Vimal Kumar vs State Of U.P. And 2 Others
2021 Latest Caselaw 11205 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 
Case :- WRIT - A No. - 8789 of 2021
 
Petitioner :- Vimal Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Siddharth Khare,Santosh Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Suneet Kumar,J.

1. Heard Shri Siddharth Khare, learned counsel appearing for the petitioner and learned Standing Counsel for the State-respondents.

2. Pursuant to order dated 16 September 2021 learned Standing Counsel has received written instructions and submits that the reasons assigned in the impugned order has been reiterated by the second respondent.

3. On the consent of the parties, the matter is being heard finally at the admission stage without calling for the counter affidavit.

4. Petitioner came to be given compassionate appointment on 14 June 2018 on the post of Assistant Clerk, a Class-III post. Petitioner is having graduate degree and CCC certificate from DOEACC.

5. It was clearly provided in the appointment letter that petitioner would have to obtain computer knowledge/typing proficiency as mandated under the service rules within the period of probation.

6. Petitioner joined duties on the post of Junior Assistant in the Collectorate Sambhal. Petitioner was called upon to take the typing test of on 24 June 2019, however, petitioner sought further time to practice and gain typing speed. Thereafter, petitioner appeared on 31 January 2020 in the typing test, but failed to achieve type speed of 25 words per minute. Petitioner again was given an opportunity to improve his typing proficiency and skill but he again on 12 June 2020 failed to achieve the requisite speed in the typing test. The services of the petitioner came to be dispensed with by the second respondent, District Magistrate, Sambhal, by passing the impugned order dated 15 June 2020. The consequential order dated 15 July 2020 came to be passed by the Tehsildar, Tehsil Gunnaur, District Sambhal, terminating the services of the petitioner. Aggrieved, petitioner raised a challenge to the afore-noted orders in a petition being Writ Petition No. 7998 of 2020. The writ petition came to be disposed of by passing the judgment and order dated 5 March 2021, directing the respondent-authorities to consider the representation of the petitioner for compassionate appointment on a lower post. The relevant portion of the order for the purposes of the case is extracted:

"21. There is no infirmity in the impugned order terminating the services of the petitioner after grant of one month notice period. The impugned orders dated 15.06.2020 and 19.07.2020 are not liable to be interfered with and the prayer for quashment of the impugned orders is declined.

22. xxx

23. xxx

24. In the wake of the aforesaid submissions this Court feels that eligibility for appointment on lower post after the services of the petitioner have been terminated, is a matter which may be considered in the first instance by the competent authority.

25. Without going into the merits of the submissions, the matter is remitted to the respondent no. 2, District Magistrate, Sambhal. The respondent no. 2, District Magistrate, Sambhal shall decide the representation of the petitioner for appointment on a lower post under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, in accordance with law within a period of four months from the date of production of a computer generated copy of this order, downloaded from the official website of the High Court Allahabad.

26. The computer generated copy of such order be self attested by the petitioners (party concerned) along with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

27. The writ petition is disposed of finally with the above directions."

7. In compliance thereof, by the impugned order dated 24 May 2021, claim of the petitioner for appointment on the lower post under compassionate appointment rules came to be rejected on the plea that the claim of the incumbent for compassionate appointment is considered once under the Dying-in-Harness Rules, there is no provision under the rules for appointing the incumbent on a lower post on having failed to acquire the minimum qualification/proficiency prescribed under the rules for the Class-III post.

8. It is urged by learned counsel for the petitioner that petitioner was not a confirmed employee, therefore, petitioner's case could be considered for appointment on a lower post in the event of the petitioner having not qualified the type test; in the event of the petitioner not being considered for a lower post, it would tantamount to perpetuate the financial hardship of the family; petitioner's claim for compassionate appointment still subsists. Reliance has been placed on the orders passed by this Court in Mukul Sagar Vs. State of U.P. and others1 and Smt. Shaheen Siddiqui Vs. State of U.P. and others2.

9. In other words, it is urged that petitioner is entitled to appointment on a lower post on having not successfully qualifying the requisite proficiency test for the post on which the petitioner came to be appointed.

10. Per contra, the learned standing counsel submits that petitioner came to be granted compassionate appointment under the Dying-in-Harness Rules, on Class-III post as per the qualification of the petitioner. The service rules mandate that the incumbent apart from having minimum educational qualification is to pass type test. Accordingly, petitioner was appointed on a condition that he would be required to appear and pass the type test within the period of probation. Services of the petitioner came to be dispensed with as petitioner failed to qualify the type test despite several opportunities. The claim for compassionate appointment stood exhausted on being appointed. Services of the petitioner came to be dispensed with on the terms and conditions of appointment. It is not permissible under the rules that petitioner can seek a fresh appointment on compassionate ground.

11. Rival submissions fall for consideration.

12. The sole question for determination is, as to whether, petitioner can be reappointed on compassionate ground on a lower post on having failed to acquire the essential qualification prescribed for Class-III post under the service rules.

13. Facts inter-se parties are not in dispute.

14. Petitioner came to be appointed Clerk (Class-III) on compassionate ground under the provision of U.P. Government Servant Dying-in-Harness Rule, 19743, on the death of the deceased employee. It is not being disputed that under the rules governing recruitment on Class-III post, petitioner is required to pass type test. Petitioner came to appointed on 14 June 2018, subject to condition that petitioner would obtain/qualify the typing test. It is admitted that petitioner was given several opportunities but petitioner failed to qualify the typing test at 25 words per minute. Accordingly, services of the petitioner came to be terminated. Petitioner challenged the termination order before this Court in writ jurisdiction. The Court declined to interfere with the impugned order dispensing with the service of the petitioner on having not fulfilled the conditions of appointment as mandated under the service rules, however, directed the respondents to consider, as to whether, petitioner can be appointed on a lower post. Pursuant to the directions of this Court, the impugned order 24 May 2021, has been passed. The second respondent has noted in the impugned order that since petitioner failed to qualify the type test, accordingly, services of the petitioner came to be terminated as per the terms and conditions of the appointment, on having not acquired the minimum essential qualification required for appointment on Class-III post.

15. It is further noted in the impugned order that there is no provision under Rules, 1974, to reconsider the appointment of the incumbent claiming fresh appointment on a lower post after termination.

16. Rule 4 envisages that the Rules, 1974, and the order issued thereunder of having effect notwithstanding anything to the contrary contained in any rules, regulations and order in force. Rule 5 provides for recruitment of a member of the family of the deceased. The rule categorically mandates that in case a government servant dies in harness and spouse of the deceased government servant is not already employed under the government, Central and/or State, one member of the family, who is not already employed shall be given a suitable employment in government service on a post in relaxation of the normal recruitment rules, if, such person (i.) fulfils the educational qualification prescribed for the post; (ii) is otherwise qualified for government service.

17. Rule 5 came to be amended/substituted vide notification dated 22 January 2014, wherein, it was specifically provided that if the post on which a person is appointed under the rules require typing as the essential qualification, then in that event, the person would be appointed under Rules, 1974, on a condition that within one year from the date of appointment the appointee will have to obtain type speed at 25 words per minute, failing which, his services will be dispensed with. Rule 5 reads thus:

"5. e`rd ds dqVqEc ds fdlh lnL; dh HkrhZ +&

1++++ &&&&

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ijUrq ;g fd ;fn fu;qfDr fdlh ,sls in ij dh tkrh gS ftlds fy, Vad.k dks ,d vfuok;Z vgZrk ds :i esa fofgr fd;k x;k gS vkSj e`r ljdkjh lsod ds vkfJr ds ikl Vad.k esa visf{kr izoh.krk ugha gS] rks mls bl 'krZ ds v/khu fu;qDr fd;k tk,xk fd og ,d o"kZ ds Hkhrj gh Vad.k esa 25 'kCn izfr feuV dh visf{kr xfr izkIr dj ysxk vkSj ;fn og ,slk djus esa foQy jgrk gS rks mldh lkekU; okf"kZZd osru & o`f) jksd yh tk,xh] vkSj Vad.k esa visf{kr xfr izkIr djus ds fy, mls vxzsrj ,d o"kZ dh vof/k iznku dh tk,xh] vkSj ;fn c<+k;h x;h vof/k esa Hkh og Vad.k esa visf{kr xfr izkIr djrs esa foQy jgrk gS rks mldh lsok;sa lekIr dj nh tk;saxh]

ijUrq ;g vkSj fd fdlh ,sls in ij fu;qfDr fd;s tkus dh n'kk esa] ftlds fy, dEi;wVj izpkyu vkSj Vad.k ,d vfuok;Z vgZrk ds :i esa fofgr dh x;h gS vkSj e`rd ljdkjh lsod dk vkfJr dEI;wVj izpkyu vkSj Vad.k esa visf{kr izoh.krk ugha j[krk gS] rks mls bl 'krZ ds v/khu jgrs gq, fu;qDr dj fy;k tk;sxk fd og ,d o"kZ ds Hkhrj gh dEi;wVj izpkyu esa Mh0vks0bZ0,0lh0lh0 lkslk;Vh +}kjk iznRr ^^lh0lh0lh0** izek.k i= ;k ljdkj }kjk mlds led{k ekU;rk izkIr fdlh izek.k&i= ds lkFk&lkFk Vad.k esa 25 'kCn izfr feuV dh visf{kr xfr vftZr dj ysxk] vkSj ;fn og ,slk djus esa foQy jgrk gS rks mldh lkekU; okf"kZd osru&o`f) jksd yh tk;sxh vkSj dEI;wVj izpkyu esa visf{kr izek.k&i= vkSj Vad.k esa visf{kr xfr vftZr djus ds fy, mls ,d o"kZ dh vxzsrj vof/k iznku dh tk;sxh] vkSj ;fn c (ii) ....

(iii)...."

18. On specific query, learned counsel for the petitioner does not dispute that the service rules governing the appointment on Class III posts mandates typing at a prescribed speed as an essential qualification. It is also not being disputed that petitioner came to be appointed on a Class III post under Rules, 1974, on a condition that he would require to obtain the typing speed within the period noted in the appointment letter. It is also not being disputed that petitioner was asked to appear for the typing test on four occasions and petitioner was unable to obtain/qualify the prescribed speed on two occasions, consequently, the services of the petitioner came to be terminated.

19. Rule 5(4)(e) of the U.P. Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 1998 reads thus:

"5. Procedure for direct recruitment

(1) .....

x

x

x

x

x

x

(e) In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, there shall be a test of typewriting or shorthand and typewriting, as the case may be......"

20. The submission of the learned counsel for the petitioner that petitioner on having not fulfilled the essential qualification mandated for a Class III post, should now be offered a lower post under Rules 1974, is misconceived. The purpose of the Rules 1974, for compassionate appointment is to tied over the financial hardship befallen upon the family on the sudden demise of the bread earner. Once the family member of the deceased employee has obtained compassionate appointment, his right to be considered, on a subsequent occasion upon termination, for appointment under the same Rules would not entitle such a person to fresh appointment. On exhaustion of the right upon appointment under Rules 1974, it is not open to the petitioner to turn around and say that he be granted a lower post. Petitioner with all eyes open had accepted the appointment on a Class III post and was fully aware that he would have to pass the type test. On having failed to acquire the minimum prescribed type speed, it is not open for the petitioner to turn around and seek a fresh appointment on a lower post. The claim for compassionate appointment on having being exhausted on appointment cannot be re-agitated on termination or for that matter on acquiring a higher qualification. The contention of the petitioner if accepted would be violative of Article 14/16 of the Constitution of India. Such an appointment at this stage, in the given facts, would tantamount to backdoor appointment bypassing the recruitment rules.

21. Petitioner cannot claim reversion or fresh appointment on a post which he had not held at the time of appointment under Rules, 1974. Petitioner having not fulfilled the specific condition of appointment, this Court had declined to interfere with the impugned order terminating the services of the petitioner as no illegality or infirmity could be pointed out. Petitioner cannot seek appointment on mercy and/or sympathy. Such an appointment was rightly not granted by the State-respondents.

22. Learned counsel for the petitioner failed to point out any illegality, infirmity or jurisdictional error.

23. The petition being devoid of merit is, accordingly, dismissed.

Order Date :- 7.10.2021

S.Prakash