Hari Shankar Awasthi vs State Of U.P. Thru Prin. Secy. ...
2017 Latest Caselaw 7523 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
AFR
 

 
WRIT PETITION NO.4810 (SS) OF 2011
 
Hari Shankar Awasthi                                  .... Petitioner 
 
Versus 
 
State of U.P. and others                              .... Respondents 
 
Hon'ble Dr. Devendra Kumar Arora,J.

Heard Sri R.S. Pawar, learned Counsel for the petitioner and the learned Standing Counsel.

Initially, the petitioner filed the instant writ petition seeking for a direction to consider the claim of the petitioner for appointment on a Group-C post under the provisions of U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974. Thereafter, the petitioner preferred an application for amending the writ petition, which was allowed vide order dated 06.09.2014 and through amendment, the petitioner has challenged the order dated 10.09.2010, whereby the Executive Engineer (Irrigation Department), Sitapur Division, Sarda Canal, Sitapur has rejected the claim of the petitioner for compassionate appointment as Junior Clerk on the ground that the petitioner does not possess the requisite qualification as required, hence Class-IV post was offered.

Submission of learned Counsel for the petitioner is that the father of the petitioner, namely, Azad Kumar, while working in Irrigation Department died on 12.06.2010. After the death of the father, the petitioner, who was intermediate, gave an application on 02.08.2010 to the Executive Engineer,Sharda Canal, Sitapur

Division, for his appointment under U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (in short " Dying in Harness Rules").

According to Learned Counsel for the petitioner, the authority competent to appoint a person on the post of Junior Clerk is Superintending Engineer (opposite party no.2) but the Executive Engineer instead of forwarding the letter to the competent authority declined the claim of the petitioner for compassionate appointment on Class-C post in an arbitrary manner vide order dated 10.09.2010. In other words, the claim of the petitioner for appointment on Group-C has been rejected by the Executive Engineer, who, undoubtedly, is not the appointing authority for appointment on Group-C post. Therefore, the concerned authority has exceeded its jurisdiction while passing the impugned order.

It has further been submitted by the learned Counsel for the petitioner that the petitioner under compelling circumstances and under the pressure of opposite party no.3 has given consent for appointment on a Group-D post and was appointed as Chowkidar vide order dated 01.02.2011. After joining Class-IV post, an application was moved on 07.02.2011 stating therein that the petitioner has wrongly been appointed on Class-D post whereas he possess the requisite qualification for Class-C post. The application of the petitioner was forwarded to the Superintending Engineer and the Superintending Engineer vide letters dated 17.03.2011 and 20.04.2011 was pleased to direct the Executive Engineer to send detailed report. The Executive Engineer had submitted his report on 27.04.2011 mentioning therein that the petitioner had not annexed his Typing Test Certificate, therefore, his case was not considered for Group-C post. The report of the Executive Engineer was served upon the petitioner vide letter dated 11.05.2011 and in reply to the same, the petitioner gave an application on 31.05.2011 stating therein that the Typing Certificate was not demanded by the Executive Engineer (opposite party no.3) otherwise it would have been produced.

Learned Counsel for the petitioner has contended that the denial of Group-C post to the petitioner is contrary to the provisions of Dying in Harness Rules because not only at the time of submitting the application by the petitioner for compassionate appointment but also at the time of giving appointment to the petitioner on Group-D post, the knowledge of the typing was not a mandatory qualification for appointment on a Group-C post. The knowledge of the typing for appointment on Group-C post was introduced vide Xth Amendment Rules, 2014 w.e.f. 17.01.2014. It is also pointed out by the learned Counsel for the petitioner that even after the Xth Amendment Rules, the appointment on a Group-C post cannot be denied for want of knowledge of typing as at the time of consideration of such appointment as per provision of Rules, when an incumbent/candidate is not perfect in typing, he is to be given appointment with a condition that he will get the speed of 25 WPM within a period of one year from the date of such appointment but in the case of the petitioner these provisions are not attracted at all.

Counsel for the petitioner has lastly argued that under the law, the petitioner was to be offered appointment on a Group-C post as per his qualification and the legitimate right cannot be denied in whimsical manner, which is unjust and unreasonable. It is also submitted that the acceptance of a Group-D post under protest would not debar him from his rightful claim of getting appointment on a Group-C post. Learned Counsel also submitted that under Rule-9 of the Subordinate Officers Ministerial Employees (Direct Recruitment) Rules, 1985, the knowledge of typing has not been provided as an essential qualification thus the petitioner did not give any information about his knowledge of typing and first of all, it was the duty of the concerned respondent/authority to inquire about the knowledge of typing from the petitioner before rejecting his application, which they did not do for the reasons best known to them.

In contrast, learned Standing Counsel has submitted that the petitioner has given an application dated 02.08.2010 for appointment under Dying in Harness Rules before opposite party no.3 for Group-C post along with Educational Certificate, Affidavit, Death Certificate of the deceased employee and Succession Certificate. The petitioner did not submit any Typing Certificate and in the absence of Typing Certificate, Executive Engineer informed the petitioner through its letter dated 10.09.2010 that the petitioner is not eligible for appointment on the post of Junior Clerk, as such if the petitioner is willing for appointment on Class-IV post, then he may submit his willingness. Learned Standing Counsel has further submitted that for appointment on the post of Junior Clerk, the qualification of Typing is essential. In response to the letter dated 10.09.2010, the petitioner has submitted its willingness dated 12.09.2010 for appointment on a Class-IV post and accordingly, he was appointed on Class-IV post. It is further submitted that as per Rules, the appointing Authority of Junior Clerk is Superintending Engineer whereas the appointing authority for a Class-IV post is Executive Engineer.

It has further been submitted by the learned Standing Counsel that 1974 Rules have been amended from time to time and by the fifth amendment, it has been provided in Rule 5 that the dependent of the deceased employee is to be given compassionate appointment as per his qualification and since the petitioner was not having the knowledge of typing, he was not given appointment on the post of Junior Clerk.

Learned Standing Counsel has contended that so far as the Government Order dated 17.02.2014 by which Xth Amendment has been made in 1974 Rules is concerned, the said amendment is prospective in nature and not retrospective. Moreover, the petitioner has accepted the offer of appointment on a Class-IV post and is serving since 2011 and as such provisions of Government Order dated 17.02.2014 are not applicable in the case of petitioner.

A perusal of the record shows that the application for compassionate appointment was made on the death of Late Azad Kumar, which was processed by the concerned authority. There is no dispute to the fact that the petitioner was having qualification of Intermediate, which is mandatory for appointment on Group-C post. The appointment on Group-C post to the petitioner has been denied merely on the ground that the petitioner had not annexed the copy of the certificate showing Typing knowledge. The petitioner has vehemently asserted that at no point of time any enquiry was made from him with regard to knowledge of Typing and appointment on Class-IV post was offered without any justification and on whims. The petitioner has also asserted that he joined the Class-IV post under protest and made an application for appointment on Group-C post and the said application was forwarded to the Superintending Engineer (opposite party no.2) who, in turn, vide letter dated 17.03.2011 and 20.04.2011 directed the opposite party no.3 to send a detail report. The Executive Engineer gave a reply vide letter dated 27.04.2011 indicating therein that the petitioner has not annexed any Typing Certificate and thus he was not considered for appointment on Group-C post, and on receipt of the letter dated 11.05.2011, the petitioner gave an application that the Typing Certificate was never demanded by the opposite party no.2 otherwise it would have been produced. There is no letter on record to show that the petitioner was asked to submit Certificate of Typing.

It is not disputed that the petitioner has made application for compassionate appointment in the month of August, 2010 and the appointment letter for Class-IV post was issued on 01.02.2011. On the aforesaid dates, the knowledge of Typing was not provided as the qualification for appointment on Group-C post under the Dying in Harness Rules. Admittedly, the provisions of knowledge of Typing for appointment on Group-C post has been made through Xth Amendment Rules, 2014 which were notified on 17.01.2014. Even under the Xth Amendment Rules, it has been provided that if an incumbent is appointed on such a post where Typing is mandatory requirement and the dependant of the deceased is not perfect in Typing, then such an incumbent shall be given appointment with the condition that he should obtain Typing Speed of 25 minutes in a year. Thus for appointment the necessary qualification is Intermediate or equivalent. Even otherwise, the action of the opposite parties in denying appointment on Class-III post is discriminatory in nature as in a similar matter, the State Government has passed an order dated 21.05.2000 in respect of one Mr. Brijendra Kumar Rawat for appointment on a Class-III post with the condition that he will learn Typing. Similarly, the State Government in the matter of Kumari Anita Singh daughter of late Lal Muni Devi (ANM, District Hardoi) issued letter dated 13.03.2012 for her compassionate appointment on the post of Junior Clerk with the condition that she will obtain Typing knowledge and speed within a year. These two orders have been brought on record by the petitioner through a supplementary affidavit dated 15.01.2017 but no rebuttal have been made by the respondents. The father of the petitioner was working in Irrigation Department which is one of the departments of the State Government and same set of Rules are applicable in all the departments of the State Government.

In Anju Tiwari Vs. District Magistrate, Etawah [(2002) 20 LCD 1079], this Court, while considering the provisions of Dying-in-Harness Rules, 1974 as well as the qualifications for Clerk-Copiest provided under the statutory Rules is only Intermediate, has held that Rule 5(1) clearly entitles a dependent of deceased employee to get suitable employment, if he/she fulfills the educational qualification prescribed for the post and the dependent acquires the entitlement under the Rule 5 to get an appointment according to his/her qualification.

Accordingly, the impugned order passed by the Executive Engineer (Irrigation Department), Sitapur Division, Sharda Canal, Sitapur is hereby quashed and the respondents are directed to pass necessary order for appointment of the petitioner on Group-C post, in accordance with law and the observations made hereinabove, within a period of two months from the date of production of certified copy of this order.

The writ petition stands allowed in above terms.

Order Date :-01.12.2017

akverma