Sima Singh vs State Of ...
2021 Latest Caselaw 3232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- SERVICE SINGLE No. - 5562 of 2021
 

 
Petitioner :- Sima Singh
 
Respondent :- State Of U.P.Thru.Prin.Secy.Food & Civil Supplies & Ors.
 
Counsel for Petitioner :- Jitendra Singh,Abhinav Singh,Purnima Singh
 
Counsel for Respondent :- C.S.C.,Shubhra Kumar
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Jitendra Singh, learned counsel for the petitioner, learned Standing Counsel for opposite parties no.1 & 2 and Ms. Shubhra Kumar, learned counsel for opposite parties no.3 & 4.

By means of this petition, the petitioner has assailed the order dated 12.11.2020 passed by opposite party no.4 denying to consider and appoint the daughter of the petitioner under Dying-in-Harness Rules. The petitioner has prayed that the opposite parties be directed to reconsider the candidature of her daughter and appoint her on any suitable post under the Dying-in-Harness Rules.

Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.7 to the writ petition, which is a judgment and order dated 22.2.2019 passed by this Court in Service Single No.22494 of 2018, Abhishek Kumar Vs. Secretary, Deptt. of Food & Civil Supplies and others, thereby similar controversy has been dealt with and similar impugned order has been set aside remanding back the matter to the concerning authority to reconsider the issue in the light of the identical orders being passed by this Court. For brevity, the order dated 22.2.2019 passed in the case of Abhishek Kumar (supra) is being reproduced herein below:-

"Heard Sri Abhinav Singh, learned counsel for the petitioner and Ms. Subhra Kumar, learned counsel for opposite parties no.2 & 3. Learned Standing Counsel has put in appearance for opposite party no.1.

By means of this petition, the petitioner has assailed the order dated 18.7.2018 passed by opposite party no.2 i.e. the Executive Director, U.P. State Employees Welfare Corporation, Lucknow denying to appoint the petitioner under Dying-in-Harness Rules on the ground that the department is running in loss and the Government Order dated 11.7.2003 provides that such Public Undertakings/ Corporations, which are running in loss or surplus employees are working, no appointment under the Dying-in-Harness Rules may be provided.

Learned counsel for the petitioner has submitted that the identical issue has engaged attention of this Court in the case of Kamalbhan Singh Vs. State of U.P. and another, Writ Petition No.2352 (S/S) of 2014, whereby this Court vide order dated 16.9.2016 has been pleased to quash the identical order being passed in the said matter. Learned counsel for the petitioner has referred some relevant paragraphs of the said judgment, which are as under:-

"Undisputedly Rules, 1974 has been adopted by the respondents. In the impugned order it is clearly mentioned that now the corporation is in profit. In view of the said fact the Government Order dated 11.7.2003 wherein it is mentioned that if the corporation is running in loss is not attracted in the present case. In regard to the communication dated 31.6.2014 in respect of some other employees the said communication does not have any legal status as it is merely a correspondence between Special Secretary and the Executive Director. The appointment on compassionate ground is an exception under the Rules, 1974. The main object of the appointment on compassionate ground is to give succour to the family which is living in indigent circumstances and they have no other source of livelihood. It is true that Supreme Court in a large number of cases has held that appointment on compassionate ground is not a matter of right if there is no provision under the Rule/Statute. But once the corporation has adopted the Rules, 1974 then it is bound by the provisions of the said Rules.

Moreover in the case at hand the finding which has been recorded by the respondent no. 2 is that the corporation is in profit. In view of the above the impugned order needs interference. In previous decision this Court has clearly mentioned that respondent shall pass the order ignoring the previous orders dated 1.10.2012 and 22.11.2012. In both the said orders the same grounds were reiterated. Thus it was not proper for the second respondent to take the same ground for rejection of the petitioner's claim for appointment once those grounds have not found favour by this Court and an appropriate direction was issued to ignore those grounds."

Learned counsel for the petitioner has further submitted that the aforesaid judgment of Kamalbhan Singh (supra) has been followed by this Court in subsequent cases, copy of one order passed by this Court on 5.11.2016 in the case of Vaibhau Tripathi Vs. State of U.P. and others, Writ Petition No.7251 (S/S) of 2016, has been enclosed whereby this Court was pleased to quash the identical order remitting back the matter to the concerning authority to consider afresh in the light of the observation made by this Court. Operative portion of the order dated 5.11.2016 passed in the case of Vaibhau Tripathi (supra) is as follows:-

"Learned counsel for the Corporation submits that the Corporation has sought the clarification from the State Government and the State Government in the Government Order dated 04th July, 2003 has mentioned that if the Government /public enterprises/ corporation is running in loss, no appointment shall be offered on compassionate ground.

I have considered the rival submissions of learned counsel for the parties and perused the record.

This Court in Kamalbhan Singh (supra) has considered the submissions of the Corporation about the Government Order dated 11th July, 2003 and has not accepted the same. The Supreme Court in the case of Canara Bank and another v. M. Mahesh Kumar, 2015 (7) SCC 412, has considered the issue with regard to offering compassionate appointment although in the said case the matter was related to Bank.

In view of the above, I find that the ground mentioned in the impugned order is unsustainable and accordingly, the impugned order dated 14th January, 2016 passed by the second respondent is set aside. The matter is remitted to the authority concerned to consider afresh in the light of the observations made herein-above within three months from the date of communication of this order.

Accordingly, the writ petition is allowed. No order as to costs."

On the strength of the aforesaid legal position, learned counsel for the petitioner has submitted that being an identical issue, the petitioner of this writ petition may be granted benefit of the aforesaid orders being passed by this Court.

Ms. Subhra Kumar, learned counsel for opposite parties no.2 & 3 has submitted that the Corporation in question is really running in loss, therefore, the appointment on compassionate ground could not be made as per the policy of the Corporation. On that, learned counsel for the petitioner has drawn attention of this Court towards Annexure No.10 to the writ petition, which is an office order dated 8.12.2017 passed in favour of one Sri Chandra Shekhar Lohani appointing him under the Dying-in-Harness Rules. Learned counsel for the petitioner has submitted that the concerning opposite party is adopting pick and choose method in providing appointment under compassionate ground.

Considering the rival submissions of learned counsel for the respective parties and after perusing the relevant records, I am of the considered view that the order dated 18.7.2018, which is contained in Annexure No.1 to the writ petition, is liable to be quashed and accordingly, the order dated 18.7.2018 passed by opposite party no.2 is hereby quashed. The matter is remanded back to the competent authority concerned to pass a fresh order in the light of the observation made by this Court in the case of Kamalbhan Singh (supra), Writ petition No.2352 (S/S) of 2014 and also in the light of subsequent judgment dated 5.11.2016 in re; Vaibhau Tripathi (supra) within a period of six weeks.

The concerning opposite parties shall pay regard to the fact that in the matter of compassionate appointment, there should not be any loss of time and as such, the matter be decided within the period mentioned above.

The writ petition is accordingly allowed."

Ms. Shubhra Kumar, learned counsel for opposite parties no.3 & 4 has submitted that on account of financial crunch, the Department is not able to appoint any person under the Dying-in-Harness Rules. Therefore, the Department is of the view that no fresh appointment of any kind whatsoever shall be made till the current situation of financial constraints is overcome. So far as the similar order is concerned, she has nothing to say.

Accordingly, the present writ petition is allowed in terms of the judgment and order dated 22.2.2019 in re; Abhishek Kumar (supra).

The impugned order dated 12.11.2020 passed by opposite party no.4, which is contained in Annexure No.1 to the writ petition, is hereby quashed and the matter is remanded back to the competent authority concerned to pass fresh order in terms of judgment and order dated 22.2.2019 in re; Abhishek Kumar (supra). This order shall be complied with within a period of six weeks from the date of production of certified copy of this order.

No order as to costs.

Order Date :- 9.3.2021

RBS/-

[Rajesh Singh Chauhan,J.]