Vijay Kumar Singh vs The State Of U.P. And 2 Others
2024 Latest Caselaw 36564 ALL

Allahabad High Court

Vijay Kumar Singh vs The State Of U.P. And 2 Others on 7 November, 2024

Author: Prakash Padia

Bench: Prakash Padia

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2024:AHC:172482
 
Judgment Reserved on 24.09.2024
 
Judgement Delivered on 07.11.2024
 

 
Court No. - 10
 

 
Case :- WRIT - A No. - 22213 of 2022
 

 
Petitioner :- Vijay Kumar Singh
 
Respondent :- The State Of U.P. And 2 Others
 
Counsel for Petitioner :- Shivendu Ojha,Sneh Pandey,Sr. Advocate
 
Counsel for Respondent :- Arun Kumar,C.S.C.
 

 
Hon'ble Prakash Padia,J.
 

1. The petitioner has filed the present petition challenging the order dated 07.12.2022 passed by the District Basic Education Officer, Gorakhpur/respondent No.3. A further prayer has also been made to direct the respondents to appoint the petitioner on Class III post under Dying in Harness Rules.

2. The facts in brief as contained in the petition are that the father of the petitioner namely Ayodhya Singh has been retired from the post of Administrative Officer in the office of Zila Panchayat Gorakhpur on 31.12.2010 and now he is getting pension from the State Government. The mother of the petitioner namely Smt. Kalindi Singh while working as Assistant Teacher in Purva Madhyamik Vidyalaya Sarai Gulariha, Block Charganwa District Gorakhpur died on 26.05.2019. The Petitioner having the qualification as M.A. in Sociology and CCC certificate in Computer knowledge as well as certificates of typing knowledge in Hindi and English, both, the petitioner submitted an application on 19.07.2019 on a prescribed proforma for his appointment on the post of clerk under the Dying-in-Harness Rules. On the said application, a report was submitted by his Block Education Officer, on 20.09.2020 and on the basis of the aforesaid report, an order was passed by the respondent No.3 on 21.06.2021 giving the appointment to the petitioner on Class IV post. Immediately thereafter, the petitioner submitted an application on 28.07.2021 before the respondent No.3 annexing all the materials and documents with the prayer that since the petitioner is having all the necessary qualification for appointment on Class III post, he should be given appointment on the post of Clerk. Vide letter dated 30.9.2022, the respondent No.3 directed the petitioner to submit certain documents and pursuant to the same, the petitioner submitted all the documents on 12.10.2022. Not satisfied with the same, the respondent No.3 rejected the application of the petitioner seeking appointment on the post of Clerk vide impugned order dated 07.12.2022. Hence the present petition.

3. The claim of the petitioner was rejected by the respondent No.3 in terms of the provisions contained under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to "Rules, 1974").

4. It is argued by learned counsel for the petitioner that as per Rule 5 of Rules, 1974, if either of Spouses were Government Servants in any one of the groups and one has already retired from service and another died in harness then his/her dependent can be appointed under the Rules, 1974. Learned counsel for the petitioner placed reliance upon the judgment and order dated 17.4.2014 passed by Lucknow Bench of this Court in Writ petition being Service Single No..2228 of 2014, (Prakash Agrawal Vs. Registrar General, High Court, Allahabad and others) reported in (2014) 4 All LJ 171. It is argued that taking into consideration the aforesaid judgement, the State Government has already issued a Government Order on 17.06.2024 directing all the Principle Secretaries of U.P. Government that while considering the application for appointment on compassionate ground, the directions given by the Co-ordinate Bench in paragraph 49 of the judgment of Prakash Agarwal (supra) should be followed.

5. It is argued that despite the aforesaid direction, the respondent No.3 has wholly illegally rejected the claim of the petitioner for appointment on compassionate ground.

6. In the counter affidavit filed by the respondent No.3, it is stated that the appointment has been made to provide immediate help on the death of the bread-earner of the petitioner's family so that entire family will get relief from immediate financial crisis. The claim of the petitioner was considered and appointment to the petitioner on Class IV post was provided. Presently there is no financial crisis in the family of the petitioner and the petitioner wanted appointment only according to his qualification and status. It is further stated in the counter affidavit that father of the petitioner is receiving pension being retired employee from the post of Administrative Officer in the office of Zila Panchayat Gorakhpur and the family pension on account of death of his mother has also been paid to the petitioner. It is further stated in the counter affidavit that appointment given under the Dying-in-Harness Rules is an alternative mode of recruitment.

7. In the Rejoinder affidavit filed in response to the counter affidavit, facts narrated in the petition are reiterated.

8. Heard learned counsel for the parties and perused the record.

9. From perusal of the order impugned, it is clear that the claim of the petitioner was rejected only on the ground that financial status of the petitioner is sound. It is further stated that the father of the petitioner was retired employee from the post of Administrative Officer in the office of Zila Panchayat Gorakhpur and got Rs.2,93,608/- as yearly pension and the family of the deceased Smt. Kalindi Singh is geeting Rs.5,00,280/- as family pension for the financial year 2021-2022.

10. Time and again it has been held by this Court as well as Hon'ble Supreme Court in large number of judgements that the appointment under the dying-in-harness rules cannot be refused merely on the ground that the financial status of the petitioner/applicant is sound. Nor payment of retiral benefits at the time of death, furnishes any ground for refusal. In the case of Prakash Agarwal (supra) on which the petitioner placed reliance, following principles have been laid down by a co-ordinate Bench of this Court :-

49. From the above, following principles can be deduced on interpretation of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974:

(a) Application should be disposed of within three months from the date dependent applies for a job. Under Rules, no time limit is prescribed but intent of the rule is to provide immediate relief to the bereaved family to meet immediate financial crisis [Shiv Kumar Dubey (UPLBEC 2014 (1) Pag 589)]. In this background, Appropriate Authority is supposed to dispose of such applications within a shortest possible time. In any case, application should not be kept pending for more than three months.

(b) Appointment under the Rules cannot be refused merely on the ground that financial status of the applicant is sound. Nor payment of retiral benefits at the time of death, furnishes any ground for refusal.

(c) Non availability of posts is no ground to refuse appointment.

(d) Appointment on Class III post cannot be refused merely on the ground that deceased was Class III/IV employee.

(e) Appointment has to be offered according to qualification and suitability of candidate and the applicant should be given an appointment commensurate therewith. If appointing authority does not give appointment on the post claimed by applicant because of non-suitability, reasons have to be recorded by the appointing authority.

(f) Dependent of deceased has no right to claim particular position or place and it is in the discretion of the appointing authority to pass appropriate order warranted in the facts and circumstances of the case.

11. Taking into consideration, a Government order has been issued by the State Government on 17.06.2014 in which it is clearly provided that the appointment under the dying-in-harness rules cannot be refused merely on the ground that financial status of the petitioner is sound.

12. Insofar as the present case is concerned, in spite of Government Order issued by the State Government pursuant to the aforesaid judgement, the respondent No.3 rejected the claim of the petitioner for appointment on compassionate ground only on the basis that the financial condition of the petitioner is sound.

13. In this view of the matter, the Court is of the opinion that since the order passed by the respondent No.3 is in complete violation of the Government Order dated 17.06.2014 and the principles laid down by this Court in the case of Prakash Agarwal (supra), the same is liable to be set aside and is hereby set aside.

14. The respondent No.3/District Basic Education Officer, Gorakhpur is directed to pass fresh order in the matter strictly in accordance with law most expeditiously and preferably within a period of two months from the date of production of certified copy of this order.

15. With the aforesaid observations, the writ petition is allowed.

Order Date :- 07.11.2024

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