Court No. - 29
Case :- SPECIAL APPEAL No. - 164 of 2021 Appellant :- Dilip Kumar Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Bhaju Ram Prasad Sharma, Arvind Kumar Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Subhash Chandra Sharma,J.
By this appeal, a challenge made to the judgment dated 18th February, 2021 by which the writ petition preferred by the petitioner-appellant to challenge the order dated 30th December, 2020 to cancel the compassionate appointment was dismissed on the ground that the petitioner-appellant could not passed the typing test and otherwise having no knowledge about the computer despite possession of CCC certificate. The learned Single Judge gave reference of the judgment of the Full Bench of this Court in the case of Sr. General Manager, Ordnance Vs. Central Administration Tribunal [2016 (2) ADJ 751 (FB)]. The following para of the judgment was quoted for ready reference:
"...An employee who is appointed on a compassionate basis is not immune from the operation of the general rules of service. What the scheme for compassionate appointment does is to provide certain exemptions and relaxations which are specifically codified (in Para 6 of the earlier O M dated 9 October 1998 and the O M dated 16 January 2013). Those exemptions and relaxations are that - firstly, the ordinary procedure for recruitment through the agency of the Employment Exchange or the Staff Selection Commission need not be observed; secondly, clearance from the surplus cell is not required; and thirdly, the ban order, if any, on filling up of posts issued by the Union Ministry of Finance in the Department of Expenditure are not applied. Para 6 also contemplates a relaxation in the upper age limit, in the fulfillment of the minimum educational standards and the passing of a typing test. The exemptions and relaxations must be confined to those which are prescribed by the policy and cannot be extended by the Court beyond what has been prescribed. Determining the nature and extent of exemptions and relaxations is a matter of executive policy. The Court in the exercise of its jurisdiction under Article 226 cannot re-write or re-frame policies, judicial review being confined to whether there is a constitutional violation. The Division Bench in Jagdish Narain has erred in holding that the Office Memorandum does not contemplate an appointment being made on probation and in concluding that an appointment on compassionate basis being "a special kind of legislation unknown to the general procedure of recruitment" in the service rules, a compassionate appointee cannot be placed on probation. A person who is appointed on a compassionate basis obtains employment without having to go through the ordinary procedure of recruitment and where a relaxation is required, by relaxing norms such as the upper age limit, minimum educational requirements and typing test. Again, here it is necessary to emphasise that these relaxations are granted because they are envisaged in the policy. But once appointed, a person who is recruited as a direct recruit on a compassionate basis is appointed 'on a regular basis' and against regular vacancies available for that purpose. A person appointed on a compassionate basis has to fulfill all the other obligations and responsibilities of the service. Such an appointee cannot claim immunity from an assessment by the employer of the suitability for retention in service..."
Learned counsel for the appellant submits that the order of termination has been passed in violation of the principles of natural justice thus, should have been interfered by the learned Single Judge.
We do no find any argument to this effect before the learned Single Judge and no averment in the appeal that the issue aforesaid was raised during the course of oral argument yet it has not been considered. The fact further remains that while appointing the petitioner-appellant on compassionate ground by the order dated 24th December, 2018, it was made clear that he would have to pass typing test within one year. The petitioner- appellant appeared in the typing test but failed to clear it. The required speed in the typing test was 25 words per minute, as against it, the petitioner-appellant typed only 13 words. It is apart from the fact that petitioner-appellant had no knowledge of computer despite possession of CCC certificate. In any case, we ignore the knowledge of computer. However, it is not in dispute that petitioner-appellant could not clear the typing test and as per the condition of the appointment order, he was required to clear the typing test within a period of one year.
In light of the aforesaid, it could not be clarified as to what excuse could have been taken by the petitioner-appellant if a show cause notice would have been given and otherwise this Court allowed to argue the case on merits in reference to his failure to clear typing test and consequence. The petitioner- appellant could not raise argument in regard to its failure other than to show that he could type 13 words and that should not have been declared failure despite requirement of 25 words per minute to clear the typing test. The issue otherwise has already been decided by the Full Bench of this Court in Sr. General Manager, Ordnance (supra) and has been relied by the learned Single Judge thus, we do not find it to be a fit case for sending it for post-decisional when facts on record are not in dispute. Accordingly, we find no reason to interfere in the judgment of the learned Single Judge. Appeal accordingly fails and is dismissed.
Order Date :- 28.7.2021 VMA (Subhash Chandra Sharma, J.) (Munishwar Nath Bhandari, A.C.J.)