HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. WP No. 374 / 04 (S/S) Amit Kumar and others Vs State and Others Approved for reporting. ________________________ Not approved for reporting Date of decision 27.02.2006 Initial of Judge 2 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 374 (SS) OF 2004 1. Constable No. C.P. 1422, Amit Kumar, S/o late Suresh Chandra, R/o Rochipura – Thana Patel Nagar. Post Office Majara, District Dehradun. 2. Constable C.P. No. 49 Satendra Kumar, S/o late Mr. Raj Pal Sharma, R/o Village and Post Baliakheri, P.S. Gagalheri, District Saharanpur. 3. Constable C.P. No. 1423 Ishrat Ali, S/o late Sri Firasat Ali, R/o Azad Colony, Majra, District Dehradun. 4. Constable C.P. 1420 Viresh Pal Singh, aged about 32 years, S/o late Sri Jai Pal Singh, R/o Village Kaziwala, Post Moha mmadpur, Dev Mal, P.S. Madawar, District Bijnore. 5. Constable C.P. No. 1424, Lalit Mohan, S/o Late Mr. M.C. Upreti, R/o 16 Old Police Club, Court Road, District Dehradun. 6. Constable C.P. No. 1425 Bhaskar Singh Negi, S/o late Sri Virendra Singh Negi, R/o Village Siroli, P.O. Pipli, Patti Maniyar Sain, District Pauri Garhwal. 7. Constable C.P. No. Harish Chandra Pandey, S/o late Sri Ganesh Dutt, R/o Near Panchakki, Village Damuadhunga, Post Kathgodam, District Nainital. 8. Constable C.P. No. Ramesh Chandra Kandpal, S/o late Devi Dutt Kandpal, R/o Village Basar, Post Darman, District Almora. 3 9. Constable C.P. No. 532 Jagdish Chandra Pandey, S/o late Mr. Harish Chandra Pandey, R/o P.O. Makhari Police Station Haldwani, District Nainital. …………..Petitioners. Versus 1. State of Uttaranchal, through Secretary Home, District Dehradun. 2. Senior Superintendent of Police, District Dehradun. 3. Deputy Inspector General of Police (Karmik), Police Headquarter, District Dehradun. ………..Respondents. Sri Sharad Sharma, Advocate for the petitioner. Learned Standing Counsel for the State. Dated: 27.02.2006 Hon’ble Rajesh Tandon, J. By the present writ petition, the petitioner has prayed for a writ of mandamus commanding the respondents to appoint the petitioners on the post of Sub Inspector according to the qualification which they possess under the Dying in Harness Rules. 2. Brief facts giving rise to the present writ petition are that the father of the petitioner no. 1 had been working with the respondents in the capacity of a Head Constable till the time when he died on 25.01.1998 in harness. The father of the petitioner no. 2 had been working with the respondents in the capacity of a Sub Inspector till the time when he died on 17.03.2003 in harness. The father of the petitioner no. 3 had been wrking with the respondents in the capacity of a Head Constable (promoted) till the time when he died on 25.04.2002 in harness. Father of the petitioner no. 4 had been working with the respondents ion the capacity of Head Constable till the time 4 when he died on 01.01.2002 in harness. The father of the petitioner no. 5 had been working with the respondents in the capacity of a Confidential Assistant to Director General of Police till the time when he died on 22.12.2002 in harness. The father of the petitioner no. 6 had been working with the respondents in the capacity of a Constable (Driver) till the time when he died on 18.05.2002 in harness. The father of the petitioner no. 7 had been working with the respondents in the capacity of a Head Constable till the time when he died on 04.06.2001 in harness. The father of the petitioner no. 8 had been working with the respondents in the capacity of a Constable in Armed Police bearing No. 170, when he died on 02.12.1998 in harness and father of the petitioner no. 9 had been working as constable, when he died on 23.03.2003. 3. After the death of the bread-earners i.e. father of the petitioners, they applied for appointment under Dying in Harness Rules, 1974. The respondents after scrutinizing the applications regarding the appointment on compassionate ground, issued letter on 01.08.2002 calling upon the petitioners to submit the important documents and to fulfill all the formalities for their participation in the process of selection. 4. It has been submitted that other similar persons who were claiming for appointment on compassionate ground under Dying in Harness Rules were called for interview as will appear from the letter dated 11th October, 2002 for the post of Sub Inspector. 5. On 28.02.2002, the respondent no. 2 issued a letter informing the petitioners to give their consent for being recruited on the post of a constable within a week. 6. Petitioner has submitted that the letter-dated 28.10.2002 has vaguely derived its source for being passed on the basis of some recommendations number D.G.-1/20/2002 (1) dated 5 07.10.2002, but the said letter forming the basi os passing the order dated 28.10.2002 was not appended along with the letter. 6. The petitioners have submitted that on a query, they were iformed that the superior authorities of the department held a meeting on 04.10.2002 and thereby in a policy decision taken on 04.10.2002, they have decided that in Uttaranchal Police Department, none of the delinquents/applicants will be appointed on the post of Sub Inspector. 7. The petitioners have submitted that they are highly qualified and they are entitled for being given the post of Sub Inspector. 6. After the appointment of the petitioners on the post of constable, the petitioner represented their cause before the respondents making a prayer for the appointment on the post of Sub Inspector (Annexures 5 to 11 to the writ petition). 7. The grievance of the petitioners is that the said representation has not yet been decided. 8. In paragraph 17 of the writ petition, it has been stated that the similar persons have been appointed as a Sub Inspector as will appear from the order dated 11th October, 2002. 9. A counter affidavit has been filed by the State, where it has been stated that there has been a policy decision dated 4th October, 2002 where it has been stated that it has been stated that no appointment shall be made on the post of Sub Inspector and appointment under the Dying-in-Harness Rules shall be provided on the post of Constable, Civil Police. 10. Learned Standing Counsel for the respondents in paragraph 12 of the counter affidavit has rebutted the contention of the petitioners so far as other candidates which have been appointed on the post of Sub Inspector were appointed prior to the Policy Decision dated 4th October, 2002. Paragraph 15 of the counter affidavit is quoted below:- 6 “That as for the contents of para 17 of the WP, the facts are again baseless and confusing. In this connection, it is submitted that the Annexure –2 of the WP relates to those candidates, who were recommended on 07.10.2002 i.e. well before change of policy mentioned in reply of para no. 14 of the petition (31.10.2002), but those candidates could not be sent for training. The details of these candidates for the post of Sub Inspector etc. is giving as under:- Sl. No. Name of candidates Date on which the record file receving from U.P./date of receiving proposal from the District Date of recommendation for SI posts were the head of the Department 1 Sri Praveen Singh 19/11/2001 21/11/2001 2 Sri Ved Prakash Thapliyal 15/12/2000 28/01/2002 3 Sri Sandeep Kumar 14/09/2001 16/03/2002 4 Sri Pankaj Devarani 14/01/2002 16/03/2003 5 Sri Arun Kumar 02/03/2002 31/03/2002 6 Sri Ashok Kumar Singh 14/09/2001 14/04/2002 Thus it is clear that the above appointments/selections were, perfectly legal and were made well before 31.10.2002, when the rules of 2002 framed by the Uttaranchal Government were cancelled.” Learned counsel for the petitioners has referred Rule 5 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, which reads as under:- “[5. Recruitment of a member of the family of the decease.-(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 shall, on making an application for the purposes, 7 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 the Government service, and (iii) makes the application for employment within five years form 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.] [(3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government Servant, who are incapable for their own maintenance and were dependent of the abovesaid deceased Government servant immediately before his death.” Similar controversy came before the Allahabad High Court where in Raj Kumar Pundir Vs. State of U.P. and others 2004 (5) AWC 3899, while deciding the case under Dying in Harness Rules, similar arguments were raised, which were replied by the Single Judge of the Allahabad High Court in paragraphs 15, 16, 17 of the judgment. The same are quoted below:- 8 “15. On a query being made by this Court, the standing counsel has informed this Court that they have received instructions that there is shortage of Sub-Inspector in the police department and a large number of vacancies of sub Inspector are lying vacant due to which difficulty is being faced in working by the department. On further query being made by this Court it has been informed that some of the dependents of the constables who died in harness and had filed writ petitions and have withdrawn their petitions their cases are being considered for the post of Sub Inspector and those dependents of constables who have not approached the Court are being considered for appointment on the post of Sub- Inspector. It is only the petitioners who have not withdrawn their cases and have approached the Court are being considered for the policy of the then D.I.G. (Establishment) Headquarter, Allahabad. Thus, discrimination in matter of public employment is writ large on the face of record which is also apparent from paragraph 8, 9, 10, 12 and 13 of the supplementary affidavit. 16. In the counter affidavit the only defence taken is that the petitioners have no legal right to seek appointment on a particular post and they have been offered appointment on the post of constables on compassionate ground in view of the Rules and Regulations. The averments made in paras 16 and 17 of the writ petition that the peittioner was subjected to the physical test fgor the post of Sub-Inspector and was found to be fully eligible for the said post have not been denied. It is not denied that the right from the initial stage the applications of the petitioners for appointment on compassionate ground were processed for the post of Sub-Inspector in the civil police. The petitioners were also subjected to the physical test for the post of Sub-Inspector and were found to be fully eligible for the 9 said post. It further appears from Annexure-5 to the supplementary affidavit that in the year 2001 and 2002 the dependents of the constables have been given appointment as Sub-Inspector…. 17. Thus, it is established from the record that compassionate appointments have been granted to a large number of persons as Sub Inspector despite the fact that their father were working as constables and Head constables at the time of their death. Even otherwise, the letter dated 20th September, 2003, referred to above supports the case of the petitioners that the decision taken by the then Deputy Inspector General of Police (Establishment) U.P. Police Headquarters, Allahabad was incorrect and erroneous and there has been hostile discrimination with the petitioners in matter of public employment.” In the above said case, Allahabad High Court has directed that the claim of the petitioner for the post of Sub Inspector shall be considered by the respondents within a period of one month from the date of production of the certified copy of the order. In Sushma Gosain v. Union of India, (1989) 4 SCC 468, it has been held as under:- “We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant 10 In the above said case, Allahabad High Court has directed that the claim of the petitioner for the post of Sub Inspector shall be considered by the respondents within a period of one month from the date of production of the certified copy of the order. In Sushma Gosain v. Union of India, (1989) 4 SCC 468, it has been held as under:- We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.” In the light of the aforesaid facts, the respondents are directed to pass appropriate orders on the application/representation filed by the petitioners for the post of Sub Inspector within a period of three months from the date of presentation of the certified copy of the order. Writ petition is disposed of accordingly. No order as to costs. (Rajesh Tandon, J.) 27.02.2006 Rathour