Anil Kumar Jain vs State Of U.P. And Others
2015 Latest Caselaw 469 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 26
 

 
Case :- WRIT - A No. - 54918 of 2010
 

 
Petitioner :- Anil Kumar Jain
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- S. C. Srivastava
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Manoj Kumar Gupta,J.

1. Heard learned counsel for the petitioner and the learned standing counsel appearing on behalf of the State-respondents. Pleadings have been exchanged between the parties and with their consent, the writ petition was heard finally.

2. The petitioner has challenged an order dated 10 June 2010 passed by the fourth respondent by which, his services on the post of Lekhpal had been terminated treating it to be temporary, by taking recourse to the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules1, 1975 and has prayed for a writ of mandamus directing the respondents to treat him to be in continuous service and pay his salary on month to month basis.

3. The background facts, as stated in the impugned order dated 10 June 2010, reveals that the petitioner was appointed as a Lekhpal on temporary basis by an order of the then Sub Divisional Magistrate, Sardhana, Meerut dated 14 June 1990. The appointment letter has not been brought on record. However, the nature of appointment is evident from a communication dated 24 May 1990 by Senior Administrative Officer, Meerut, wherein it is clearly mentioned that the appointment of the petitioner on the post of Lekhpal is on temporary basis. It is not in dispute between the parties that the aforesaid appointment was given to the petitioner by extending him the benefit of the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 19742 consequent to the death of his father Sri Jayanti Prasad Jain, who was also working on the post of Lekhpal.

4. The services of the Lekhpal in the State are governed by the Lekhpals Service Rules, 19583. Rule 3(h) defines a 'member of the service' as under :-

3(h) "Member of the service" means a person appointed to the service in accordance with the provisions of these rules or of rules or orders in force previous to the introduction of these rules."

Rule 5 of the Service Rules, interalia provides as under :-

"5. Source of recruitment: - (1) Only such candidates as have obtained the Patwari or Lekhpal School Certificate and whose names have been brought on the list mentioned in Rule 6 shall be eligible for appointment to the service".

5. Rule 6 enjoins on the Collector a duty to maintain a list of the candidates who have passed the Patwari or Lekhpal School Examination and Rule 7 envisages appointment of the candidates whose names figure in such list, on the basis of seniority. Admittedly, the petitioner prior to his appointment had not passed the Lekhpal School Examination, and is thus an untrained person.

6. It transpires from the facts stated in the impugned order that initially the policy of the State under the Government Order dated 29 July 1983 was to hold a special examination for untrained persons appointed under the Dying in Harness Rules and to confer upon them the status of a regular Lekhpal once they qualify the examination. Later on, there was a shift in the government policy. A Government Order dated 29 May 1990 was issued which imposed a complete ban on appointment of a person as Lekhpal unless the requisite training qualification is possessed by such person. Thus, every candidate aspiring to be a permanent member of service was required to undergo the training and pass the Lekhpal School Certificate Examination.

7. The respondents in accordance with the government policy required the petitioner to acquire the Lekhpal Training. He was relieved from the regular duties on 12 December 1994 and was asked to join the Lekhpal Training School at Agra. In pursuance thereof, the petitioner joined the Training Centre at Agra on 16 December 1994. According to the petitioner, since after he joined the Training Centre, he was not paid his salary. He therefore, made a grievance in that regard by letter dated 23 February 1995. The respondents sought clarification from the higher authorities regarding payment of salary to the petitioner during the period he was on training. The higher authorities clarified that persons like the petitioner, shall be entitled to salary during the training period. However, before the grievance of the petitioner in regard to non-payment of salary could be redressed, he stopped attending the Training Centre. According to the petitioner, he had fallen ill and consequently left the training mid way since 30 April 1995. He submitted his joining before the sixth respondent on 4 December 1996 alongwith a fitness certificate from a private doctor. The sixth respondent did not permit the petitioner to resume his duties and rather sought clarification from the Principal of the Training Institute at Agra in regard to the absence of the petitioner. By a communication dated 25 April 1997, the Principal of the Training Centre at Agra informed the sixth respondent that the petitioner was absent from the Training Institute since 30 April 1994 without any leave application. He had also not appeared in the annual examination held in September/October 1995. It is further disclosed therein that no medical certificate regarding illness of the petitioner had been received in the Training Institute. On receipt of the said communication, the sixth respondent by a letter dated 9 September 1998 sought guidelines from the Commissioner and Secretary, Board of Revenue, Lucknow with regard to payment of salary to the petitioner and the action to be taken against him. It seems that after exchange of several letters, the Board of Revenue by means of its letter dated 25 January, 2010 issued guidelines and whereafter, the petitioner was issued a show cause notice dated 12 March 2010. The petitioner was charged for having left the Training Institute without any notice and of being guilty of not completing the training despite being given opportunity to acquire the essential qualification and thereby become a permanent member of the service. He was called upon to show cause why in such circumstances, his services should not be terminated. The petitioner submitted his reply to the show cause notice on 30 March 2010.

8. The fourth respondent after considering the reply submitted by the petitioner passed the impugned order dated 10 June 2010 by which it is held as under :-

(a) The petitioner is not entitled to the benefit of the Government Order dated 29 July 1983. It is held that the aforesaid Government Order had been replaced by a new policy with the issuance of the Government Order dated 29 May 1990, whereunder a candidate not possessing the requisite training cannot become a permanent member of the service unless he passes the Lekhpal School Certificate Examination. To enable untrained persons to acquire such training and thereby become permanent members of the service, they were given opportunity to acquire the necessary training. It was in accordance the said Government Order that the petitioner was given the opportunity to acquire the requisite training, while entitling him to salary during the period of training. He however, failed to avail the opportunity by abandoning the course mid way.

(b) The second plea of the petitioner that he had not deliberately absented from the training was disbelieved. It has been held that in case, the petitioner had fallen ill on 30 April, 1995, since when he was absent, he could have submitted a leave application and a medical certificate in that regard. It is held that even in the application filed by the petitioner on 25 November 1995, seven months after his absence, he only raised a grievance regarding non-payment of salary and did not mention a word about his alleged illness.

(c) As regards the contention of the petitioner that he had submitted the medical certificate by post, it has been found that no such document was received in the office of the respondents. The documents have admittedly not been sent by registered post but under postal certificate. The respondents have held that the postal receipt seems to be doubtful, the medical certificate from a private practitioner submitted for the first time on 4 December 1996 appears to have been procured at the time of submitting the joining application. The respondents have therefore, disbelieved the version of the petitioner that he remained absent from training because of his illness.

9. With these findings, the fourth respondent has held that since there was a legal bar under the Service Rules, for induction of a person as a permanent member of the service without his being in possession of a training certificate and thus, the petitioner would be deemed to be continuing as a temporary employee and accordingly his services were terminated by giving one month's salary in lieu of the notice.

10. The only contention raised by Sri S.C. Srivastava, learned counsel appearing on behalf of the petitioner is that the appointment of the petitioner being under the Dying in Harness Rules, he cannot be treated to be a temporary employee nor his services could have been terminated by taking recourse to the Rules, 1975. In this regard, he has placed reliance on a Division Bench Judgement of this Court in case of Sanjay Kumar v. Dy Director General (NCE), U. P. Lucknow4. It is submitted that infact the very action of the respondents in sending him for training after 4 ½ years was illegal, as after completing three years of service, he had acquired the status of a permanent member of the service.

11. On the other hand, the learned standing counsel submitted that the petitioner having not passed the Lekhpal School Examination did not acquire the status of a permanent member of the service. He was rightly treated to be a temporary employee and there is no illegality or infirmity in the decision of the fourth respondent in dispensing with his services treating him to be in temporary service.

12. I have considered the submissions made by the learned counsel for the parties and examined the material on record.

13. It is not disputed before this Court by learned counsel for the petitioner that under the Service Rules, only a person possessing Patwari or Lekhpal School Examination Certificate could be appointed to the post of Lekhpal. It is also not disputed that the petitioner does not possess such certificate. The issue before this Court is therefore, regarding the status of the petitioner, who as noted above, was appointed by giving him the benefit of the Dying in Harness Rules.

14. A perusal of the condition attached to the appointment of the petitioner would indicate that the appointment of the petitioner was on purely temporary basis. The Service Rules admittedly provides that a person who is not having Patwari or Lekhpal School Examination certificate cannot be appointed to the cadre of Lekhpal. It was implicit in the temporary appointment which was granted to the petitioner that he would complete the training and whereupon he would become a permanent member of the service. This was strictly in consonance with the policy as per Government Order dated 29 May, 1990.

15. Rule 16 of the Service Rules provides that initial appointment against a substantive vacancy shall be on probation for a period of two years. Clause (e) of Rule 16 further provides that the period of probation shall continue till the order of confirmation is passed or the probation is terminated. Thus, even in the case where a person is possessed of requisite qualification including Patwari or Lekhpal School Examination, he is initially kept on probation during which period it is observed whether his services are satisfactory or not, with an option to the authorities to dispense with his services in case, it is found that he has not made sufficient use of his opportunities or has otherwise failed to acquaint himself satisfactorily.

16. A Division Bench of this Court in the case of Sri Hakim Singh v. State of U.P. and another5 decided on 30 April 2007, while considering Rule 16 of the Service Rules has held that a person appointed as Lekhpal continues on probation until it is followed by a specific order of confirmation of his services. The plea that there would be automatic confirmation after competition of three years of services was repelled. Relevant observation made in this regard by their Lordships is as under :-

"In the case in hand, we find that Rule 16(e) of 1958 Rules provides that Assistant Collector after assessing the work and conduct of the incumbent if finds it to be satisfactory, shall pass an order of confirmation. It further provides that period of probation shall continue till the order of confirmation is passed or the probation is terminated. This demolishes the very basis of the contention of the learned counsel for the petitioner that maximum period of probation is only three years inasmuch as, clauses (a) and (b) of Rule 16 have to be read along with clause (e) of Rule 16 which extends the period of probation till the order of confirmation is passed or probation is terminated. Rule 16(e) of 1958 Rules brings the present case under third line of cases referred to above which requires a specific act on the part of the employer failing which the presumption of 'deemed confirmation' would have no application. From the very rule applicable in the case in hand, it cannot be said that the principle of 'deemed confirmation' would apply in the instant case. Therefore, we do not find any error apparent on the face of record committed by the Tribunal in rejecting petitioner's claim petition and upholding the order of termination. He continued to be a temporary employee, i.e., a probationer and, therefore, rightly terminated in accordance with rules."

17. The purpose of giving compassionate appointment is to provide immediate succour to the dependants of the deceased employee and thereby, save them from penury. It is now well settled that appointment under the Dying in Harness Rules is not an alternate mode of recruitment. A person seeking appointment under the Dying in Harness Rules, has to comply with the eligibility criteria and the minimum qualification prescribed under the scheme or the Service Rules. The Supreme Court in State Bank of India and others v. Raj Kumar6 has held as under :-

"9. Normally, the three basic requirements to claim appointment under any scheme for compassionate appointment are: (I) an application by a dependant family member of the deceased employee; (ii) fulfilment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment.

12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable."

(emphasis supplied)

18. In the case in hand, the appointing authority, as per the requirements of the Government Order dated 29 May,1990 required the petitioner to undergo a training course and thereby make himself eligible for being inducted as a permanent member of the service. Stipulation in this regard, in the Government Order was thus part and parcel of the appointment given to the petitioner on the post of Lekhpal on adhoc basis. The provision for passing the Lekhpal School Examination, while being paid salary as Lekhpal, was a special concession granted to a candidate appointed on compassionate basis. The petitioner was under obligation to comply with such requirement, failing which his induction as a member of the service was not permissible. Consequently, the respondents had no other option but to dispense with the services of the petitioner by giving him one month's notice in accordance with the Rules, 1975. Such action was also permissible under Rule 16 of the Service Rules.

19. In the case of Sanjai Kumar (supra) rendered in a Special Appeal, the Court was considering the legality of the view taken by a learned Single Judge. The employee was charged of unauthorised absence from service and his services were terminated. The learned Single Judge held that the termination of service of the petitioner, who was appointed on compassionate basis, was illegal as he was not given any opportunity of hearing on the assumption that his services are temporary. It was held by the learned Single Judge that the appointment being under the Dying in Harness Rules, cannot be treated to be a temporary appointment, nor could the service be terminated without granting opportunity of hearing. The Division Bench observed that the view of the learned Single Judge, treating the employee to be permanent, is in consonance with the earlier Division Bench Judgement wherein, it was held that the appointment made on compassionate basis cannot be treated to be a temporary appointment as it would otherwise, defeat the very object of such appointment. It is clear from the judgement that it was not a case where the person appointed under the Dying in Harness Rules was not having the requisite minimum qualification prescribed under the Service Rules. It was on account of said reason that the Court held that the appointment could not have been treated to be a temporary appointment. However, the aforesaid judgement would not be applicable to the facts of the instant case, wherein, under the Service Rules, there is a specific stipulation to the effect that a person to be inducted as "member of a service" should have been appointed in accordance with the provisions of the Service Rules. The respondents as per their policy, though granted appointment to the petitioner on temporary basis, required him to pass the prescribed test, failing which his services had been rightly terminated.

20. In a recent judgement in the case of Pankaj Kumar Vishnoi7 their Lordships of the Supreme Court were considering the validity of a circular issued by Inspector General of Police, which required a candidate seeking appointment to the post of Sub-Inspector to qualify a physical endurance test. It was held that such a circular is in consonance with Rule 8(2) of the Dying in Harness Rules, and a candidate who could not pass such test, does not have any vested right to claim appointment on the post of Sub-Inspector. It was observed as under :-

"20. Mr. Mukherjee has submitted that such an order could not have been passed by the appointing authority as it is contrary to the Rules. The aforesaid submission leaves us unimpressed inasmuch as it is for the appointing authority to see that minimum standard of working and efficiency expected of the post is maintained. In I.G. (Karmik)8 this Court while dealing with the employment in the Department of Police has expressed thus: (SCC p.165, para 7)-

"7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion."

20. We have no iota of doubt that the order/letter-circular issued by the Inspector General is in consonance with the Rule 8(2). It does not travel beyond the rule but it acts in furtherance of the rule and there is justification for the same.

21. While considering the nature of appointment on compassionate basis the Supreme Court in the case of State of Rajasthan v. Umrao Singh9 has held that "endless compassion" is not warranted. In the instant case, petitioner was shown enough compassion by being appointed as Lekhpal albeit on temporary basis. He was paid his salary for the post to tide over the immediate financial crisis that had befallen the family, but at the same time, in order to ensure compliance of the Service Rules, he was required to undergo the prescribed training. However, the petitioner abandoned the course mid way and also made a false defence regarding his illness. In view of these facts, the action of the respondents in terminating the services of the petitioner by treating him to be a temporary employee does not suffer from any legal infirmity to warrant interference by this Court.

22. Writ petition lacks merit and is dismissed. No order as to costs.

Order Date :- 11.5.2015

skv

(Manoj Kumar Gupta, J.)