SUNEEL KUMAR versus STATE OF U.P. & ORS. on 2 August 2022

JUDGMENT

1. Leave granted.

2. The father of the appellant who was working as Class-IVemployee (Sweeper) at the Office of Vikas Khand Khutam, Jaunpur,U.P., passed away on 23.11.2016. An application came to be made bythe appellant for being appointed under Rule 5 of The Uttar Pradesh AB

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ARecruitment of Dependents of Government Servants Dying in HarnessRules, 1974 (hereinafter referred to as ‘the Rules of 1974’). Rule 5reads as follows:-

“[5. Recruitment of a member of the family of the deceased.-(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 or a 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 theCentral Government or a State Government or a Corporationowned or controlled by the Central Government or a StateGovernment shall, on making an application for the purposes, begiven a suitable employment in Government service on a postexcept the post which is within the purview of the Uttar PradeshPublic Service Commission, in relaxation of the normal recruitmentrules, if such person- B

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(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 fromthe date of the death of the Government servant:

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Provided that where the State Government is satisfied thatthe time limit fixed for making the application for employmentcauses undue hardship in any particular case, it may dispensewith or relax the requirement as it may consider necessary fordealing with the case in a just and equitable manner.

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(2) As far as possible, such an employment should be givenin the same department in which the deceased Government servantwas employed prior to his death.]

[5A. Recruitment of member of the family of Police/P.A.C.Personnel who dies in May, 1973.- Notwithstanding anythingcontained to the contrary contained in Rule 5 or in any other rule,the provisions of these rules shall apply in the case of members ofthe family of twenty-two police or per Provincial ArmedConstabulary personnel who died as a result of disturbances inMay, 1973, as they apply in the case of a Government servantduring dying in harness after the commencement of these rules.]

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3. The appellant is a graduate and also got computer literacy. Hewas offered a post of Sweeper, the post which was held by his latefather. However, the appellant being so advised rejected the offer anddid not join and gave his representation by which he expressed hisdisinclination to join, which effectively means that he rejected the offer.Thereafter, the appellant approached the Court which directedconsideration of his representation. The respondents again rejected therequest to accommodate the appellant in a Class-III post. It must benoted that the appellant specifically sought to be appointed as GramPanchayat Officer, a post which is borne on the cadre of Class-III post.There is no dispute that the said post does not come within the purviewof the Uttar Pradesh Public Service Commission contemplated underRule 5. Therefore, the Rule in this regard was not an obstacle to theclaim of the appellant. However, the respondents rejected therepresentation in keeping with their understanding of the words “suitableemployment” in Rule 5. This again generated another writ petition. It isthe said writ petition which finally culminated in the High Court holdingagainst the appellant.

4. We heard Mr. Arijit Prasad, learned senior counsel appearingon behalf of the appellant and Ms. Ruchira Goel, learned counselappearing on behalf of the respondent No.1-State of U.P.

5. Mr. Arijit Prasad, learned senior counsel appearing on behalfof the appellant would submit that the High Court essentially premisedits judgment on the basis of the view taken by this Court reported inState of Uttar Pradesh And Others versus Premlata, (2022) 1 SCC30. Therein, no doubt, this Court has inter alia held as follows:- “11. In view of the above and for the reasons stated above, theDivision Bench of the High Court has misinterpreted andmisconstrued Rule 5 of the 1974 Rules and in observing and holdingthat the “suitable post” under Rule 5 of the Dying-In-HarnessRules, 1974 would mean any post suitable to the qualification ofthe candidate and the appointment on compassionate ground is tooffered considering the educational qualification of the dependent.As observed hereinabove, such an interpretation would defeatthe object and purpose of appointment on compassionate ground.”

6. He would submit that this view came to be formed by thisCourt without bearing in mind what he initially described as relevant AB

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ARules in this regard. What he referred to the Rules are to be found fromAnnexure P-1, which are, inter alia, produced as below:- “1. With a view to ameliorate the condition of dependents ofGovernment servants who die during service, “U.P. Recruitmentof dependents of deceased Government Servants Regulation 1974”(Amended) were circulated. In these regulations, there is a systemfor appointment of the dependents of deceased outside U.P. PublicService Commission for filing up post in Group C and Group Dposts. Up till now 11 amendments have been done in theseregulatios. The original regulations with 11 modifications areattached herewith.

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2. In connection with appointment of dependents of deceasedemployees, a WP (C) was filed vide No. 2228 (SS) 2014 PrakashAgarwal Vs. Registrar General, High Court, Allahabad in whichHon. High Court, Lucknow Bench passed order on 17.04.2014whose para 49 makes the following observations.

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a. Application should be disposed of within three monthsfrom the date dependent applies for a job. Under Rules, notime limit is prescribed but intent of the rule is to provideimmediate relief to the bereaved family to meet immediatefinancial crisis (Shiv Kumar Dubey (supra)]. In this background,Appropriate Authority is supposed to dispose of suchapplications within a shortest possible time. In any case,application should not be kept pending for more than threemonths.

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b. Appointment under the Rules cannot be refusedmerely on the ground that financial status of the applicant issound. Nor payment of retiral benefits at the time of death,furnishes any ground for refusal.

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c. Non availability of posts is no ground to refuseappointment.

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d. Appointment on Class III post cannot be refusedmerely on the ground that deceased was Class III/ IVemployee.

e. Appointment has to be offered according toqualification and suitability of candidate and the applicant should H

be given an appointment commensurate therewith. If appointingauthority does not give appointment on the post claimed byapplicant because of non-suitability,reasons have to be recordedby the appointing authority.

f. Dependent of deceased has no right to claim particularposition or place and it is in the discretion of the appointingauthority to pass appropriate order warranted in the facts andcircumstances of the case.”

3. In this connection, I am directed to say that in the context ofappointment of the dependents of deceased employees, theguidelines, instructions issued by Hon’ble High Court are requiredto be complied with strictly.”

7. In other words, he would submit that a perusal of the saidRules in Clause-2(d) thereof would reveal that an appointment on Class-III post should not be refused only on the ground that the deceased wasa Class-III or a Class-IV employee. He would submit that had this Courtbeen taken into confidence about the existence of this Rule, the viewtaken by this Court as already noticed may not have been taken. Hewould submit that the question of suitability need not be decided withreference to the post which was held by the deceased employee. Ratherin a case such as this, where the appellant is clearly entitled to be appointedas Gram Panchayat Officer with reference to the qualification which hehas and what is more, bearing in mind that this is not a post which comeswithin the purview of the Public Service Commission, there is no legalhurdle in the appellant being accommodated. Alternatively, he wouldalso submit that in case this Court is not inclined to accept his contention,the appellant may at least be vouchsafed the security of the employmentas a Sweeper.

8. Per-contra, Ms. Ruchira Goel, learned counsel appearing onbehalf of the respondent No.1-State of U.P. would contest the matterand point out in the first place that the reference made to the so calledRules by the learned senior counsel for the appellant may be misplaced.There are essentially orders passed by the Government on the basis ofthe view expressed by the High Court in W.P.(C) No.2228(SS) 2014,Prakash Agarwal Vs. Registrar General, High Court, Allahabad.She would further submit that on a proper understanding of the judgmentof the High Court, the interpretation sought to be placed by the appellant A

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Amay not emerge. She would further bring to our notice the judgment ofthis Court in State of Himachal Pradesh and Another versus ShashiKumar, (2019) 3 SCC 653 and contend at the appointment under thecompassionate scheme is not meant to be a source of recruitment. It isessentially to reach immediate succor to a bereaved family. In otherwords, the sudden passing away of a Government Servant creates aBfinancial vacuum and it is to lend a helping hand to the genuinely needymembers of the family that an appointment is provided. It is never meantto be a source of recruitment. It is further contended that thoughappointment can be made in regard to Class-III and Class-IV posts, thiscannot mean that when the employee who passed away was borne onCthe Class-IV cadre, the dependents can stake a claim to a Class-IIIappointment. As far as the alternate submission is concerned, it issubmitted that the appellant did not choose to accept the offer ofappointment as Sweeper and what is more, he rejected it and there maynot be a vacancy to accommodate the appellant.D9. This is a case where the father of the appellant was working asa Sweeper. Undoubtedly, the appellant is qualified (according to him)and in the said sense is suitable for being appointed as a Gram PanchayatOfficer. The death of the employee in this case took place not too faraway, namely, it took place on 23.11.2016. Therefore, this is not a casewhere the link between the date of the death and the time forEconsideration of the matter by this Court has snapped. We must not beoblivious to the fact that the deceased employee was a Sweeper.

10. At the same time, as far as the question relating to theentitlement as it were of the appellant to be considered to the post ofGram Panchayat Officer is concerned, it is without doubt a post borne inFClass-III. The father of the appellant was working as a Sweeper bornein Class-IV post. We have noticed the view taken by this Court inPremlata (supra). In other words, the law as declared is to the effectthat the words “suitable employment” in Rule 5 must be understood withreference to the post held by the deceased employee. The superiorGqualification held by a dependent cannot determine the scope of thewords “suitable employment”.

11. It is clear that the Annexure P-1 does not represent statutoryRules. We do not think we should be persuaded to take a different viewas things stand. We cannot eclipse the dimension that the whole purportHof the scheme of compassionate appointment is to reach immediate relief to the bereaved family. In such circumstances, the meaning placed onthe words “suitable employment” bearing in mind the post held by thedeceased employee cannot be said to be an unreasonable or incorrectview.

12. Having so held, we must now consider the case of the appellantfor appointment as a Sweeper at least. It may be true that the appellantmay have been on the advice given persuaded to litigate the matter andpersevere in his claim for a specific post. It may be true that there wererounds of litigation but as we have already noticed bearing in mind thedate of the death of the employee, the claim of the appellant may not besaid to be afflicted with such delay as should deprive him and the familyof the deceased of relief of the appellant being appointed as a Sweeper,a right which is given under the statutory Rule.

13. In such circumstances, the appeal is partly allowed. We setaside the impugned judgment and we direct the respondent No.3-DistrictPanchayat Raj Officer, District Jaunpur, U.P. to appoint the appellant tothe post of Sweeper. The necessary order appointing the appellant shallbe issued within a period of eight weeks from the date of production ofthe copy of this judgment. No doubt, we are passing this judgment in thepeculiar facts of this case.

The appeal is partly allowed.

No order as to costs.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeal partly allowed.

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