Court No. - 38
Case :- WRIT - A No. - 1082 of 2019 Petitioner :- Uday Pratap Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Gulab Chandra Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner's father was employed as Chainman and he died while in service on 28.12.2017. An application for grant of compassionate appointment on the post of Lekhpal has been moved on 12.1.2018. This application has been rejected by the Sub-Divisional Magistrate, Soraon, District Prayagraj on the ground that petitioner cannot be offered a post higher than what was held by petitioner's father. This order is under challenge in the present writ petition.
2. The writ petition was entertained on 22.1.2019 and time was granted to learned Standing Counsel to file a counter affidavit. Again time was allowed on 16.5.2019. Despite repeated opportunities granted, no counter affidavit has been filed and therefore the writ petition is taken up for disposal at the admission stage itself.
3. Learned counsel for the petitioner places reliance upon a Division Bench judgment of this Court in Special Appeal Defective No.620 of 2018 (Smt. Premlata Vs. State Of U.P. And 3 Others), decided on 14.9.2018, wherein the Division Bench has been pleased to allow the special appeal and while setting aside the judgment of the learned Single Judge observed that compassionate appointment has to be offered on a post, which is suitable for the candidate concerned, except on a post which is within the purview of U.P. Public Service Commission. The observation of the Division Bench is reproduced hereinafter:-
"At the threshold, we would like to state that though the appointments on compassionate grounds are deviation from the normal procedure and that has been introduced to extend a helping hand to the wards of an employee who dies while in service and, as such, the same is given to meet the emergent harness arose due to death of sole bread earner. While giving such appointments the employee concerned is required to adhere the applicable Rules. In the case in hand, the Rules of 1974 were made by the Government of Uttar Pradesh invoking the powers under proviso to Article 309 of the Constitution of India. Rule 5 of the Rules of 1974 provides that in case the Government Servant dies in harness after the commencement of the Rules and the spouse of the deceased Government Servant is not already employed under Central Government or a State Government or a Corporation owned and controlled by the Central Government or a State Government, one member of his family, who is not already employed shall, on making an application for the purpose, be given suitable employment in Government service, on a post except the post which is within the purview of U.P. Public Service Commission.
A bare perusal of Rule 5 of the Rules of 1974 makes it crystal clear that appointment under Rule 5 aforesaid is required to be given on a suitable post. The term 'suitable' in Rule 5 aforesaid pertains to suitability of the person who desires for appointment and it has nothing to do with the post held by the deceased Government Servant. The suitability of the aspirant is required to be assessed on basis of the educational qualification and other eligibilities so possessed by such person. In the case in hand, the appellant-petitioner is having the qualification of Bachelors Degree in Arts as well as Bachelors Degree in Education.
Looking to the qualification aforesaid, appellant-petitioner is suitable to be employed on a post in Grade-III and there is no just and valid reason for not employing her in the grade aforesaid. Suffice to mention that it is not the case of the appellant-petitioner that no Class-III post is available in the entire Department of Police of Uttar Pradesh.
In view of it, we are of considered opinion that learned Single Bench erred while rejecting the writ petition on the count that the husband of the appellant-petitioner was working in Class-IV cadre and, therefore, appointment in Class-IV cadre is justified.
In view of whatever stated above, the appeal deserves acceptance, hence is allowed. The order impugned dated 31st July, 2018 passed by learned Single Bench is set aside. The petition for writ is allowed. The respondents are directed to consider candidature of the appellant-petitioner for appointment on compassionate grounds in Grade-III service and same be accorded to her if she otherwise does not suffer any ineligibility."
4. Rule 5 of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 is relevant and is reproduced hereinafter:-
"5. Recruitment of a member of the family of the deceased.-(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant 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, 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 purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-
(i) fulfils the educational qualifications prescribed for the post.
(ii) is otherwise qualified for Government service, and
(iii) makes the application for employment within five years from the date of the death of the Government servant:
Provided that where the State government is satisfied that the time- limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death."
Rule 5 of the Rules of 1974 has been amended to include U.P. Subordinate Service Selection Commission also.
5. So far as appointment on the post of Lekhpal is concerned, learned State Counsel Sri Sharad Upadhyay points out that the post of Lekhpal is to be filled by direct recruitment through the U.P. Subordinate Service Selection Commission, and therefore, compassionate appointment cannot be offered on such post in view of Rule 5 of the Rules of 1974 itself. It is, however, submitted that claim of petitioner for appointment would be examined against any other post, keeping in view the qualification of petitioner.
6. The order of the Sub-Divisional Magistrate, Soraon, in so far as it refuses to consider petitioner's claim for appointment on the post of Lekhpal is, therefore, liable to be sustained though for a different reason. The reasoning assigned in the order impugned although is inconsistent with the law laid down by the Division Bench in Smt. Premlata (supra) but as the appointment on the post of Lekhpal has to be made by the Commission as such petitioner's claim cannot be considered against the post of Lekhpal. However, his claim for compassionate appointment is liable to be considered, keeping in view the provisions contained under Rule 5 of the Rules of 1974. In case there exists any post falling in Class-III category for which the petitioner possesses requisite qualification, his claim would not be ignored merely because petitioner's father was holding a lower post. The required consideration would be made, by passing a reasoned order, within a period of three months from the date of presentation of certified copy of this order. The order impugned dated 2.1.2019 shall remain subject to the fresh orders to be passed by the authority concerned, as indicated above.
7. Writ petition, accordingly, stands disposed of.
Order Date :- 21.8.2019 Anil