Ajay Kumar vs State Of U.P. And Others
2017 Latest Caselaw 2187 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 891 of 2011
 

 
Appellant :- Ajay Kumar
 
Respondent :- State Of U.P. and Others
 
Counsel for Appellant :- Shailendra Kr. Singh, A.K.Srivastava, Kamlesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 
And
 
Case :- SPECIAL APPEAL No. - 243 of 2010
 

 
Appellant :- Neeraj Bahuguna
 
Respondent :- State Of U.P. Through Secretary, Home (Police Section) & Ors
 
Counsel for Appellant :- Siddharth Khare, Ashok Khare
 
Counsel for Respondent :- C.S.C.
 
And
 
Case :- SPECIAL APPEAL No. - 544 of 2010
 

 
Appellant :- Suresh Singh
 
Respondent :- State Of U.P. Through Secretary, Home And Others
 
Counsel for Appellant :- Ashutosh Upadhyay
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Tarun Agarwala, J.

Hon'ble Ashok Kumar,J.

(Per : Ashok Kumar, J.)

We have heard Sri A.K. Srivastava, Advocate, Sri Siddharth Khare, Advocate and Sri Ashutosh Upadhyay, Advocate for the appellants as well as learned Standing counsel for the respondents.

Since common questions of law are involved in the above mentioned special appeals, the same are being decided collectively and for facility Special Appeal No. 891 of 2011 is being treated as the leading case.

Special Appeal No. 891 of 2011 has been filed under Chapter VIII Rule 5 of the High Court Rules by Ajay Kumar in which he has challenged the order dated 6.4.2011 passed by the learned Single Judge in Civil Misc. Writ Petition No. 20104 of 2011 (Ajay Kumar vs. State of U.P. and 4 others).

Special Appeal No. 243 of 2010 has been filed by Neeraj Bahuguna in which he has challenged the order dated 4.2.2010 passed by learned Single Judge in Civil Misc. Writ Petition No. 6020 of 2010 (Neeraj Bahuguna vs. State) and Special Appeal No. 544 of 2010 has been filed by Suresh Singh in which the appellant has challenged the order dated 17.3.2010 passed by learned Single Judge in Civil Misc. Writ Petition No. 12095 of 2010.

Since the facts of all the three cases/appeals are similar, therefore, while deciding these appeals, the facts of W.P. No. 891 of 2011 are being considered and are being mentioned hereinbelow.

The dispute that has impelled the petitioner to be before this Court is, that the petitioners has prayed for an appointment on the post of Constable in the department of U.P. Police under the Dying-in-Harness Rules. The petitioner Ajay Kumar has challenged the orders dated 12.1.2011 and 21.2.2011 passed by the Deputy Inspector General of Police (Establishment), Police Headquarter, Allahabad and Senior Superintendent of Police, Bulandshahar respectively. The petitioner has prayed for issuance of a mandamus commanding the respondents to give compassionate appointment to the petitioner on the post of Constable in the department of U.P. Police.

Brief facts of the case is, that the father of the petitioner Ajay Kumar was working as a Constable at Police Station Kasna, District Bulandshahar and died in harness on 14.6.2004, while in service. The mother of the petitioner moved an application as well as an affidavit dated 12.7.2004 for compassionate appointment of the petitioner in place of her late husband on the post of Constable.

The petitioner also filed an affidavit dated 13.8.2004 for compassionate appointment on the post of Constable in place of his late father before the opposite party no.2, the Deputy Inspector General of Police (Establishment), Police Headquarter, Allahabad.

At the time of filing the said application/affidavit the petitioner's educational qualification was High School and thus was eligible for an appointment on the post of Constable. In this background, his physical verification was done by the Reserve Inspector Police Lines, Bulandshahar in which the petitioner/appellant was found physically fit.

It is asserted in the writ petition by the petitioner that though the application was filed along with requisite affidavit in the year 2004 and the petitioner/appellant was found physically fit but without any reasons the respondent no.3 kept mum and did not process the application and belatedly forwarded the application of the petitioner before the Deputy Inspector General of Police (Establishment), Police Headquarter, Allahabad vide his letter dated 23.3.2009.

In turn, the respondent no.2 passed an order dated 12.1.2011 virtually rejecting the claim of the petitioner for compassionate appointment on the post of Constable on the ground that the petitioner does not have the qualification of Intermediate and consequently, asked the respondent no.3 to send the proposal for appointment of the petitioner on Group 'D' post.

In pursuance of the said order dated 12.1.2011 issued by the Deputy Inspector General of Police (Establishment), Police Headquarter, Allahabad to the Senior Superintendent of Police, Bulandshahar, the S.S.P., Bulandshahar has passed an order dated 21.2.2011 directing the petitioner to submit his application for Group 'D' post.

Aggrieved by the said orders passed by the Deputy Inspector General of Police (Establishment), Police Headquarter, Allahabad and Senior Superintendent of Police, Bulandshahar, the petitioner filed the Writ Petition No. 20104 of 2011 challenging the said orders before this Court. The grounds taken by the petitioner in his writ petition was that prior to 2.12.2008 the Rules of 2000 was applicable for the appointment on the post of Constable in which the minimum qualification for the post of Civil Police Constable was High School. Relying on the aforesaid Rules the petitioner has claimed that he was fully qualified to be appointed on the post of Constable but due to delay on the part of the respondents keeping the application/affidavit intact for a period of about five years altogether the petitioner has been debarred to take the advantage of the existing Rules which were applicable at the time when the petitioner had moved the application for appointment on compassionate ground.

According to the petitioner before issuance of the notification dated 2.12.2008 the minimum educational qualification for the post of Constable was High School whereas the same has been changed after the introduction of the notification dated 2.12.2008 which provides the qualification of a candidate being Intermediate instead of High School.

The petitioner has therefore claimed that since he had moved his application much before the issuance of notification dated 2.12.2008, as such the said notification is not applicable in the case of petitioner and therefore, the petitioner is entitled for compassionate appointment on the post of Constable.

Learned Single Judge decided the writ petition vide order dated 6.4.2011 whereby the learned Single Judge has held that once Rules in question have been amended and specific qualification has been provided for being recruited as Constable is Intermediate, in such a situation the petitioner who is claiming compassionate appointment cannot claim it as matter of right that he should be offered appointment on the post of Constable as per the old qualifications.

The learned Single Judge has considered the judgment of the Hon'ble Apex court in State Bank of India and another vs. Raj Kumar (Civil Appeal No. 1641 of 2010 arising out of S.L.P. (C) No. 28370 of 2008, in which the Apex Court has taken the view that ground of compassionate appointment has to be considered as per relevant rules which covers and holds the field at the relevant point of time when the claim is to be considered.

Following the aforesaid decision the learned Single Judge has dismissed the writ petition filed by the petitioner vide order dated 6.4.2011.

Aggrieved by the said order passed in the writ petition the special appeal No. 891 of 2011 has been filed before this Court and by means of the special appeal the appellant has taken the following grounds :

"II Because, prior to 2/12/2008 the Rules of 2000 was applicable for appointment on the post of Constable was High School. In pursuance of the aforesaid Rules the Appellant is fully qualified to be appointed on the post of Constable, but the respondents delayed the matter and ow they are not considering the claim of the appellant for his appointment on the post of Constable in view of notification dated 2/12/2008 according to which the minimum educational qualification for the post of Constable had been changed as Intermediate instead of High School, which is not applicable in the present case, but the Hon'ble Single Judge had not considered this aspect of the matter while passed the impugned order.

III. Because, the father of the appellant died on 14.6.2004 and application for compassionate appointment of the appellant was moved on 12/7/2004, which is much before the notification dated 2/12/2008 as such notification dated 2/12/2008 is not applicable in the case of the appellant and appellant having the qualification of High School is entitle for compassionate appointment on the post of Constable, but the Hon'ble Single Judge had not considered this aspect of the matter while passed the impugned order.

IV. Because, at the time of death of the father of the appellant and when the application for the compassionate appointment of the appellant was moved the Rules of 2000 was very much applicable and was in forced where by the educational qualification for the post of Constable was High School and the appellant being passed High School is entitle for the compassionate appointment for the post of Constable, but the Hon'ble Single Judge had not considered this aspect of the matter while passed the impugned order.

V. Because, the respondent no.3 by his letter dated 23/3/2009 had sent proposal for the compassionate appointment of the appellant on the post of Constable in accordance with law, which is liable to be accepted by the respondent no.2, but by the impugned order the respondent no.2 illegally rejected the claim of compassionate appointment of the appellant on the post of Constable, but the Hon'ble Single Judge had not considered this aspect of the matter while passed the impugned order."

Similarly, in Special Appeal No. 243 of 2010 (Neeraj Bahuguna vs. State) the appellant has taken following grounds :

"1. Because it is settled legal position that the qualificatios existing at the time of application are the qualifications on the basis of which the selection/consideration is to be finalized. A subsequent alteration of the qualification by amendment of the rules does not effect the pending application.

2. Because the petitioner/appellant was fully qualified for the post of constable at the time of his application as also in the year 2007 when the Inspector-General, P.A.C. Western Zone passed orders in favour of the petitioner/appellant. A subsequent amendment to the qualifications in December 2008 does not effect the consideration of the application of the petitioner/appellant.

3. Because from Octorber 2007 the application for compassionate appointment of the petitioner/appellant was kept pending by the respondent authorities without any justification and the petitioner/appellant cannot be denied any appointment on account of any alteration in th subsequent educational qualification during the pendency of such consideration.

4. Because the judgments cited before the learned single judge have not been accorded consideration nor the arguments raised fully dealt with as is apparent from a perusal of the judgment itself."

Similarly, in Special Appeal No. 544 of 2010 (Suresh Singh vs. State) the appellant has taken following grounds :

"1. Because, the learned single judgment had not considered the legal aspect that the impugned order has been passed by the concerned authority without applying the mind in a routine manner and the order has been passed without entering into merit by the learned single judge.

2. Because, the learned single judgment did not properly considered of the argument of the appellant advanced which is based on violation of fundamental rights guaranteed by the Constitution of India under Article 14 and 21.

3. Because, it is settled legal position that the qualifications existing at the time of application are the qualifications on the basis of which the selection/consideration is to be finalized. A subsequent alteration of the qualification by amendment of the rules does not effect the pending application.

4. Because, the petitioner/appellant was fully qualified for the post of constable at the time of his application as also in the year 2007 when the Superintendent of Police, Rampur passed order in favour of the petitioner/appellant. A subsequent amendment to the qualification in December 2008 does not effect the consideration of the application of the petitioner/appellant.

5. Because, from September 2007 the application for compassionate appointment of the petitioner/appellant was kept pending by the respondent authorities without any justification and the petitioner/appellant cannot be denied any appointment on account of any alteration in the subsequent educational qualification during the pendency of such consideration.

6. Because, the judgments cited before the learned single judge have not been accorded consideration nor the arguments raised fully dealt with as is apparent from a perusal of the judgment itself.

7. Because, the learned single judge illegally and wrongly confirmed the impugned order passed by the respondents which is not sustainable in the eye o law, therefore liable to be set aside by this Hon'ble Court.

8. Because, in fact the State of Uttar Pradesh has framed U.P. Civil Police Constable and Head Constable Service Rules-2008 and as per the said Rules 2008 now the qualification of Intermediate has been made the requisite qualification for appointment on the post of Constable. The said Rules 2008 have come in force with prospective effect and not with retrospective effect. In fact the petitioner had become eligible to be appointed on the post of Constable in the year 2007 and he had also submitted his application on 6.9.2007 but the appointment of the petitioner has been delayed due to lapses on the part of the respondents. Therefore, the petitioner cannot be made to suffer only due to lapses on the part of the respondents."

We have heard the learned counsel for the parties and have perused the impugned judgments passed by the learned Single Judge.

Learned counsel for the appellant submitted that the order of the learned Single Judge is not correct for the reasons that the petitioner has submitted the application well in time and when the application has been filed by the petitioner the qualification for the post of Constable on compassionate appointment was High School. Learned counsel for the appellant also submitted that the judgment which has been relied upon by the learned Single Judge is not applicable whereas there are series of judgments of this Court as well as of the Hon'ble Apex court in which the Hon'ble Courts have been pleased to hold that the Rules prevailing at the time of submission of the application would be applicable and not the amended Rules. It was further submitted that the procedure laid down in the Rules of 2008 would not be applicable in the present case of the petitioner as the Rules prevailing on the date of death of the father of the petitioner and on the date of submission of application would be applicable and not the fresh (New) rules which have come into force much later.

On inquiry made by the Court about the prevailing Rules and Regulations for appointment on the compassionate ground, learned counsel for the appellant submitted that before 1998, the Regulation 415 of Police Regulations provided the method of recruitment which included the qualification, etc. Regulation 415 provides that the minimum physical qualification for selection of a candidate as also the educational qualification for a candidate must have passed VIIIth class examination (Junior High School) or an equivalent examination as recognized by the government for recruitment to the posts and services under the Government and Armed Forces. For facility Regulation 415 of police regulations, is quoted hereinbelow :

"All recruits must possess the minimum physical qualifications, be medically fit and of good character. In selecting candidates for enlistment, Superintendents of Police will accept those who are considered to be most suitable for Police Service. For the Civil Police, the candidate must have passed VIII class examination (Junior High School) or an equivalent examination recognised by Government for recruitment to the posts and services under Government and for the Armed Police the candidate must have passed VI class examination or an equivalent examination recognised by Government. For both Civil and Armed Police, the candidates must also possess a working knowledge of Hindi.

Any person including one of Nepalese origin, who is a citizen of India, shall be eligible for recruitment to the services and posts under the rule-making control of Governor. Provided that in the case of a person of Nepalese origin the orders of Inspector-General of Police must first be obtained before such a person is considered for recruitment. When reporting cases to the Inspector-General of Police full details duly verified as to caste, residence, etc. must be intimated along with reasons for recommending the case.

Note- This revised sub-paragraph shall be deemed to have come into effect from March 21, 1959.

Full publicity as regards the time and place of selection and the qualifications required should be given through tahsils Schools, Colleges, Panchayats, etc. before recruitment is started by the Superintendent of Police."

Learned counsel for the appellant submitted that till 1998 the selection of the candidate for police constable was done/based on the basis of Regulation 415 whereas in 1998 the educational qualification for selection of a constable has been raised from 8th standard to High School. In this regard the counsel for the appellant has placed reliance upon the notification dated 11.6.1998. The relevant extract of clause 7 of the said notification is quoted hereinabove.

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According to the counsels for the appellants the new Rules which came into force w.e.f. 2.12.2008 being U.P. (Civil Police) Constable and Head Constable Service Rules 2008 are not applicable in the instant cases. Part III of the aforesaid Rules 2008 provides the procedure for recruitment for various categories of posts in the service and clause 1 Item 5 provides the procedure for recruitment for a Constable.

Item no.8 of the aforesaid Rules 2008 provides the academic qualification. For the ready reference the aforesaid item no. 8 is quoted hereinbelow :

"8. Academic qualifications. - A candidate for direct recruitment to the post of constable must posses the qualification of 12th standard by a Board established by law in India or a qualification recognized by the Government as equivalent thereto."

The counsel for the appellant has submitted that once Rules 2008 had come into force on 2.12.2008 then the entire claim has to be processed before introduction of Rules 2008. In so far as the cases of the present appellants are concerned, the counsel for the appellant has placed reliance of the judgment of Hon'ble Supreme Court rendered in the Case of State Bank of India vs. Jaspal 2007 (9) SCC 571, Vijaya Ukarda Athor (Athawale) vs. State of Maharastra and others 2015 (3) SCC 399 and Canara Bank and another vs. M. Mahesh Kumar 2015(7) SCC 412. Counsel for the appellant has submitted that in the aforesaid cases the Hon'ble Apex Court has held that the compassionate appointment has to be made in accordance with law as per the existing scheme.

On the other hand, learned Standing counsel has submitted that since the application of the appellant has been considered by the appropriate authority when the new scheme has been introduced the same has rightly been considered in view of the new scheme introduced, therefore, the learned Single Judge has rightly proceeded in dismissing the writ petition. Counsel for the State has submitted that grant of compassionate appointment has to be considered as per relevant rules existing on the date of decision of the application filed by the applicant. The counsel for the opposite parties has strongly supported the judgment of the learned Single Judge.

We have considered the submissions of the respective parties and have perused the judgments which are being relied upon by the learned counsel for the appellant. In our view, the facts of the present case are similar to the facts of the judgments which are being relied by the counsel for the appellant. Therefore, in the totality of the facts of the cases and law laid down by the Supreme Court in the case of State Bank of India vs. Jaspal Kaur, Vijaya Ukarda Athor (Athawale) vs. State of Maharashtra and Canara Bank vs. M. Mahesh Kumar the same are squarely applicable. Since the application of the appellant was filed immediately after the death of the employee/father and much before the introduction of New Rules 2008, the existing Rules and Regulations which were admittedly applicable at the time when the application had been moved for compassionate appointment would be applicable. The decision of the learned Single Judge thus cannot be sustained, as such is liable to be set aside.

The question that calls for consideration is as to whether the petitioner/appellant is entitled to be considered under the old scheme or new Rules 2008. It is trite that the compassionate appointment is made to provide succour to the family who is living in penury. The object of offering the compassionate appointment is to provide a job to a family which has lost his bread earner as such the appointment is always made in relaxation of the existing rules. Such appointment is offered out of pure humanitarian consideration with a view that unless some source of livelihood is not provided immediately the family would suffer financial hardship.

In the present matter as we have already discussed in the earlier part of the judgment that the petitioner's/ appellants claim for compassionate appointment was processed in accordance with law and had been forwarded to the police headquarter/respondent no.2 well in time much before the date of issuance of the new Rules i.e. 2.12.2008. In such circumstances, we are of the considered opinion that the rightful claim of the petitioner could not be rejected. There was no occasion to reject the petitioner's/appellant's application for compassionate appointment. It is further relevant to mention here that the facts of the present case of the appellant are similar to the facts of the cases which are being relied upon by the counsel for the appellant.

Having regard to the facts and circumstances of the case, the orders of the learned Single Judge which are under challenge in the present special appeals are quashed. The appeals are allowed. The writ petition is also allowed. The matter is remitted to the authority to pass a fresh order after due consideration of the directions given hereinabove within three months from the date of production of a certified copy of this order.

In the circumstances of the case, parties shall bear their own costs.

Order Date :- 11.07.2017

S.S.

.

(Ashok Kumar, J.)         (Tarun Agarwala, J.)