Smt. Mamta Yadav W/O Late Sanjiv ... vs State Of U.P.Thru.Its ...
2019 Latest Caselaw 4688 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										AFR
 
Court No.30/Reserved
 
Case :- SERVICE SINGLE No. - 3985 of 2011
 

 
Petitioner :- Smt. Mamta Yadav W/O Late Sanjiv Kumar Yadav
 
Respondent :- State Of U.P.Thru.Its Prin.Secy.Medical And Health And Ors.
 
Counsel for Petitioner :- Manish Kumar,Lakshman Singh,Vashu Deo Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Sri Vasu Deo Mishra, learned counsel for the petitioner and Sri Pratyush Tripathi, learned Standing Counsel.

2. The petitioner has approached this Court challenging the orders dated 06.03.2009 and 18.05.2011, by which it has been informed that since the petitioner has not been found successful in the typing test therefore she may apply for a Class IV post for appointment under Dying in Harness Rules.

3. Brief facts of the case are that the husband of the petitioner was appointed in the year 1999 on the post of Non-Medical Assistant and was working under the opposite parties. He was kidnapped and non-traceable in the year 2000. Therefore an F.I.R. was lodged on 26.02.2000. Since the husband of the petitioner could not be traced by the police, the petitioner submitted an application for compassionate appointment on 21.03.2003 under the U.P. Recruitment of Dependants of Government Servants, Dying-in-Harness Rules,1974 (hereinafter referred to as the 'Rules 1974'). Thereafter she sent reminder on 10.04.2003. In regard to the persons missing or non-traceable, a government order dated 20.03.1987 was issued by the State Government to the effect that only after 7 years from the date, when a person got missing, such person will be assumed to be dead and the family/dependants of the said persons will become entitled for the pensionary benefits etc. only thereafter. Accordingly, the petitioner was informed that her case could be considered only after 7 years of missing.

4. Therefore the petitioner again applied on 14.09.2007 claiming appointment under Rules 1974 annexing her educational certificates as well as other documents showing that she is post graduate as well as having certificate in hindi typing,which was issued on 20.03.2007. The application was processed and a death certificate of the husband of the petitioner was asked therefore the petitioner approached to the civil court for declaring the death of the husband of the petitioner, which was declared by means of the order dated 03.02.2009 passed in Civil Suit No. 11 of 2008 by the Civil Judge, Senior Division, Hardoi.

5. In the meantime, the educational certificates and other documents of the petitioner demanded by means of the letter dated 13.03.2008, were forwarded by the opposite party no.3 to opposite party no.2 by means of the letter dated 07.02.2009. Thereafter the respondent no.2 directed the respondent no.3 for taking typing test of the petitioner by means of the letter dated 11.02.2009. In pursuance thereof, the petitioner, appeared in the typing test on 26.02.2009 but she could not qualify. Therefore the petitioner moved an application dated 06.04.2009 to afford one more opportunity to the petitioner to appear in the typing test as she is M.A. and having knowledge of the hindi typing. She also stated that she is not inclined for appointment on a Class IV post. In response thereof, the petitioner was given one more chance to appear in the typing test on 02.07.2009 in which also she could not qualify. Therefore the petitioner was asked to submit her consent for appointment on a Class IV post within a month, if she is inclined for the same by means of the letter dated 26.02.2010.

6. Thereafter relying on a Government Order dated 16.04.1991, the petitioner submitted several representations for appointment on the post of Junior Clerk on the ground of being handicapped, relaxing the requirement of typing test. The representation of the petitioner was forwarded by the State government to the Director General,Medical and Health Services for necessary action as per law and the Director General had written to the Chief Medical Officer to seek the consent of the petitioner for Class IV post if she is inclined, as she could not qualify the typing test. Therefore the petitioner approached this Court by means of the present writ petition challenging the letters/orders dated 06.03.2009 and 18.05.2011.

7. Submission of learned counsel for the petitioner is that the petitioner was directed to appear in the typing test and her case for compassioante appointment has been rejected merely on the ground that she could not pass the typing test. Therefore she has been offered appointment on a class IV post while others have been appointed on Class III post with the condition that they would learn the typing test within the time provided in their appointment orders. He further submitted that at the relevant point of time there was no rule for typing test under Dying in Harness Rules. Therefore she could not have been asked to appear in the typing test. In support of his submissions, learned counsel for the petitioner has relied on judgment of this Court in the case of Smt. Anju Tiwari versus District Magistrate/Collector,Etawah; 2002 (20) LCD 1079 and judgment and order dated 01.12.2017 passed in Writ Petition No.4810 (S/S) of 2011; Hari Shanker Awasthi versus State of U.P. and others. He further submitted that the petitioner is entitled for compassionate appointment on a Class III post as per her qualification and eligibility.

8. Per contra, learned Standing Counsel submitted that the petitioner was afforded opportunity to appear in the typing test but she could not qualify the same, as her speed was less than the minimum speed of 25 words per minute. Therefore on the request of the petitioner she was afforded another opportunity in which also she could not qualify. Therefore she has rightly been offered appointment on a Class IV post. He further submitted that the dependent of a deceased employee cannot insist for any particular post of his/her choice and once the petitioner was offered appointment on a Class IV post, she is not entitled for appointment on any other post. Since the petitioner has not joined for such a long period, she is not entitled for appointment on compassionate ground on the basis of the judgments relied by her.

9. I have considered the submission of learned counsel for the parties and perused the material available on records.

10. The husband of the petitioner was working on a post of Non- Medical assistant with the opposite parties since 1999. It appears that he was kidnapped and non-traceable in the year 2000. Therefore the petitioner had applied for appointment on compassionate ground as per the Government Order dated 20.03.1987. Such a person could be presumed to be dead only after seven years and the family/ dependants are entitled for the pensionary benefits etc. only thereafter. Accordingly, after elapse of seven years and declaration of death of the husband of the petitioner by the Civil Court vide order dated 03.02.2009, the application of the petitioner for compassionate appointment was considered and she was directed to appear in the typing test for appointment on a Class III post. The petitioner had appeared in the typing test on 26.02.2009 in which she could not qualify therefore she made a request by means of the representation dated 06.04.2009 for another chance to appear in the typing test which was afforded to her on 02.07.2009 but she could not qualify the typing test therefore the petitioner made representation on 27.03.2010 to the respondents claiming appointment on the basis of the Government Order dated 16.04.1991 on the post of Junior Clerk in District Unnao exempting the petitioner from the typing test on the ground of being handicapped.

11. In view of above, it is apparent that by means of the letter dated 06.03.2009, on the request of the petitioner she was afforded another opportunity to appear in the typing test on 02.07.2009 in which she could not qualify therefore the petitioner preferred a representation claiming exemption from the typing test. Since the petitioner appeared twice in the typing test in which she could not qualify therefore she cannot claim appointment on a particular post and place and parity with others who have been appointed on a Class III post with the condition to obtain the qualification within the period prescribed.

12. The purpose of the compassionate appointment is to give immediate relief to the family in case of death of bread earner of the family on a suitable post except on a post which is within the purview of the U.P. Public Service Commission under Rule 5 of the Rules 1974. The compassionate appointment is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits in case of death of the bread earner of the family.

13. The Hon'ble Apex Court in the case of National Hydroelectric Power Corporation and another versus Nanak Chand and another, AIR 2005 SC 106 has formulated the following principle:

"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises."

14. In the case of Santosh Kumar Dubey versus State of Uttar Pradesh and others; (2009) 6 SCC 481, the Hon'ble Apex Court observed that it cannot be another source of recruitment and it also cannot be treated as a bonaza and also as a right to give an appointment in Government Service. It is only for the family to survive and successfully face and overcome the financial difficulties that they faced on missing of the earning member.

15. The Hon'ble Apex Court in the case of Union of India and another versus Shashank Goswami and another; 2012(3) ESC 392 has held that the compassionate appointment 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. The relevant paragraphs 9 and 10 are reproduced as under:

"9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate grounds is based on the premise that the applicant was dependant on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate ground cannot be claimed as a matter of right.

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 ground 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 ground 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."

Similar view has been taken by the Hon'ble Apex Court in the case of MGB Gramin Bank versus Chakrawarti Singh, AIR 2013 SC 3365.

16. The Hon'ble Apex Court in the case of Director of Education (Secondary) and another versus Pushpendra Kumar and others; (1998) 5 SCC 192 observed that there cannot be insistence for a particular post in matter of compassionate appointment.

17. So far as the judgments relied by learned counsel for the petitioner are concerned, they are not applicable in the present case.

18. In the case of Smt. Anju Tiwari (supra), an additional eligibility was incorporated in the appointment letter apart from the qualification prescribed in the statutory rules. The petitioner therein was appointed on the post of clerk/copyist for which the qualification prescribed was intermediate and there was no requirement of typing test having minimum speed of 25 words per minute. Therefore this Court held that the requirement for having speed of typing with 25 words per minute as incorporated by the District Magistrate in the appointment letter was wholly arbitrary and contrary to the Rules and the petitioner being appointed as dependant of deceased employee cannot be ousted from service on that ground.

19. In the case of Hari Shankar Awasthi versus State of U.P. and others, the petitioner therein was appointed as Chowkidar on Group D post. After joining, he moved an application that he has wrongly been appointed on Group D post, whereas he possessed the requisite qualification for Group C post. His application was rejected on the ground that he does not possess the requisite qualification as required. This Court after considering the Dying-in-Harness Rules held that the petitioner could have been appointed with the condition, as other incumbents were appointed on Class III post with the condition that they would learn typing.

20. In the present case, the petitioner twice appeared in the typing test, the second of which was on her own request, but she could not succeed. Thereafter she moved an application for appointment on the post of Junior clerk claiming relaxation in typing on the ground of being handicapped and specifically denied offer of Class IV post. Therefore it appears that the petitioner was not in urgent need of employment otherwise she could have accepted the same to overcome financial crisis of the family and thereafter could have pursued the matter for her appointment on Class III post if permissible. Therefore it appears that the petitioner wanted the appointment on a particular post on compassionate ground. It has repeatedly been held by this Court as well as by the Hon'ble Apex Court that the appointment on compassionate ground can neither by claimed nor granted as a matter of right and it is not a mode of appointment but an exception. Therefore the petitioner cannot claim any particular post.

21. The Hon'ble Apex Court in the case of Umesh Kumar Nagpal versus State of Haryana and others (1994) 4 SCC 138 held that the consideration for such employment is not a vested right which can be exercised at any time in future.

22. The Hon'ble Supreme Court in the case of State of Jammu and Kashmir and others Versus Sajad Ahmed Mir;(2006) 5 SCC 766 has held that once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say goodbye to the normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution.

23. The petitioner has nowhere pleaded that the petitioner was wrongly called for the typing test and there was no such rule for appointment in the said department without typing test. Rather she has admitted that the typing was essential as she had requested for another chance of type test and claimed parity with the persons who were appointed on compassionate ground with the condition that they would obtain the eligibility within the period prescribed.

24. In view of above, the insistence of the petitioner for a particular post despite being unsuccessful twice is not sustainable. Therefore this Court is of the view that the claim of the petitioner is not sustainable. The writ petition has been filed on mis-conceived and baseless grounds, which lacks merit.

25. The writ petition is accordingly dismissed.

26. No order as to costs.

(Rajnish Kumar,J.)

Order Date :-17.05.2019

Akanksha