STATE OF UTTAR PRADESH AND OTHERS versus MOHD REHAN KHAN on 8 August 2022

1. Leave granted.

2. The appeal arises out of a judgment of a Division Bench of theBAllahabad High Court dated 25 August 2020. The Division Benchdismissed the intra- court appeal filed by the appellants against thejudgment of a Single Judge of the High Court dated 5 November 2019directing the appellants to consider the candidature of the respondentfor appointment to a Class IV post on compassionate grounds.

C3. The father of the respondent was employed by the Governmentof Uttar Pradesh as a driver in the Office of Economics and StatisticsOfficer at Shahjahanpur. He died in harness in 2015. The respondentwas appointed on a ‘temporary basis’ in the Class III post of a JuniorAssistant at the Office of Economics and Statistics, Shahjahanpur. TheDletter of appointment dated 30 May 2016 stipulates that the respondenthas to acquire a typing speed of twenty five words per minute within ayear in terms of the condition stipulated in Rule 5(1) of the Uttar PradeshRecruitment of Dependents of Government Servants Dying in Harness(Tenth Amendment) Rules 2014[1]. Clause 4 of the letter of appointmentis in the following terms:E“4. As per the condition stipulated in Rule 5(1) of the UttarPradesh Recruitment of Dependants of Government ServantsDying in Harness (Tenth Amendment) Rules, 2014, the appointedperson is expected to acquire, within one year, the typing speed of25 words per minute and CCC certificate in computer operationFby D.O.E.A.C.C. Society or certificate declared to be equivalentthereto by the Government and in case he fails to do so, then hisgeneral annual increment shall be withheld and a further period ofone year shall be granted to him to acquire the requisite speed oftyping, and if in the extended period also he again fails to acquirethe requisite speed in typing, his services shall be dispensed with.”G4. Rule 5 of the Dying in Harness Rules as amended in 2014 bythe Tenth Amendment to the Rules, which was notified on 17 January2014, inter alia, contains the following stipulation:

STATE OF UTTAR PRADESH AND OTHERS v. MOHD REHANKHAN [DR DHANANJAYA Y CHANDRACHUD, J.]

“Provided further that in case appointment is to be made on apost for which the knowledge of computer operation andtypewriting has been prescribed as an essential qualification andthe dependent of the Government servant does not possess therequired proficiency in computer operation and typewriting, heshall be appointed subject to the condition that he would acquirethe CCC certificate in computer operation awarded by theDOEACC Society or a certificate equivalent thereto from anInstitution recognised by the Government together with the requiredspeed of 25 words per minute in typewriting well within one yearand, if he fails to do so, his general annual increment shall bewithheld and a further period of one year shall be granted to himto acquire the required certificate in computer operation and therequired speed in typewriting and if in the extended period also heagain fails to acquire the in required certificate computer operationand the in required speed typewriting, his services shall be dispensedwith.”

5. The respondent acquired a certificate of proficiency incomputers. He failed in his first attempt of the typing test. He was intimatedby an OM dated 20 March 2017 that he had a typing speed of only 6words per minute and had therefore not achieved the requisite speed of25 words per minute. Thereafter, he was given a second opportunity toclear the typing test on 7 August 2019. On 8 August 2019, it was notifiedthat the respondent did not clear the typing test. On 11 September 2019,the Deputy Director (Economic and Statistics) of Bareilly Divisionterminated the services of the respondent.

6. The respondent instituted a writ petition under Article 226 ofthe Constitution before the High Court of Judicature at Allahabad seekingto quash the order dated 11 September 2019 terminating the employmentof the respondent and a mandamus directing the petitioners to reinstatehim in service. It was the contention of the respondent that while he wastaking the typing test, the computer system had malfunctioned, and thatthe termination order was issued without issuing a show cause notice.By a judgment dated 5 November 2019, a Single Judge of the HighCourt relied upon an earlier decision in Mukul Sagar v. State of UttarPradesh[23]where a Single Judge of the Allahabad High Court held that 2 Writ Petition No. 12737/2018 decided on 4 July 2018

3 Writ Petition No 12737/2018 decided on 4 July 2018

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Athough the employee appointed on compassionate grounds would haveto be terminated from the Class III post in terms of Rule 5 of the 2014Rules for non-fulfillment of the prescribed qualifications, the authoritiescould have considered the claim for appointment to a Class IV post. Itwas observed that such an interpretation would be in consonance withthe objective of compassionate appointment. The Single Judge disposedBthe writ petition with the direction that the termination of the respondentbe revisited in view of the observations made in Mukul Sagar (supra)and to pass a fresh order within two months. The Single Judge directedas follows:

“In the facts and circumstances, noticed above, this writ petitionCalso stands disposed of with a direction upon the respondent no. 3to revisit the issue, keeping in view the observation made by thisCourt in the aforesaid order dated 4.7.2018, and pass a freshorder, within a period of two months from the date of presentationof certified copy of this order. The order impugned in this petitionDshall remain subject to the fresh orders to be passed by the authorityconcerned.”

7. The Division Bench of the Allahabad High Court dismissed theappeal on 25 August 2020 observing that the respondent has alreadybeen terminated from service and that the Single Judge had only directedEthat the case of the respondent be reconsidered for appointment oncompassionate grounds afresh on a post in Class-IV cadre.

8. We have heard Mr Ankit Goel, counsel appearing on behalf ofthe appellant and Mr Danish Zubair Khan and Mr Jayprakash Somani,counsel for the respondents.F

9. The appointment order of the respondent stipulated that hewould be required to obtain a certificate in regard to knowledge ofcomputers and to pass the typing speed test with a speed of 25 wordsper minute within a prescribed period. The proviso to Rule 5(1) of the2014 Rules which has been extracted above provides that if a candidateGfails to achieve a typing speed of 25 words per minute within a year, theannual increment would be withheld and a further period of one yearwould be granted to the candidate to acquire the requisite speed. If acandidate fails to do so within the extended period, the Rules providethat his services shall be dispensed with. A similar stipulation operates inregard to obtaining a certificate of proficiency in computers. TheH

termination of the services of the appellant due to his failure to clearthe typing test was hence in terms of the stipulation contained in theorder of appointment as well as the provisions of Rule 5(1) of the 2014Rules.

10. The direction of the High Court that the respondent beconsidered for a Class IV post is not consistent with the provisions oflaw. There is no vested right to compassionate appointment.Compassionate appointment, it is well settled, is an exception to Article16 of the Constitution which embodies the principle of equality ofopportunity in matters of public employment.[4 ]Compassionateappointment is offered to a person belonging to the family of a deceasedemployee who has died in harness to tide over the financial crisis resultingfrom the death of the wage earner of the family. The terms on whichcompassionate appointment is offered under the rules or schemegoverning compassionate appointment have to be complied with.

11. The respondent sought appointment as an Assistant in the officeof Economics and Statistics and was granted such an appointment. Anemployee who has been appointed on compassionate grounds is notgranted an exception from the service conditions that have to be compliedunder the relevant Rules. Rules relating to compassionate appointmentmust be interpreted bearing in mind that it is an exception to the principleof equality of opportunity.[5] Compassionate appointments provide anentry-level concession. The appointment cannot be used to seeksubsequent concessions merely because the appointment was made oncompassionate grounds. Any concession subsequently provided, unlessthe rules stipulate, would be violative of the principle envisaged in Articles14 and 16 of the Constitution. Appointment through compassionategrounds only grants the family of the employee who dies in harness anentry into the services, which is one of the many modes of appointment.Once appointed, all the employees irrespective of the mode of appointmentare to be treated alike, unless the relevant Rules stipulate otherwise.Rule 5(1)(i) of the 2014 Rules stipulates that for a person to be appointedto a post on compassionate grounds, he should fulfill the prescribededucational qualification. The relevant extract of rule 5 reads as follows:

4 General Manager, State Bank of India v. Anju Jain, (2008) 8 SCC 475; V. Sivamurthy v.State of AP, (2008) 13 SCC 730

5 Uttaranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205; State of Jharkhand v. ShivKarampal Sahu, (2009) 11 SCC 453.

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A“5. (1) In case a Government servant dies in harness after thecommencement of these rules, and the spouse of the deceasedGovernment servant is not already employed under the CentralGovernment, the State Government or a Corporation owned orcontrolled by the Central Government or a State Government,one member of his family who is not already employed under theBCentral Government or a State Government or a Corporationowned or controlled by the Central Government or a StateGovernment shall, on making an application for the purpose, begiven a suitable employment in Government Service on a postexcept which is within the purview of the Uttar Pradesh PublicCService Commission, in relaxation of the normal recruitment rulesif such person- A

(i) Fulfils the educational qualifications prescribed for thepost.”

(ii) (emphasis supplied)

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12. Rule 5(1)(i) prescribes an entry level eligibility criteria. Thefirst proviso to Rule 5 prescribes an additional qualification if appointmentis made to a post for which knowledge of computers and typing areprescribed as an essential qualification. This qualification must beacquired by the appointee within the time period stipulated in the Rules.EThough the respondent possessed the educational qualification prescribedunder the Rules, he did not acquire the qualifications prescribed underthe provisos to Rule 5(1)(i). This Court has in the past explained therelevance of both the eligibility criteria and additional qualifications.[6]The respondent ought to have possessed both the eligibility criteria andqualifications to continue in the said post. Having been granted anFappointment to the post of Assistant, the respondent was required tofulfill the dual conditions of obtaining a certificate of proficiency incomputers (which he did) and to achieve the requisite speed in typingwithin a stipulated period (which he did not despite two opportunities).Appointment to an alternate post cannot be directed by the High Court.GThis would permit entry into a Class IV post at the expense of otherswho may be waiting in line for compassionate appointment or for whichpersons who seek appointment in open competition would be eligible.

6 Preeti Srivastava v. State of MP, (1999) 7 SCC 120; State of Gujarat v. Arvindkumar T.HTiwari, AIR 2012 SC 3281

13. The view which was taken by the High Court relying on itsearlier decision in Mukul Sagar (supra) was plainly erroneous. We,however, clarify that while we have held that the decision in MukulSagar (supra) does not lay down correct principle of law, the presentjudgment should not be construed as a direction to the State to disturbthe appointment which may have been granted to the petitioner in MukulSagar’s case.

14. For the above reason, we are unable to subscribe to the viewof the Single Judge and of the Division Bench in appeal in the presentcase.

15. The appeal is allowed by setting aside the impugned judgmentof the Division Bench dated 25 August 2020 and the judgment of theSingle Judge dated 5 November 2019. The writ petition instituted by therespondent before the High Court shall in the circumstances standdismissed.

16. Pending applications, if any, stand disposed of.

CivilAppealNo5213of2022

(Arising out of SLP (C) No 5524 of 2021)

1. Leave granted.

2. The respondent’s mother was employed as a Senior Assistantat the office of Arth Evam Sankhya Adhikari, Mathura. She died inharness in the year 2015. The respondent applied for appointment oncompassionate grounds and was offered appointment to the post of JuniorAssistant. The appointment order dated 30 May 2016 draws attention toRule 5(1) of the 2014 Rules. The respondent failed the typing test on 16March 2017 and 17 July 2019. By an order dated 31 July 2019, theservices of the respondent were terminated. The respondent filed a writpetition[7] challenging the order of termination and seeking the relief ofreinstatement. The Single Judge of the High Court in his judgment dated21 November 2019 relied upon the earlier decision in Mukul Sagar v.State of Uttar Pradesh and directed the petitioners to revisit the issue.The Division Bench by its judgment dated 2 September 2020 dismissedthe Special Appeal[8] preferred by the State of Uttar Pradesh relyingupon its decision in Special Appeal Defective No 169 of 2020[9].

7 WP (Civil) No. 18189 of 2019

8 Special Appeal Defective No 168 of 2020

9 State of Uttar Pradesh vs Mohd Rehan Khan dated 25 August 2020

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A3. Since the decision which has been relied upon by the SingleJudge and the decision of the Division Bench in Mohd Rehan havebeen disapproved in the above decision, the present appeal shall standallowed by setting aside the judgment of the Division Bench dated 2September 2020 and the judgment of the Single Judge dated 21 November2019. The writ petition filed by the respondent before the High CourtBshall stand dismissed.

4. The appeal is allowed in the above terms.

5. Pending applications, if any, stand disposed of.

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Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeal allowed.

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