Durgesh Srivastava vs State Of U.P.Thru.Prin.Secy. ...
2021 Latest Caselaw 8477 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 7
 
Case :- SERVICE SINGLE No. - 6747 of 2021
 
Petitioner :- Durgesh Srivastava
 
Respondent :- State Of U.P.Thru.Prin.Secy. Election & Ors.
 
Counsel for Petitioner :- Raj Kumar Upadhyaya (R.K.
 
Counsel for Respondent :- C.S.C.,Kaushlendra Yadav
 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri R.K. Upadhyaya, learned counsel for the petitioner and learned Standing Counsel for the State.

2. The question for consideration is that as to whether the compassionate appointment can be provided subject to the fulfillment of any condition to be completed in future failing which that appointment would be cancelled. To be more precise, as to whether the nature of compassionate appointment can be uncertain or temporary or it should have permanent character.

3. The brief facts of the case are that the father of the petitioner died in harness on 15.11.2017 while working on the post of Senior Assistant in the office of District Election Officer, Barabanki. After his death the petitioner was appointed on the post of Junior Assistant on compassionate basis on 02.05.2018 under the provisions of Dying-in-Harness Rule, 1974. He submitted his joining on such post on 17.09.2018.

4. In the aforesaid appointment order the petitioner was required to submit CCC certificate from DOEACC Society in Computer Operation within a year or any certificate from recognized, equivalent society along with 25 W.P.M. typing speed. The petitioner submitted CCC certificate on 12.02.2020 obtained from National Institute of Electronics and Information Technology (NIELIT).

5. Precisely, the grievance of the petitioner is that he was provided appointment on compassionate ground in the respondent department and said appointment was conditional to the effect that in case the petitioner completes the course of CCC certificate and acquires typing speed of 25 W.P.M., his appointment shall continue. As per impugned order, the petitioner could not obtain the required typing speed i.e. 25 W.P.M., therefore, his services have been terminated.

6. The case set up by the learned counsel for the petitioner challenging the impugned order on the premise that the appointment under Dying-in-Harness Rule is of permanent nature, inasmuch as, such appointment is provided to an employee whose bread earner has died in-harness and during the distress and difficulties of the family one eligible person of the family member is given appointment under the Dying-in-Harness Rule so that family of the deceased employee could survive. Therefore, if any appointment is provided to any person which is dependent upon any technical condition and if such condition does not fulfill the said appointment is cancelled, then the very purpose of providing appointment under Dying-in-Harness Rule would frustrate. Learned counsel for the petitioner has further explained the reason as to why the petitioner could not achieve such required speed but that explanation cannot be looked into at this stage being factual aspect but it can be seen as to whether the appointment under Dying-in-Harness Rule has been provided in the letter and spirit of the particular rule. The petitioner has categorically stated in para 12 of the writ petition that after the death of the bread earner of the family the entire family is in distress and they are facing lot of problems. In this para the reason of not obtaining the speed has been indicated. Learned counsel for the petitioner has further submitted that if the petitioner was not capable of discharging the duties of Junior Assistant in the District Election Office, Fatehpur as had been provided to him under Dying-in-Harness Rule any other appropriate appointment could have been provided to the petitioner which is of permanent nature.

7. Learned Standing Counsel has referred to the contents of various paragraphs of counter affidavit by submitting that since the petitioner could not achieve the required speed of typing which was mandatory for the post of Junior Assistant, therefore, his appointment has rightly been cancelled. The entire counter affidavit is based on the very fact that whatever was the required and mandatory conditions for holding any particular post, that condition must be fulfilled by the employee.

8. Heard learned counsels for the respective parties and perused the material available on record.

9. At the outset, I am in agreement with the contentions of opposite party that the required condition for appropriate post should be fulfilled by the candidate holding such post and there cannot be any compromise. This Court may not relax such condition, inasmuch as, this is a domain of concerning authority to fix mandatory condition for particular post. Therefore, I do not interfere the impugned order dated 22.9.2021 (Annexure No.1) as far as it provides that on account of non-obtaining the required condition the petitioner would not be eligible to hold the post of Junior Assistant.

10. However, the another relevant issue in the present case is that the appointment was provided to the petitioner under Dying-in-Harness Rule as the bread earner of the family died in-harness and on account of that demise the family of the deceased employee has suffered a lot, therefore, it had been rightly considered by the competent authority to provide any appropriate appointment to the petitioner under Dying-in-Harness Rule on the compassionate basis. The law stipulates that the appointment under Dying-in-Harness Rule is of permanent nature and as per letter and spirit of the particular rule any suitable appointment on compassionate ground is provided to one eligible member of the family of deceased employee at the earliest so that sufferance and distress of the family could be met out. Therefore, if any appointment is provided subject to any condition and non-fulfillment thereof may cause cancellation of appointment would not be proper in a case where appointment under Dying-in-Harness Rule has been provided.

11. One case law has been cited by the learned counsel for the petitioner, in re:- Writ A No. 9255 of 2017 (Shakuntala Devi vs. State of U.P. & Others) which was decided finally vide judgment and order dated 20.4.2017 wherein some cases have been cited decided by the Constitutional Court to the effect that "the appointment on compassionate ground is not a temporary appointment but the same has to be treated as permanent appointment."

12. This Court in re: Shakuntala Devi (supra) has cited one judgment of Division Bench of this Court in re: Ravi Karan Singh vs. State of U.P. and others, 1999 (2) A.W.C.-976 All., wherein the Division Bench has held that the appointment under Dying-in-Harness has to be treated as permanent appointment. Later on a Full Bench in the case of Sr. General Manager, Ordnance Factory vs. Central Administrative Tribunal and others, MANU/UP0287/2016, has approved the judgment in re: Ravi Karan Singh (supra).

13. I am also in agreement with the judgment and order in re:- Shakuntala Devi (supra) and other similar judgments to the effect that the appointment under Dying-in-Harness Rule has to be treated as permanent and if on account of any condition which makes such appointment conditional may not be permissible.

14. In the present case since the petitioner was not able to achieve the required typing speed at that point of time, therefore, if competent authority may deem fit and proper may provide another opportunity to the petitioner taking his typing test but if the authority does not find it feasible, at least any appropriate appointment as per his educational qualification may be provided to the petitioner so that the family of deceased employee who died in-harness could survive properly.

15. So as to carry out this exercise, I direct the competent authority to reconsider the candidature of the petitioner for providing him any appropriate appointment under Dying-in-Harness Rule for that the petitioner may prefer a fresh representation taking all pleas and grounds which are available to him enclosing therewith copy of relevant documents which are necessary for disposal of the representation and any appropriate decision as directed above shall be taken by the competent authority i.e. opposite party no.2 (Chief Election Officer, U.P., 4th Floor, Vikas Bhawan, Janpath Market, Hazratganj, Lucknow) with promptness preferably within a period of two months from the date of receipt of representation and the decision thereof shall be communicated to the petitioner forthwith.

16. It is also observed that while taking fresh decision the earlier impugned order dated 22.9.2020 which is subject matter of the present writ petition shall be ignored.

17. The present writ petition is, accordingly, disposed of in the aforesaid terms.

Order Date :- 23.7.2021/Vikas