Allahabad High Court
Ankita Pandey vs U.P. Power Corporation Limited, ... on 3 March, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- WRIT - A No. - 2102 of 2023
Petitioner :- Ankita Pandey
Respondent :- U.P. Power Corporation Limited, Thru. Its Chairman And Others
Counsel for Petitioner :- Vijay Kumar Bajapai
Counsel for Respondent :- Neerav Chitravanshi
Hon'ble Pankaj Bhatia,J.
Heard learned Counsel for the petitioner and Sri Neerav Chitravanshi, learned Counsel for the respondents.
The present petition has been filed challenging the order dated 14.06.2021 whereby the services of the petitioner were dismissed finding that the petitioner could not complied with the conditions of the appointment order.
The contention of the Counsel for the petitioner is that the petitioner was appointed on compassionate grounds on account of death of his father who died in harness. The contention is that the appointment granted to the petitioner was subject to the condition that the petitioner acquires the typing speed of 25 words per minute and in the event, the petitioner fails to acquire the said typing speed in terms of the provisions contained in Rule 5 of The U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974, the services shall be dispensed with.
The order impugned records that the petitioner was appointed on 08.03.2019 and was called upon to undergo typing test for the first time on 31.08.2020, which the petitioner failed and subsequently the petitioner was given another opportunity on 17.03.2021 which the petitioner again failed and thus relying on the provisions of Rule 5 of the 1974 Rules, the impugned order terminating the services of the petitioner was passed.
The contention of the Counsel for the petitioner is that in terms of the amended Rules 5 of the 1974 Rules, there is a provision that in the case of the appointment on the posts which requires proficiency in typing test, the incumbent shall be granted one year time to undergo the typing test and in case, he fails to acquire the requisite typing speed, his annual increment shall be withheld and a further period of one year has been granted to him to acquire the requisite speed. The said Rule 5 further provides that in case the incumbent fails to achieve the requisite speed even after the expiry of the said period, an order shall be issued to provide an appointment on the post of Class-IV posts.
The Counsel for the petitioner further argues that in terms of the appointment order of the petitioner dated 08.03.2019, the first opportunity was given on 31.08.2022 and the second opportunity was granted on 17.03.2021, thus in between the first opportunity and the second opportunity, there is a gape of one year of time as is prescribed in Rule 5. He further argues that even otherwise, it was incumbent upon the respondents to pass an order offering an appointment under Class-IV posts which have not been done and the impugned thus is arbitrary and illegal.
The Counsel for the petitioner places reliance on the judgment of this Court in the case of Anuj Mishra vs State of U.P. and others (Writ-A No.3141 of 2022) decided on 14.07.2022 which is based upon the judgment rendered in the case of Durgesh Srivastava vs State of U.P. and others; 2017 (7) ADJ 146 (LB) and the judgment rendered in the case of Shakuntala Dev vs State of U.P. and others; 2017 (12) ADJ 506 , the following directions have been issued:
"10. In light of the above, the impugned order dated 24.09.2021 is set aside. If the 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 give him 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 property."
Sri Neerav Chitravanshi, learned Counsel appearing on behalf of the respondents argues that the intent of the time granted under Rule 5 is to provide two years time to the incumbent to acquire the requisite speed. He further argues that the second part of Rule 5 was inserted by virtue of Thirteenth Amendment in the year 2002 w.e.f. 27.12.2022 and thus the petitioner cannot claim the benefit of the amendment carried out subsequently.
Considering the said submissions made at the bar, it is clear that the case of the petitioner and his rights would be governed by Rule 5 which is prior to its amendment in the year 2022. In terms of the unamended Rule 5, it is clear that a period of one year and thereafter further a period of one year is to be provided and in the event, the requisite speed could not be achieved, the services can be dispensed with.
In the present case, there is no gap of one year as prescribed in between the first and the second test and considering the fact that the Rules are beneficial piece of delegating legislation, the present writ petition is allowed. The impugned order dated 14.06.2021 (Annexure-1) is set aside.
The respondents are directed to grant one more opportunity to the petitioner to acquire the requisite typing speed after three months from today.
In the event, the petitioner acquires the said typing speed, he would be granted the employment and in case, the petitioner still fails, the respondents shall offer him a suitable employment in Class-IV posts in terms of the spirit of Rule 5(1) which provides that the applicant shall be offered 'suitable' employment. The proviso to Rule 5(1) cannot be interpreted in a manner so as to render the main part of Rule 5(1) nugatory.
Order Date :- 3.3.2023
akverma
