Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2876 (ALL)

Deepak Kumar v. State of U. P.

2023-12-21

J.J.MUNIR

body2023
JUDGMENT : (J.J. Munir, J.) This writ petition is directed against the order dated 14.09.2023 passed by the Nagar Swasthya Adhikari, Nagar Nigam, Saharanpur, rejecting the petitioner’s application for compassionate appointment. 2. Heard Mr. Siddharth Khare, learned Counsel for the petitioner, Mr. Surya Pratap Singh, Advocate holding brief of Mr. Jai Bahadur Singh, learned Counsel for respondent Nos. 4, 5 and 6, and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3. 3. The petitioner’s father, Balbir Singh, was a permanent employee, a Safai Karmchari with the Nagar Nigam, Saharanpur. He died in harness on 05.04.2023. The deceased-employee’s father, Chandu Ram, was a government employee with the then Nagar Palika Parishad, Saharanpur. He suffered from indifferent health, and therefore, submitted his resignation. Consequent upon Chandu Ram’s resignation, the petitioner’s father and Chandu Ram’s son, Balbir Singh, was appointed in the year 1990 as a Safai Karmchari, a position he held until his death in harness on 05.04.2023. The petitioner was solely dependant upon his deceased father for his livelihood and sustenance. The petitioner has earned his degree of Master of Arts (M.A.), besides Bachelor of Arts (B.A.) in English. He also holds a Diploma in Elementary Education. The petitioner applied for compassionate appointment commensurate to his educational qualifications. His application has been rejected by the Nagar Swasthya Adhikari by the order impugned dated 14.09.2023. 4. Aggrieved, the petitioner has instituted the present writ petition. 5. A perusal of the impugned order shows that the reason assigned to decline the petitioner’s claim for compassionate appointment is that according to the Government Order dated 15.09.2002, in force at the relevant time, there was no provision to grant the petitioner’s father an appointment for reason that his father had resigned his job. It has been further observed that going by the order of the Nagar Ayukt, Nagar Nigam, Saharanpur dated 12.09.2023, the petitioner cannot be granted appointment in place of his deceased father, because the deceased was not lawfully appointed. 6. The moot question involved in this petition is : Whether compassionate appointment can be denied to a candidate on ground that the deceased-employee, whose demise gives him a right under the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974/Dying-in-Harness Scheme, was not lawfully appointed? 7. A return has been filed on behalf of respondent Nos. 6. The moot question involved in this petition is : Whether compassionate appointment can be denied to a candidate on ground that the deceased-employee, whose demise gives him a right under the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974/Dying-in-Harness Scheme, was not lawfully appointed? 7. A return has been filed on behalf of respondent Nos. 1, 2 and 3 by the Principal Secretary, Urban Development Department, Government of U.P. and a separate counter affidavit, on behalf of respondent Nos. 4, 5 and 6, by the Apar Nagar Ayukt, Nagar Nigam, Saharanpur. The unanimous stand taken is that the petitioner’s father was appointed de hors the Rules, because his father had resigned his post as a Safai Karmchari, which did not give the petitioner a right to be appointed. Nevertheless, the petitioner’s father was appointed on the sole premise that his father had resigned on account of ill-health. 8. Learned Counsel for the petitioner has contended that the validity of the petitioner’s father’s appointment is irrelevant to judge the petitioner’s claim, because the petitioner’s father, while in harness, was never declared to be unlawfully appointed. Learned Counsel for the petitioner has placed reliance upon the decision of a learned Single Judge of this Court in Karan Addiwal v. State of U.P. and others, Writ -A No. 1941 of 2023, decided on 28.02.2023. He submits that on identical facts, it has been held that validity of appointment of the deceased-employee, whose dependant claims compassionate appointment, cannot be gone into for the purpose of determining the entitlement under the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974,[‘the Rules of 1974’ for short]. It is also pointed out that the decision of learned Single Judge in Karan Addiwal (supra) has been upheld by the Division Bench in Nagar Ayukt, Nagar Nigam through its Chief Executive Officer and others v. Karan Addiwal and others, Special Appeal Defective No. 317 of 2023 (Neutral Citation No.2023 AHC 107579-DB). 9. Mr. Surya Pratap Singh, learned Counsel appearing Nagar Nigam, Saharanpur and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of the State have strenuously argued that apparently, the petitioner’s father could have never been appointed, except in accordance with the Rules of 1974, to a post governed by Statute. 9. Mr. Surya Pratap Singh, learned Counsel appearing Nagar Nigam, Saharanpur and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of the State have strenuously argued that apparently, the petitioner’s father could have never been appointed, except in accordance with the Rules of 1974, to a post governed by Statute. The petitioner’s father held the position of a Safai Karmchari in the employ of the Nagar Nigam, and that appointment has been made in his favour simply on ground that his father had resigned due to ill-health. Mr. Singh and Ms. Arya emphatically submit that no such appointment could ever have been made, which is de hors the Rules. 10. Learned Counsel for the respondents have invited this Court’s attention to the appointment letter dated 08.11.1989 issued by the Senior Medical Officer of the Health Municipal Board, Saharanpur, appointing the petitioner’s father. It says that the petitioner’s father was being appointed in compliance with an order of the Chairman of the Nagar Palika in the vacancy caused due to the resignation of Chandu Ram. Learned Counsel for the respondents have emphasized that there is apparently nothing under the Rules of 1974, where, on account the resignation of an employee of a Nagar Palika in harness, for whatsoever reason, his son can be offered an appointment, without following the due procedure of selection. Therefore, in the submission of learned Counsel for the respondents, the appointment of the petitioner’s father on the post of a Safai Karmchari must be held nonestand void ab initio, which does not confer any right upon the petitioner to ask for a consideration for compassionate appointment. 11. An identical issue arose in Karan Addiwal and in answering it, my esteemed Brother Neeraj Tiwari observed : Learned Senior Counsel appearing for petitioner further submitted that once, it is undisputed that father of petitioner was given appointment on compassionate ground after resignation of his grand-father and he was permitted to continue in service till his death i.e. 18.02.2019. No departmental proceeding has ever been initiated against father of petitioner, therefore, after his death, application of petitioner for compassionate appointment cannot be rejected on the ground that appointment of his father was bad and de hors the rules. He next submitted that as on date, father of petitioner is not alive, therefore, no departmental proceeding can be initiated against him. He next submitted that as on date, father of petitioner is not alive, therefore, no departmental proceeding can be initiated against him. In support of his contention, he has placed reliance upon the judgement of Apex Court in the matter A.K.S. Rathore (Dead) through Lrs. vs. Union of India & Anr. (Civil Appeal No. 7028 of 2022) decided on 28.09.2022. Learned counsel for respondents though opposed, but could not dispute the factual as well as legal submissions made by counsel for petitioner. I have considered the submissions made by counsel for parties and perused the records as well as judgments cited above. Facts of the case are undisputed. Appointment of father of petitioner cannot be treated invalid or contrary to the rules after his death coupled with this fact that against his appointment, he was never charge sheeted. Therefore, appointment of father of petitioner shall be treated valid and application of petitioner for appointment on compassionate ground cannot be rejected on the ground that appointment of his father was bad and contrary to the rules. Law is very well settled that against a dead person, no inquiry proceeding can be initiated as held by the Apex Court in the matter of R.K.S. Rathore (Supra) and the said judgment is also followed by this Court in Writ-A No. 15004 of 2022. 12. On appeal from the aforesaid judgment, it was held by the Division Bench in Nagar Ayukt, Nagar Nigam v. Karan Addiwal (supra) : It appears that the writ petitioner namely respondent no.1 herein has moved an application for grant of compassionate appointment on account of death of his father in harness on 18.2.2019. The said application has been rejected on the ground that the appointment of father of the petitioner itself was bad, inasmuch as, the father of the petitioner got appointment after resignation of the grandfather of the writ petitioner though there was no provision for the same. We may note that the father of the petitioner namely the deceased employee had been appointed by an order of the Executive Officer, Nagar Nigam, Saharanpur on 1.6.1991 and had continued in service till his untimely death. During the entire service period of the deceased employee, neither any dispute had been raised with regard to the validity of his appointment nor any adjudication had been made any competent authority or a court of law. During the entire service period of the deceased employee, neither any dispute had been raised with regard to the validity of his appointment nor any adjudication had been made any competent authority or a court of law. It is, therefore, not permitted for the respondents to make any inquiry into the validity of the appointment of the deceased employee made on 1.6.1991 by then Executive Officer, Nagar Nigam, Saharanpur, after his death, at the time of consideration of claim of the petitioner for grant of compassionate appointment on account of untimely death of his father. 13. In the opinion of this Court, the crux of the matter is whether the appointment of the petitioner’s father can be adjudged void posthumously and retrospectively. In our considered opinion, that cannot be done. It is well settled that that an employee, after being appointed to a post, eligible or ineligible, cannot be removed, except by the procedure established by law. Generally, for a permanent employee, even if there is a case about ineligibility, some kind of proceedings, normally disciplinary proceedings, have to be taken to determine his employment. Once an employee, who has occupied a post governed by Statute is dead, no proceedings of any kind can be taken, terminating his status after his demise. Even if it be considered that the petitioner’s father’s appointment was made contrary to the Statute, holding it so after his demise, would be passing an order against a dead man adverse to his interest, particularly one relating to his status. If disciplinary proceedings were initiated against the petitioner’s father on the charge that he secured an appointment, that was invalid, deliberately, these would abate upon his demise, as held by the Supreme Court in A.K.S. Rathore (Dead) through LRs v. Union of India and another, Civil Appeal No. 7028 of 2022, decided on 28.09.2022. Since no disciplinary proceedings or other proceedings were initiated during the petitioner’s father’s lifetime, no different consequence can attach after his death vis-à-vis his status and the rights of his dependents. The petitioner’s father held a permanent post in the establishment of the Nagar Nigam, Saharanpur until his demise. Therefore, the respondents are obliged to consider the petitioner’s candidature for compassionate appointment as an eligible member of the deceased-employee’s family, in accordance with the Rules of 1974. 14. In the result, this writ petition succeeds and stands allowed. The petitioner’s father held a permanent post in the establishment of the Nagar Nigam, Saharanpur until his demise. Therefore, the respondents are obliged to consider the petitioner’s candidature for compassionate appointment as an eligible member of the deceased-employee’s family, in accordance with the Rules of 1974. 14. In the result, this writ petition succeeds and stands allowed. The impugned order dated 14.09.2023 passed by the Nagar Swasthya Adhikari, Nagar Nigam, Saharanpur is hereby quashed. A mandamus is issued to the Nagar Ayukt, Nagar Nigam, Saharanpur and the Nagar Swasthya Adhikari, Nagar Nigam, Saharanpur to consider and decide, between themselves, the petitioner’s claim for appointment on compassionate basis in accordance with law, within a month of the date of receipt of a copy of this judgment. 15. The Registrar (Compliance) is directed to communicate this order to the Nagar Ayukt, Nagar Nigam, Saharanpur and the Nagar Swasthya Adhikari, Nagar Nigam, Saharanpur.