Allahabad High Court
Mohd. Shahanewaj vs U.P. State Road Transport ... on 4 January, 2021
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- SERVICE SINGLE No. - 25801 of 2020
Petitioner :- Mohd. Shahanewaj
Respondent :- U.P. State Road Transport Corp.Lucknow Through M.D. And Anr.
Counsel for Petitioner :- Dinesh Prakash Tripathi
Counsel for Respondent :- Ambika Prasad
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner and Sri Ambika Prasad learned counsel for opposite parties.
Petition has been filed against order dated 5th June, 2020 whereby petitioner's representation for compassionate appointment under The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 has been rejected on the ground that petitioner although being eligible for appointment on Class IV post, he can not be given such appointment in view of the ban imposed by the State Government upon fresh recruitment.
It is noticeable that the petitioner's father, Mohd Riyaz passed away on 11th October, 2011 while in service. Pursuant thereto, the petitioner had given his application for compassionate appointment on 2nd September, 2016 along with no objections of his mother and unmarried minor sisters whereupon, the Assistant Regional Manger (Personnel) of the Corporation had required original documents of petitioner for verification purposes. When no further proceedings took place, petitioner filed writ petition No. 36676 (S/S) of 2018 which was disposed of by means of order dated 18th December, 2018 directing the opposite parties to take a reasoned decision with regard to same.
Apparently no further decision was taken by the opposite parties whereupon petitioner filed another writ petition No. 8699 (S/S) of 2019 which was also disposed of by means of order dated 21st January, 2020 again issuing a direction to the opposite parties to consider and decide his representation regarding compassionate appointment. In pursuance to the same, the impugned order has been passed merely indicating the ban imposed by the State Government upon fresh recruitment in Class IV post.
Learned counsel for petitioner submits that although the date of imposition of any such ban has not been indicated in the impugned order but has drawn attention to the Government Order dated 25th July, 2018 in which it has been indicated that such a ban was imposed on 11th July, 2003. It has been submitted that the right of petitioner to be considered for appointment under the Rules of 1974 are statutory in nature and can not be modified or the operation of same blocked by means of an executive order. In the alternative it has been submitted even otherwise the ban order having been imposed in the year 2003 can not continue interminably without any restriction on the time period of its operation and therefore would not be applicable in case of petitioner after 13 years. Attention has also been drawn to judgment and order dated Ist October, 2015 passed by this court in Writ A No. 22067 of 2009 (Anuj Kumar versus State of U.P. and others) in which this court after considering the said ban on appointments has stated as follows:-
"More importantly, this Court finds that though various details of compassionate appointments made by it during the period 2003 to 2008 were brought on record by the petitioner in terms of the Affidavit dated 21 July 2014, they have not been disputed by the respondents. This Court is therefore constrained to record that the action of the Corporation has been arbitrary and in breach of the principles enshrined in Article 14 of the Constitution of India."
Learned counsel appearing on behalf of the opposite parties does not dispute the fact as culled out from the impugned order, that the petitioner is eligible for appointment on Class IV post but submits that in view of the ban imposed by the State Government upon fresh appointments, the Corporation is bound to follow the same.
Upon consideration of material on record and submissions advanced by learned counsel for parties, it is apparent even from a bare perusal of the impugned order that petitioner is eligible for appointment on Class IV post but could not be granted appointment only on account of the aforesaid ban imposed by the State Government. It is settled law that statutory provisions can not be overridden or their operation modified or whittled down by executive instructions. As such such a ban on compassionate appointments without any amendment in the statutory rules would not be of any consequence. Even otherwise as has been noticed by this court in the case of Anuj Kumar (supra) that compassionate appointments have been made during the period 2003 to 2008 and as such denial of consideration for appointment to persons such as the petitioner is clearly arbitrary and against the principles enshrined in Article 14 of the Constitution of India.
In view of the aforesaid, the reasoning indicated in the impugned order for denying compassionate appointment to petitioner is against the settled provisions of law and is therefore unsustainable.
Consequently, the writ petition stands allowed at the admission stage itself by issuing a writ in the nature of certiorari quashing the impugned order dated 5th June, 2020. Further a writ in the nature of Mandamus is issued directing the opposite party No.2 i.e. Regional Manager, U.P. State Road Transport Corporation, Lucknow Region, Lucknow to pass fresh orders with regard to consideration of petitioner's case for compassionate appointment ignoring any such ban imposed by the State Government for compassionate appointment in the corporation. Reconsideration shall be made by means of reasoned and speaking order within a period of six week from the date a copy of this order is produced before the said authority.
Order Date :- 4.1.2021
prabhat
