1. This is a peculiar case of its own nature wherein the petitioner is aggrieved by action of the respondent vide which the petitioner has been given appointment on a post allowing higher pay scale.
2. Relevant facts required to be considered for adjudicating the issue are that, father of the petitioner died in harness. Petitioner was entitled to consideration for appointment under "The Uttar Pradesh Recruitment of Dependents of Government Servants Dying In Harness Rules, 1974" (in short 'the Rules of 1974'). The petitoner applied for appointment on compassionate ground under the Rules of 1974.
3. Apparently vide Annexure-3, dated 7.9.2007, the petitioner was offered the post of Untrained Veterinary Pharmacist, in U.P.Animal Husbandary Department, in the pay scale of Rs. 2610-3540. Consequently the petitioner joined on 12.09.2007.
4. Vide order Annexure-1, dated 2.11.2007 i.e. just after about two months of joining, in partial amendment of order, Annexure-3, the petitioner was offered the post of Junior Clerk in the same department i.e. Uttar Pradesh Animal Husbandary Department on a pay scale of Rs. 3050-4590. The order further provides that appointment has been offered to the petitioner in accordance with his educational qualification in terms of the Rules of 1974 and Uttar Pradesh Pashupalan Vibhag Lipik Varg Sewa Niyamawali, 1981. The order further inheres that within six months of appointment the petitioner would be required to attain proficiency in typing to the extent of 25 words per minute.
5. The grievance of the petitioner is that the petitioner was appointed vide Annexure-3 on the post of Untrained Veterinary Pharmacist. Order, Annexure-1, has been issued without giving an opportunity of hearing to the petitioner and the petitioner has been appointed in clerical cadre, therefore, order Annexure-1 being violative of principles of natural justice, is liable to be quashed.
6. At the bar it has been argued by learned counsel for the petitioner that the petitioner had been appointed on a technical post, however, vide impugned order Annexure-1, the petitioner has been appointed on a clerical post which adversely affects the rights of the petitioner, hence action of the respondent is legally not sustainable.
7. Sri Rahul Shukla, arguing for the respondent, has argued that vide Annexure-1, the petitioner has been offered a post in higher pay scale and, therefore, the order cannot be construed as in violation of his civil rights. In such circumstance there was no requirement of giving opportunity of hearing to the petitioner.
8. On the second count Sri Rahul Shukla has argued that there is no post of Untrained Veterinary Pharmacist in the Uttar Pradesh Animal Husbandary Department. It was by error or mistake that petitioner was appointed in the said capacity. The mistake has been corrected by virtue of issuance of impugned order Annexure-1.
9. Sri Shukla has also drawn attention of the Court towards pleadings in Para-7 of the Counter Affidavit and Annexure CA-1, which provides that a person can be appointed as Veterinary Pharmacist who possesses qualification of High School and Intermediate with Biology as a subject or Agriculture as a subject or equivalent qualification. The petitioner does not possess these qualifications and the post is also not in existence and, therefore, alternate appointment has been offered to the petitioner.
10. Learned counsel appearing for the petitioner, in reply has drawn attention of the Court towards Annexure RA-1 to say that the respondents are resorting to pick and choose policy, which is not permissible in law. Vide Annexure RA-1, dated 16.01.2007, appointment has been given to another person on the post of Untrained Veterinary Pharmacist. Under the circumstances the petitioner also has a right to be appointed in the said capacity.
11. I have heard learned counsel for parties and have gone through the pleadings.
12. The undisputed facts are that the petitioner was given appointment under the Rules of 1974 on compassionate grounds on the post of "Untrained Veterinary Pharmacist" in Uttar Pradesh Animal Husbandary Department on a pay scale of Rs.2610-3540. It is the admitted case of the petitioner that post of "Untrained Veterinary Pharmacist" does not exist. Specific averments in that regard have been made in Para-7 of the Counter Affidavit and the said fact has not been disputed by the petitioner in the Rejoinder Affidavit, nor any such provision providing for the post of Untrained Veterinary Pharmacist has been shown from the Service Rules applicable to the Department, during arguments in Court.
13. It is further not in dispute that the petitioner has been offered a post in the same department under Uttar Pradesh Pashupalan Vibhag Lipik Varg Sewa Niyamawali, 1981, in accordance with qualification of the petitioner vide Annexure-1 in the pay scale of Rs.3050-4590. The pay scale on which the petitioner has been offered appointment is certainly substantially higher than earlier offered vide Annexure-3.
14. Reference to the pleadings further makes it evident that post of Veterinary Pharmacist requires minimum qualification of High School and Intermediate with Biology or Agriculture as a subject, or equivalent qualification. There is not even a whisper or suggestion in the assertion of the petitioner in the pleadings that the petitioner possesses the said minimum qualification for appointment on a technical post.
15. The petitioner derives the right to appointment under Rules of 1974. Rule-5 of the said Rules reads as under:
"5. Recruitment of a member of the family of the deceased.-- In case a Government servant dies in harness after the commencement of these rules, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government service which is not within the purview of the State Public Service Commission in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualfied for Government service. Such employment should be given without delay and, as far as possible, in the same department in which the deceased Government servant was employed prior to his death." (emphasis supplied by me).
16. Perusal of the above extracted rule indicates that a pre-condition for giving employment on compassionate ground is that the candidate must fulfil the educational qualifications prescribed for the 'post'. In the case in hand, the petitioner has failed to set up a case to indicate that he is duly qualified for appointment on a technical post.
17. It is the admitted case of the petitioner that there is no post in U.P. Animal Husbandary Department of 'Untrained Veterinary Pharmacist'. In such circumstances this Court does not find any fault in the action of the respondents in offering an available post to the petitioner. No fault can be traced in the action of the respondent in passing an order in accordance with Rule 5 of the 1974 Rules. Surely the action of the respondents in offering a non existent post would have been contrary to the provisions of the said rule.
18. Case of the respondent is that a mistake had been committed by offering a non-existent post to the petitioner. The mistake has been corrected.
19. Learned counsel appearing for the petitioner has relied on judgment rendered by Hon'ble Supreme Court in (2007) 6 Supreme Court Cases 162 [I.G.(Karmik) and others v. Prahalad Mani Tripathi] (paras 9, 10 and 11) . The paras read as under:
"9. In State of Rajasthan v. Umrao Singh [(1994)6 SCC 560) this Court has categorically stated that once the right is consummated, any further or second consideration for higher post on the ground of compassion would not arise.
10. Again in State of Haryana v. Ankur Gupta this Court held :(SCC p. 707, para 6)[(2003) 7 SCC 704].
"6. As was observed in State of Haryana v. Rani Devi it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die- in-Harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case it was held that the scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar it was pointed out that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that as a rule, in public service appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."
11.Respondent, thus, could be offered an appointment only to the post for which he was suitable." (Emphasis supplied by me)
20. The judgment rather favours the claim of the respondents. The judgment has been rendered in regard to right of a person who claims second consideration for higher post on the ground of compassion. The Hon'ble Supreme Court held that a person cannot claim a higher post on the ground of compassion, once that right is consummated.
21. In the present case the position is otherwise. The respondents have offered a post with higher pay scale to the petitioner and, therefore, the judgment relied upon by the petitioner would not come to the rescue of the petitioner. Rather, in the considered opinion of the Court, the judgment favours the respondents insomuch as in the above extracted paras it has been held that appointment on compassionate ground is not another source of recruitment. It is an exception. Appointment on compassionate ground is not made strictly on the touchstone of Articles 14 and 16 of the Constitution of India. The provision has been made to enable the family to get over sudden financial crisis. Such appointments are required to be made in accordance with rules, regulations or administrative instructions.
22. Vide impugned order Annexure-1, the respondents have offered to the petitioner a post that is in existence and, therefore, have endeavoured to follow the rules, regulations and administrative instructions, applicable to the facts and circumstances of the case. Action of the respondents in offering an available post to the petitioner is in tune with the judgment rendered by the Hon'ble Supreme Court of India in Prahlad Mani Tripathi's case (supra), relevant portion of which has been extracted above. If the respondents had not passed subsequent order Annexure-1 in partial modification of the earlier order Annexure-3, the result would have been that petitioner would have been appointed on a post that is not in existence under the service rules. The action of the respondents, under the circumstances would have been in violation of Rules and Regulations. In such circumstances also this Court does not trace any legal infirmity in the action of the respondents.
23. So far as the right of the petitioner to claim a hearing before passing of impugned order Annexure-1 is concerned, reference may be made to judgment rendered by Hon'ble Supreme Court of India in 2000(7) Supreme Court Cases 529 (Aligarh Muslim University and others v. Mansoor Ali Khan) (paras 21 to 24).
" 21. As pointed recently in M.C. Mehta v. Union of India[(1999)6 SCC 237], there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example, where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828: (1966) 2 SCR 172] it is not necessary to quash the order merely because of violation of principles of natural justice.
22. In M.C. Mehta it was pointed out that at one time, it was held in Ridge v. Baldwin [1964 AC 40: (1963)2 All ER 66 (HL)] that breach of principles of natural justice was in itself treated as prejudice and that no other 'defect' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] Chinnappa Reddy, J. followed Ridge v. Baldwin and set aside the order of suppression of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.
23. Chinnappa Reddy, J. in S.L. Kapoor's case, laid two exceptions (at p.395)namely," if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words, if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
24. The principle that, in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43: 1984 SCC (L & S) 62] Sabyasachi Mukherji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed: quoting Wade Administrative Law, (5th Ed.PP.472-475) as follows: (para 31) "[I] it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ...There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth."
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v.S.K.Sharma [(1996)3 SCC 364: 1996 SCC (L & S) 717]. In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P.[(1996) 5 SCC 460]" (emphasis supplied by me)
24. In the above extracted portion of the judgment, it has been categorically held 'Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P. it is not necessary to quash the order merely because of violation of principles of natural justice'. When the said principle is applied to the present case and if plea of the petitioner is accepted resulting in quashing of Annexure-1, Annexure-3, would be revived. Consequently, this Court would be upholding action of the respondents in offering/appointing the petitioner on a post that is not in existence under the rules. The action of the respondents would be rendered in violation of the rules and regulations. Thus following the dictum in Mansoor Ali Khan's case (supra), this Court is of the considered opinion that there was no necessity of giving an opportunity of hearing to the petitioner before passing order Annexure-1.
25. The judgment in Mansoor Ali Khan's case (supra), would also be relevant for the present case for the reason that no prejudice is caused to the petitioner by virtue of passing order Annexure-1 as rights of the petitioner have not been adversely affected. In this regard the following aspects have to be considered :
(a) The petitioner has been offered a post with higher pay scale within a couple of months of passing of the earlier order. A Higher Pay Scale would not result in adverse civil consequences for the petitioner.
(b) The services of the petitioner had not been regularised under appointment order Annexure-3, and during that period itself, in 3 months or so, order Annexure-1 has been passed.
(c) The petitioner has been offered appointment on compassionate grounds, which per se is not the right of the petitioner. The entire controversy has to be considered in the light of the right of the petitioner to claim employment, dehors the fact that the petitioner has not competed for the post, as would be required in compliance of provisions of Articles 14 and 16 of the Constitution of India.
26. Writ Court is not required to invoke its extra ordinary writ jurisdiction in every case brought to it indicating change in circumstances. The Court is required to consider whether manifest injustice has been caused to the petitioner, or not. In the case in hand, considering the totality of facts and circumstances, no manifest injustice has been caused to the petitioner. No substantial right of the petitioner has been adversely affected.
27. In the considered opinion of this Court, no person approaching a writ court in its extra ordinary jurisdiction can seek equality in illegality. Appointment was required to be given to the petitioner on a post under the 'Rules of 1974'. Post was not in existence and, therefore, apparently a mistake had been committed by the respondent, which has been corrected by virtue of offering another post in higher pay scale. A mistake committed in earlier case cannot be a ground for repeating the same mistake [vide 1995 Supreme Court Cases (L&S) 192 (State of M.P. And others v. Ramesh Kumar Sharma].
28. Also, in the considered opinion of the Court, appointment of another person under an illegal order would not vest a right in the petitioner to invoke extra ordinary writ jurisdiction. Parity can only be claimed in regard to a legal action.
29. In view of the above, this Court finds no reason to interfere with the action of the respondents in judicial review in extra ordinary writ jurisdiction. Writ Petition is accordingly dismissed.
30. The petitoner, however, would have the liberty to accept appointment under Annexure-1, within 45 days from today.
31. Before parting with the order, because the petitioner has continued to serve under order Annexure-3, dated 7.9.2007, (under order of interim stay passed by this Court), in case the petitioner chooses to join in terms of Annexure-1, dated 2.11.2007, the terms and conditions provided in Annexure-1, shall apply to the services of the petitioner.
Order Date :- 3.12.2014 Irfan