Allahabad High Court
Mamta Kumari vs State Of U.P. And Others on 28 August, 2014
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 34
Case :- WRIT - A No. - 60839 of 2010
Petitioner :- Mamta Kumari
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Siddharth Khare
Counsel for Respondent :- C. S. C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Siddharth Khare,learned counsel for the petitioner and perused the record.
2. Petitioner's husband, working in U.P. Police Force as Constable, died on 08.01.2005. Thereafter petitioner applied for compassionate appointment. The educational qualification possessed by petitioner is High School. The petitioner wants to be appointed as Constable but during pendency of application it appears that statutory rules were framed wherein minimum qualification for appointment to the post of Constable prescribed was Intermediate and, therefore, after enforcement of statutory rules petitioner could not be appointed as Constable.
3. Learned counsel for the petitioner contended that since petitioner applied for compassionate appointment in 2006 when her qualification was High School, therefore, petitioner could not have been denied appointment on compassionate basis as Constable on the ground of amendment in rules.
4. In the present case appointment has been claimed under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the "Rules, 1974"). Rule 5(1) contemplates that the incumbent sought to be considered for appointment must fulfill the qualification prescribed for the post on which he/she is sought to be appointed. The rule does not contemplate any particular point of time which would apply for the purpose of attracting three conditions necessary for appointment on compassionate basis which the incumbent must satisfy but a careful perusal thereof would show that there are two conditions which must be satisfied by the incumbent concerned at the time of appointment, i.e., (I) if such person fulfills educational qualifications prescribed for the post; and, (ii) if he/she otherwise qualified for Government service.
5. I am fortified in taking the above view from other rules of Rules, 1974, i.e., Rules 6, 8, and 9. Rule 6 requires the information which applicant has to provide in application form. It does not require him/her to mention the particular post on which he/she is seeking appointment and the qualifications prescribed therefor. He/she has to disclose his/her own qualification etc. and thereafter it is for the concerned appointing authority to look and decide as to which post the applicant satisfy requirement for appointment. Rule 8 talks of relaxation in age but it does not include educational qualification. It is also said that appointment shall be made against an existing vacancy. Rule 9 requires appointing authority to be satisfied when a candidate is appointed, in respect of his character, physical fitness etc.
6. From the scheme of Rules, 1974 I have no manner of doubt that eligibility conditions of a person who has sought to be appointed on compassionate basis, have to be looked into at the time of appointment and if at that time he/she is not qualified to be appointed on a particular post, dehors the rules such appointment cannot be made otherwise it would be illegal. Appointing authority is well competent to consider the applicant against any other post in respect whereof the applicant satisfy qualifications. Therefore, it is the time of appointment which would be relevant for this purpose. There can be variations in this respect as it depends on the scheme of compassionate appointment but in this case there is nothing to take on exception to the view which I have taken.
7. In one matter before Apex Court the argument was that the scheme which was applicable at the time of death of deceased employee or when application was given must be looked into and not new scheme of compassionate appointment which has come into existence when applications were pending. The Court held that it is the new scheme which will apply, looking to the conditions therein.
8. In State Bank of India and another Vs. Raj Kumar, 2010(11) SCC 661 looking to the scheme applicable therein the Apex Court observed that it is the scheme applicable on the date of consideration which will apply. This was in the light of specific provisions contained in new scheme which clearly says that all pending applications will be considered only in terms of new scheme and then the Court said for this reason the new scheme alone would apply at the time of consideration of application. The Court further held that compassionate appointment is a concession and not right. As compassionate appointment is a concession and not a right. The employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts. I find that this Court has also considered this question in detail in Pawan Kumar Vs. State of U.P. and another, 2013 (4) ADJ 455.
9. Since in the present case the statutory rules of recruitment have been framed in 2008, being UP (Civil Police) Constables and Head Constables Service Rules, 2008 (hereinafter referred to as the "Rules, 2008") which prohibits appointment made on the post of Constable unless incumbent satisfy qualification thereunder, the Rules, 1974 have to be read in consonance with Rules, 2008. That being so, petitioner cannot claim that since she submitted application in the present case in 2006, i.e., before Rules, 2008 came into existence, therefore, she should be given appointment dehors the Rules, 2008. It is impermissible. Even Rules, 1974 clearly contemplates that for any appointment the incumbent must possess qualification prescribed under the Rules. In my view, petitioner has rightly been non-suited for appointment to the post of Constable.
10. Be that as it may, since respondents themselves in para 4 of their counter affidavit have said that petitioner, if so agree, may be considered for compassionate appointment on a Class-IV post. It is open to petitioner to stake her claim against a Class-IV post commensurating to her qualification.
11. If petitioner submit her consent for consideration on Class-IV post, the respondent-competent authority is directed to consider her application for compassionate appointment commensurating to her qualification for a suitable appointment on Class-IV post and pass appropriate order expeditiously and in any case within a period of two months from the date of production of a certified copy of this order.
12. With the aforesaid direction, the writ petition is disposed of.
Order Date :- 28.8.2014
AK
