Rajiv Singh Chahar vs State Of U.P. And Others
2018 Latest Caselaw 1865 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - A No. - 51632 of 2006
 

 
Petitioner :- Rajiv Singh Chahar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Shri Prakash Giri,Ashish Mishra
 
Counsel for Respondent :- C.S.C.,N. Misra,Ved Byas Mishra
 
Hon'ble Ajay Bhanot,J.

1. Heard Sri Ashish Mishra, learned counsel for the petitioner and Sri Mani Shanker holding brief of Sri Ved Byas Mishra, learned counsel for the respondent-corporation.

2. The father of the petitioner was working as a driver in the respondent-corporation. He died on 29.11.1999, while in service of the corporation. The petitioner made a representation to the respondent authority for being appointed to any post on compassionate grounds in the respondent-corporation. The petitioner was not granted an appointment on compassionate grounds by the respondents. The petitioner has made the following prayer in this writ petition:

"To issue a writ, order or direction in the nature of mandamus commanding the respondents authorities to appoint the petitioner on appropriate post under dying-in-harness rules."

3. The Government of U.P. took out a Government Order on 22.1.2000 recalling the applicability of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 to various corporations. The government order provided that the government corporations facing financial hardship, would not make appointments on compassionate grounds. The Government Order also provided that the Dying-in-Harness Rules, 1975, would not be applicable to corporations which have instituted proceedings or are facing proceedings registered before the B.I.F.R. The provisions of the said Government Order also applied to all sick Government corporations, irrespective of the fact whether the proceedings involving such corporations were registered under the Sick Industrial Companies Act, 1985 before the B.I.F.R. or not.

4. In pursuance of the Government Order, the Board of Directors passed a resolution on 30.3.2000 resolving that the dying-in-harness rules shall not be applicable to the respondent corporation. The ban on compassionate appointments has since been implemented.

5. In view of the said ban, the petitioner has no right to be appointed in the respondent-corporation under the Dying-in-Harness Rules, 1974. The compassionate appointments can only be made if there are specific provisions or rules providing for such appointments. In the absence of specific rules in this regard, no individual has an enforceable right to claim an appointment on compassionate grounds. In the present case, a deliberate decision has been taken by the respondent corporation not to make appointments on compassionate grounds. The decision has been taken on account of financial sickness of the corporation.

6. The Hon'ble Supreme Court in the case of Himachal Road Transport Corporation Vs. Dinesh Kumar, reported at (1996) 4 SCC  560 sets its face against the appointment of persons on compassionate grounds in the absence of vacancies or availability of posts. The Hon'ble Supreme Court held in para 10 of the said judgement thus:

"10. We are of the view that the Himachal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders dated 27.3.1995 and 6.3.1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. It persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post. We are of the view that directions given by the Administrative Tribunal, in these two appeals, are totally unauthorised and illegal. We are, therefore, constrained to set aside the orders appealed against. We hereby do so and allow the appeals. There shall be no order as to costs."

7. The claim of A. Radhika Thirumalai (Smt.) for appointment of the compassionate grounds was rejected by the Hindustan Aeronautics Ltd. The said applicant was denied appointment on the footing of a ban on fresh recruitment. The matter reached the Hon'ble Supreme Court. The Hon'ble Supreme Court, in Hindustan Aeronautics Ltd. Vs. A.Radhika Thirumalai (Smt.), reported at (1996) 6 SCC 394, invalidated the claim for appointment of the applicant on compassionate grounds on the footing of the policy decision imposing a ban on fresh recruitment. The Hon'ble Supreme Court followed the law laid down in the case of Himachal Road Transport Corporation (supra) and rested its reasoning on the law laid down therein.

8. The action of the respondent-corporation in imposing a ban on compassionate appointments came up for consideration before this Court. There is a consensus in the view of this Court. The ban on making appointments on compassionate grounds has been upheld by this Court.

9. Similar writ petitions in the case of Prem Pal Vs. State of U.P. and others passed in Writ Petition No.54673 of 2005 dated 10.8.2005, in the case of Sunil Dutt Vs. Managing Director (Prabandhak Nideshak) U.P. State Agro Industrial Corporation Ltd. and others passed in Civil Misc. Writ Petition No.71124 of 2005 dated 18.11.2005 and in the case of Hasib Khan Vs. State of U.P. and others passed in Civil Misc. Writ Petition No.46231 of 2003 dated 16.10.2003 wherein the petitioners had claimed appointment under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. The claims were rejected by this Court in the respondent corporation. The claims of the petitioners were on the foot of the resolution of the Board of Directors dated 30.3.2000.

10. The case of the petitioner is squarely covered in the case of Sunil Dutt (supra) by the judgment. The relevant extract of the judgment is reproduced hereunder:

"The father of the petitioner died in harness on 27.2.2000. The mother of the petitioner had made a representation for compassionate appointment of the petitioner under the dying-in-harness rules before the respondents. Later on, it was informed by the Regional Manager, Head Quarter that ban had been imposed on compassionate appointment since 30.3.2000 hence, he cannot be appointed.

The contention of the counsel for the petitioner is that after 30.3.2000 the petitioner has submitted several representations but he has not received any reply and it is not known whether the ban on compassionate appointment has been removed or not.

Sri Ved Byas Mishra, learned counsel appearing for the respondents submits that in similar circumstances the Writ Petition No.54673 of 2005, Prem Pal Vs. State of U.P. and others was filed which was dismissed vide judgment dated 10.8.2005 by His Lordship Hon'ble Vineet Saran, J. In the aforesaid judgment it has been held that the provisions of U.P. Dying-in-Harness Rules, 1974 would not be applicable to the employees of the U.P. State Agro Industrial Corporation Ltd. as has been resolved by the Board of Directors of the Corporation in its meeting dated 30.3.2000. The petitioner is an also an employee of the aforesaid corporation and he has already been informed that his case has not been considered as ban has been imposed on compassionate appointment. Sri Mishra, learned counsel for the respondents further submits that the facts of this case are covered by the judgment dated 10.8.2005 in Writ Petition No.54673 of 2005, Prem Pal Vs. State of U.P. and others and this petition may be dismissed following the aforesaid judgment.

Following the case of Prem Pal (supra), the writ petition is accordingly dismissed."

11. Learned counsel for the petitioner submits that the ban is liable to be lifted since concerned unit of the respondent corporation has made profits for some years.

12. The proposition is misconceived. Merely because one unit or for that matter all units of the corporation have made profits over a couple of years does not mean that the corporation as an entity has ceased to be sick. The analysis of the financial health of a corporation cannot be made on the basis of balance-sheet of a couple of years. It is a highly superficial way of examining the issue. The financial health or sickness of any corporation can only be investigated by an expert body. Simply because the annual balance-sheet of one unit is not in the red, it cannot be deduced that the corporation is no longer sick. A more holistic and a comprehensive study of the total worth of assets, liabilities, loans and debts of the corporation would have to be made by experts in the field. The argument made is too simplistic to be accepted. Moreover, the pleadings and the data in support of such arguments are wholly inadequate to justify the conclusion that the corporation has ceased to be sick.

13. From the material in the record, it appears that the corporation continues to be a sick undertaking and is covered by the Government Order 22.1.2000. The board resolution dated 30.3.2000 is still operative. The board resolution dated 30.3.2000 is a policy decision which rests on sound reasoning and relevant criteria. The resolution is not arbitrary, but rather in public interest. No challenge has been made to the board resolution in the writ petition. The policy imposing the ban on compassionate grounds in the respondent-corporation is valid and continues to hold the field.

14. Ban on compassionate appointments is a matter of policy. Courts do not readily tread into the field of policy or interfere in policy decisions. Particularly, as in the instant case where the policy not arbitrary and has in fact been made to serve public interest.

15. The Hon'ble Supreme Court emphasized the reluctance of the courts of entry into the merits of policy decisions and drew the red-lines in regard to the scope of judicial review in the case of Centre for Public Interest Litigation Vs. Union of India (UOI) and Ors., reported at (2016)6 SCC 408. The scope of judicial in examining the policy decisions was defined by the Hon'ble Supreme Court in the Centre Interest Litigation (supra) in the following terms:

20. Minimal interference is called for by the Courts, in exercise of judicial review of a Government policy when the said policy is the outcome of deliberations of the technical experts in the fields inasmuch as Courts are not well-equipped to fathom into such domain which is left to the discretion of the execution. It was beautifully explained by the Court in Narmada Bachao Andolan v. Union of India MANU/SC/0640/2000 : (2000) 10 SCC 664 and reiterated in Federation of Railway Officers Assn. v. Union of India MANU/SC/0231/2003 : (2003) 4 SCC 289 in the following words:

12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters.

16. The categorization of the respondent-corporation as a sick industry is also in the nature of an economic policy decision. The policy decision was taken upon advice of experts in the field. This Court does not have the expertise or the jurisdiction to substitute the judgement of the experts by a judicial fiat, in the facts of the case. The Hon'ble Court in Centre for Public Interest Litigation (supra) reduced the latitude of the courts in interfering with the matter of economic policy by holding thus:

22. When it comes to the judicial review of economic policy, the Courts are more conservative as such economic policies are generally formulated by experts. Way back in the year 1978, a Bench of seven Judges of this Court in Prag Ice and Oil Mills v. Union of India and Nav Bharat Oil Mills v. Union of India MANU/SC/0493/1978 : (1978) 3 SCC 459 : AIR 1978 SC 1296 : 1978 Cri LJ 1281 carved out this principle in the following terms:

We have listened to long arguments directed at showing us that producers and sellers of oil in various parts of the country will suffer so that they would give up producing or dealing in mustard oil. It was urged that this would, quite naturally, have its repercussions on consumers for whom mustard oil will become even more scarce than ever ultimately. We do not think that it is the function of this Court or of any court to sit in judgment over such matters of economic policy as must necessarily be left to the government of the day to decide. Many of them, as a measure of price fixation must necessarily be, are matters of prediction of ultimate results on which even experts can seriously err and doubtlessly differ. Courts can certainly not be expected to decide them without even the aid of experts.

17. In view of the above, the writ petition is dismissed.

Order Date :- 7.8.2018

Ashish Tripathi