Pawan Kumar Singh vs State Of Up Thru. Secy. ...
2018 Latest Caselaw 708 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 
Case :- SERVICE BENCH No. - 14666 of 2018
 
Petitioner :- Pawan Kumar Singh
 
Respondent :- State Of Up Thru. Secy. Agriculture
 
Counsel for Petitioner :- Himanshu Raghave,Amrit Kumar Tiwari
 
Counsel for Respondent :- C.S.C.,N.C.Mehrotra
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Virendra Kumar-II,J.

(1) Heard Mr. Himanshu Raghave, learned Counsel for the petitioner, learned Standing Counsel for opposite party No.1 and Mr. N.C. Mehrotra, learned Counsel for the opposite parties No. 2 to 4-Rajya Krishi Utpadan Mandi Parishad.

(2) The petitioner has approached this Court under Article 226 of the Constitution of India, challenging the order dated 19.6.2017 passed by the Director, Rajya Krishi Utpadan Mandi Parishad, Kisan Mandi Bhawan, Gomti Nagar, Lucknow (opposite party No.2), whereby in pursuance to the judgment and order dated 29.4.2016 passed in writ petition No. 3295 (S/S) of 2009, the representation preferred by the petitioner dated 18.6.2016, seeking compassionate appointment as per his qualification on the post of Assistant Engineer (Electronics) instead of Junior Engineer, was considered and was rejected.

(3) According to the petitioner, while working as Deputy Director (Construction) in the U.P. Rajya Krishi Utpadan Mandi Parishad (hereinafter referred to as the "Mandi Parishad), his father, namely, Late Ram Singh died in harness on 7.11.2006, leaving behind his mother, him, his younger brother and his married sister. According to him, he did his Bachelor of Engineering from M.J.P. Rohilkhand University in Electrical & Electronics Stream in the year 2000, therefore, he moved an application for compassionate appointment under U.P. Recruitment of Dependants of Governments of Government Servants Dying-in-Harness Rules, 1974 on a suitable post i.e. Assistant Engineer in the Mandi Parishad. His claim for compassionate appointment was considered by the Mandi Parishad and vide order dated 20.1.2007, the Additional Director (Administration), Mandi Parishad, issued appointment order appointing him on the post of Junior Engineer.

(4) It has been stated that not being satisfied with his appointment on the post of Junior Engineer, the petitioner gave a representation to the Director of the Mandi Parishad on 27.1.2007, stating therein that he had not been given the due benefit of Rule 5 of the Harness Rules as Rule 5 requires the dependent of a deceased officer/employee to be given a suitable post consistent with his qualification. According to the petitioner, in the said representation, he has given examples of Smt. Sudha Srivastava and Smt. Manju Mishra, whose respective husband were also working on the post of Deputy Director in the Mandi Parishad at the time of their death and these ladies were appointed on the post of ''Marketing Officer' under the Dying-in-Harness Rules, which is a post equivalent to the post of Assistant Director and further one Manoj Kumar Agnihotri was also given appointment on the post of Assistant Engineer under similar circumstances and possessing identical qualifications.

(5) According to the petitioner, in the said representation, the Director of Mandi Parishad has sought comments/report from the Additional Director (Administration) of the Mandi Parishad, who, in his report has stated that the father of the petitioner was the senior most Deputy Director and the instances cited by the petitioner in his representation are true and correct. The Director of the Mandi Parishad, after considering the representation of the petitioner, directed the Assistant Director (Administration) to inform the petitioner that in view of the appointment order dated 20.1.2007, the petitioner be asked to join on the post of Junior Engineer within a week, failing which, an order for cancellation of his appointment would be passed. In pursuance to the direction of the Director of the Mandi Parishad, the Assistant Director (Administration) of the Mandi Parishad, vide letter dated 18.9.2008, informed the petitioner.

(6) It has been stated that on receipt of the aforesaid letter dated 18.9.2008, he has immediately joined on the post of Junior Engineer on 20.9.2008 under protest. Thereafter, the Mandi Parishad published an advertisement dated 27.10.2009, which included two posts of Assistant Engineer (Electronics) in the General Category to which the petitioner belongs. Feeling aggrieved, the petitioner has challenged the advertisement dated 27.10.2009 for one of the vacancies of Assistant Engineer (Electronics) by filing writ petition No. 3295 (SS) of 2009, which was disposed of finally vide judgment and order dated 29.4.2016 with a direction to the authority concerned to examine the claim of the petitioner and decide the same, in accordance with law, expeditiously, say, within a period of three months from the date of receipt of a certified copy of the order.

(7) According to the petitioner, the copy of the judgment and order dated 29.4.2016 was served upon the authority concerned along with application dated 18.6.2016 in the office on 26.8.2016 but as no action was taken by the authority concerned, therefore, he preferred a contempt case, bearing Criminal Misc. Case No. 802 (C) of 2017. Thereafter, the Director of the Mandi Parishad, vide order dated 19.6.2017, rejected the representation of the petitioner.

(8) Hence the instant writ petition.

(9) While challenging the impugned order dated 19.6.2017, learned Counsel for the petitioner has submitted that though the petitioner is fully qualified for the post of Assistant Engineer, therefore, while considering the claim of the petitioner for appointment on a suitable post, the authority of the Mandi Parishad ought to have given him appointment on a suitable post i.e. Assistant Engineer instead of Junior Engineer as has been given earlier by the Mandi Parishad to the dependent of their employees. Thus, the action of the opposite parties in giving appointment to the petitioner on the post of Junior Engineer instead of Assistant Engineer is arbitrary and discriminatory in nature.

(10) Elaborating his submission, learned Counsel for the petitioner has drawn attention towards Rule 5 of the Dying-in-Harness Rules and has submitted that while considering the claim of a person under dying-in-harness rules, the department ought to have given a suitable employment in Government Service which is not within the purview of the State Public Service Commission, if such person fulfills the educational qualification prescribed for the post. But in the present case, though the petitioner is fully qualified for the post of Assistant Engineer but he has arbitrarily been given appointment on the post of Junior Engineer. However, on the threat of the department to cancel his appointment if he did not join on the post of Junior Engineer, the petitioner joined on the post of Junior Engineer under protest. After joining, the petitioner preferred representation for considering his claim for appointment on the post of Assistant Engineer but his representation has been rejected by means of the impugned order on the ground that as he has joined on the post of Junior Engineer, therefore, his claim cannot be considered. This ground of rejection of the claim of the petitioner is arbitrary and illegal.

(11) Per contra, learned Counsel for the Mandi Parishad, while placing reliance upon the judgment of the Apex Court in State of M.P. and others Vs. Ramesh Kumar Sharma : 1994 Supp (3) SCC 661 and State of Rajasthan Vs. Umrao Singh : (1994) 6 SCC 560, has submitted that the petitioner has no right to claim to post him to a particular post of his choice but the petitioner can only claim to be considered for that post. The claim of the petitioner for appointment on compassionate ground was considered by the Mandi Parishad and after considering the suitability and his educational qualification, the Mandi Parishad found that the petitioner be appointed on the post of Junior Engineer, therefore, appointment order was issued, directing the petitioner to join as Junior Engineer in the Mandi Parishad. Thus, there is no illegality or perversity in the action for the Mandi Parishad for issuing appointment order to the petitioner on the post of Junior Engineer. The present writ petition is liable to be dismissed.

(12) We have examined the submission of the learned Counsel for the parties and gone through the record.

(13) The basic question involved in the present case is that if a person, who sought his appointment on compassionate grounds and after due consideration he has been given appointment, whether he can stake his claim against any other post on the ground of his qualification.

(14) Rule 5 of Dying in Harness Rules deals with eligibility criteria and time limit for making application for compassionate appointment of members of family of deceased Government servant. The same is quoted as under:-

"5. Recruitment of a member of the family of the deceased.- (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-

(i) fulfils the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and

(iii) makes the application for employment within five years from the date of the death of the Government servant:

Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.

(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.

(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."

(15) From a plain reading of the provisions of Rule 5 (1) of the Dying-in-Harness Rules, it is clear that in a case Government servant dies in harness after commencement of the said rules and the spouse of deceased government servant is not already employed under Central Government or a State Government or a Corporation owned or controlled by Central Government or a State Government one member of his family, who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by Central Government or State Government, shall be given suitable employment in government service on a post except the post which is within the purview of U.P. Public Service Commission in relaxation of the normal recruitment rules, if such person - (i) fulfills educational qualification prescribed for the purpose; (ii) is otherwise qualified for government service; and (iii) makes the application for employment within five years from the date of death of government servant.

(16) It is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.

(17) In the present case, admittedly, the petitioner was given appointment on the post of Junior Engineer under Rule, 1974 on compassionate ground on 20.1.2007 but instead of joining on the post of Junior Engineer in the Mandi Parishad, he claimed to be appointed him on the post of Assistant Engineer by preferring representation, which was rejected and vide order dated 18.9.2008, the petitioner was directed to join on the post of Junior Engineer. In pursuance to the order dated 18.9.2008, the petitioner joined on the post of Junior Engineer, which according to the petitioner was under protest. After joining, the Mandi Parishad published an advertisement for appointment of various post including the post of Assistant Engineer in the Mandi Parishad. Feeling aggrieved, the petitioner approached this Court by means of writ petition No. 3295 (SS) of 2009, which was disposed of finally vide judgment and order dated 29.4.2016 with a direction to the authority concerned to decide the claim of the petitioner. In compliance thereof, the claim of the petitioner for being appointed on the post of Assistant Engineer instead of Junior Engineer was considered by the Mandi Parishad and the same was rejected vide order dated 19.6.2017.

(18) The stand of the petitioner is that at the relevant time, the post of Assistant Engineer was available in the Mandi Parishad but instead of giving him appointment on the post of Assistant Engineer as has been given earlier to the similarly placed persons, he was threatened to join on the post of Junior Engineer, failing which order for cancellation of his appointment would be passed. In these compelling circumstances, he joined on the post of Junior Engineer with protest. Therefore, his submission is that since he has joined on the post of Junior Engineer under protest, therefore, the plea of the Mandi Parishad that since he has accepted the post of Junior Engineer, as such, he cannot claim higher post, is not sustainable for the reason that the petitioner is fully qualified for the post of Assistant Engineer.

(19) In matters relating to public appointment the State is obligated to give effect to the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India. All appointments, therefore, have to be effected in terms of an open invitation of applications and consideration of the same, strictly in order of merit. Certain exceptions in the nature of compassionate appointment with the sole objective to mitigate the sudden financial hardship, that has fallen upon the family of a bread winner, who dies in harness, would be in the nature of a concession and cannot be asserted as a right.

(20) The record reveals that the impugned order dated 19.6.2017 has been passed in compliance of the order dated 29.4.2016 passed in writ petition No. 3295 (S/S) of 2009. While passing the aforesaid impugned order, the Director, Mandi Parishad has observed that while considering the appointment under the Dying-in-Harness Rules, the two factors which are to be considered are the vacant post and suitability of the applicant. The suitability of the applicant has been judged in the interview and nothing extra ordinary was found. As a matter of fact, in the interview, his knowledge was less than the average Engineering student. It appears that the Mandi Parishad, after perusing the educational qualification of the petitioner and after satisfying while interviewing him that the petitioner is suitable for the post of Junior Engineer, has been given appointment on the post of Junior Engineer. Therefore, we are of the view that the plea of the petitioner that the Mandi Parishad did not consider his educational qualification while denying appointment on the post of Assistant Engineer, is wholly misconceived and untenable. As a matter of fact, the appointing authority has assessed the knowledge of the petitioner for the post claimed by the petitioner.

(21) More so, it is settled law that dependent of deceased has no right to claim particular position or place. Regard may also be had to the judgment of Hon'ble Apex Court in the case of Union of India and another vs. Shashank Goswami and another : (2012) 11 SCC 307, wherein it has clearly been held that an applicant seeking compassionate appointment does have any right to seek appointment against the post of his own choice. Para 10 of the aforesaid judgement in the case of Shashank Goswami (Supra) is extracted hereinbelow:

"10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate grounds is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, the applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate grounds have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."

(22) The Apex Court while examining the issue with respect to compassionate appointment in the case of Sushma Gosain vs. Union of India : 1989 (4) SCC 468, has held that the proceeding to recruit a person on compassionate ground is an exception to general law. It cannot be converted as a mode of regular appointment. The power conferred by the legislature to make appointment on compassionate ground is to give immediate relief to the family of the deceased Government employee and it cannot be substituted as another mode to make regular appointment.

(23) Similar view has been expressed by Hon'ble Supreme Court in the case of State of M.P. and others vs. Ramesh Kumar Sharma : AIR 1994 SC 845, in which it has been held that claimant has no right to any particular post of his choice, he can only claim to be considered for post. Relevant paras of the judgment reads as under:-

"Learned counsel for the appellants has contended that under the instructions in question the respondent is not entitled to a higher post of his choice merely because he fulfils the requisite eligibility qualifications. Learned counsel for the respondent has attempted to defend his case by citing the illustration of another applicant- Rajiv Dwivedi- who, according to him, was appointed in similar circumstances as APP-Grade-II. The facts relating to Rajiv Dwivedi are not on record and it is the mere assertion of the respondent that the circumstances are identical. Even assuming that Rajiv Dwivedi's case was similar to that of the respondent, the applicant has no right to any particular post of his choice, he can only claim to be considered for that post. It would ultimately be for the authority to decide if some common principle was involved in the two cases. If a mistake was committed in an earlier case, that cannot be a ground for directing the State to perpetuate the error for all times to come. Learned counsel for the respondent has not been able to show before us any rule or Government Instructions under which the respondent can claim the post of APP -Grade-II."

(24) This Court in the case of Amit Kumar Singh vs. State of U.P. & others : 2005 (1) UPLBEC 407 had taken a view that a person having once accepted appointment on Class-IV post, cannot subsequently claimed adjustment on Class-III post. The relevant observations at para-4 read as under:-

"Following the decision of the Apex Court in State of Rajasthan v. Umrao Singh 1994 (6) SCC 560, a Division Bench of this Court in the case of Dinesh Chandra Sharma v. District Inspector of Schools, Meerut, (2000) 3 UPLBEC 2522, has held that no person is entitled to claim the benefit of Dying-in-Harness Rules more than once. In the present case, admittedly there was no Class-III post vacant at the time when appointment had been given to the petitioner on a Class-IV post. The petitioner having once accepted such appointment on compassionate ground, cannot now after more than four years claim adjustment on a Class-III post when it later falls vacant. The law does not provide for a person to be given the benefit of compassionate appointment more than once. As such no mandamus can be issued to the respondent authorities directing them to provide employment to the petitioner on a Class-III post when it falls vacant after four years of the petitioner having already availed the benefit of appointment under the Dying-in-Harness Rules. He would be entitled to promotion on such post, in accordance with law, or else if the post is to be filled up by direct recruitment, he can complete with other candidates and seek such appointment if he is otherwise found eligible and entitled for such appointment."

(25) On the basis of aforesaid analysis and the legal position, this Court comes to the conclusion that appointment on compassionate ground is given to tide away the sudden financial crisis which is suffered by the family members on account of death of the sole bread earner. Once such appointment has already been offered to, and accepted by, the dependent of such deceased employee, the purpose of giving such appointment on compassionate ground is achieved. Appointment on compassionate ground cannot be treated as an alternate source of recruitment or employment. Such appointment is provided for a specific purpose which is to give immediate financial relief to the family members of the deceased employee.

(26) We are of the considered opinion that once appointment is offered to a dependent of the deceased employee assessing his suitability and the same is accepted, no future claim for appointment on a particular post or higher post can be raised by the said employee. More so, the provisions of U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness Rules, 1974 does not provide for making claim after acceptance of a particular appointment.

(27) In view of the aforesaid, the writ petition deserves to be dismissed, which is hereby dismissed. Costs easy.

Order Date :- 21.5.2018

Ajit/-

Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Virendra Kumar-II,J.

The writ petition is dismissed vide order

of date passed on separate sheets.

Order Date :- 21.5.2018

Ajit/-