on the date of death of her mother was less than sixteen years of age, therefore, she could not possibly apply for compassionate appointment. Para 3(8) of the aforesaid G.O. itself permits submission of such applications within five years from the date of death of the deceased employee. One of the objects of such provision is to enable a dependent who is otherwise minor, may be slightly below the age of majority, so that he or she may not be deprived of such compassionate appointment and may not have to undergo the consequential financial deprivation. Therefore, the provision in Para 3(5) does not appear to be reasonable by any standards. 9. Considering the aforesaid, the provision contained in Para No. 3(5) of the aforesaid Government Order is patently unreasonable and hit by Article 14 of the Constitution of India. Therefore, the provision in Para 3(5) does not appear to be reasonable by any standards. 9. Considering the aforesaid, the provision contained in Para No. 3(5) of the aforesaid Government Order is patently unreasonable and hit by Article 14 of the Constitution of India. However, instead of quashing the said provision, the ends of justice would suffice if the words ^^¼5½ ,sls e`rd vkfJr tks] lEcfU/kr deZpkjh dh e`R;q ds fnukad dks e`rd vkfJr ds :i esa lsok;kstu ds fy;s U;wure 'kSf{kd vgZrk b.VjehfM,V vFkok mlls vf/kd j[krs gksa----------** are read down to mean that the dependent of the deceased employee who applies for compassionate appointment should possess the minimum educational qualification prescribed for the post in question on the date of submission of such application or on the date of being considered for selection but within the time limit prescribed by Para 3(8) of the said Government Order dated 04.09.2000, otherwise the provision would not stand the test of Article 14 of the Constitution of India. This will protect it from being declared unconstitutional. The Government Order shall now be read, understood and applied accordingly. In view of the above clarification of law on the subject, the impugned orders dated 04.12.2019 and 27.08,2020 are quashed. The claim of the petitioner shall now be reconsidered for compassionate appointment for a clerical post in the light of the aforesaid, subject to availability of vacancy and the decision taken shall be communicated to the petitioner within three months. If there is no vacancy on a clerical post then the claim of the petitioner shall be considered for compassionate appointment against a Class-IV post. 10. Accordingly, the writ petition is allowed in the aforesaid terms.