IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 112 of 2006 Electronics Service and Training Centre and others .……… Appellants Versus Shri Kiran Kumar Joshi ……… Respondent JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Tarun Agarwala, J. J.S. KHEHAR, C. J. (Oral) Mr. Arvind Vashist, Advocate for the appellants. Mr. T.A. Khan, Advocate for the respondent. Through the instant appeal, the appellant i.e. the Electronics Service and Training Centre “hereinafter referred to as the ESTC” has impugned the order passed by a learned Single Judge of this Court dated 04/03/2006 while disposing of Writ Petition No.35 (SS) of 2003. By the aforesaid order dated 04/03/2006, the learned Single Judge arrived at a conclusion that the petitioner (respondent herein) Kiran Kumar Joshi was entitled to appointment on compassionate ground. Through the instant appeal, the ESTC assails the determination of the learned Single Judge in the peculiar facts and circumstances of this case. While inviting the attention of this Court to the facts of the case, learned counsel for the appellant pointed out that the father of the petitioner was earlier an employee of the Army. Having superannuated from the Army, he was in receipt of pension. Thereafter, he was employed by the appellant, i.e. ESTC as an Accountant. During the tenure of his employment, he died in harness on 09/06/1998. The respondent 2 Kiran Kumar Joshi applied through his mother for appointment on compassionate grounds by submitting a representation dated 15/06/1998. The aforesaid representation was not accepted, in as much as, the respondent was required to apply in the prescribed format. The respondent, accordingly submitted two applications dated 21/08/1998 and 10/11/2998 on the prescribed format. Since the applicant had mentioned that he was well versed in stenography and had also qualified the M.A. examination, the ESTC through its resolution dated 25/07/1998 decided to consider his candidature for appointment on compassionate grounds against the post of Stenographer. An interview for the aforesaid purpose was fixed for 10/11/1998. It would be relevant to mentioned here that not only skill in stenography but also tying speed of 30 words per minute is prescribed as a condition of eligibility for appointment against the post of Stenographer. At the interview, a type writing test was conducted where the respondent typed at the speed of 10.5 words per minute, as against the minimum required speed of 30 words per minute. He, however, did not appear in the stenography test also scheduled for the same day. In the aforesaid view of the matter, the candidature of the petitioner could not be considered for appointment on compassionate ground against the post of Stenographer. Neither he had qualified the minimum prescribed requirement in the type writing test nor did he demonstrate proficiency in stenography. The pleadings in the writ petition reveal that the respondent continued to make representation to the ESTC seeking appointment on compassionate ground even against the post of Junior Office Assistant. Since, the claim of the respondent was not considered against the aforesaid post, he approached this Court by filing Writ Petition No. 35 (SS) of 2003. The instant writ petition came to be filed about five years after the death of his 3 father (on 09/06/1998). The learned Single Judge while disposing of the aforesaid writ petition on 04/03/2006 directed the appellant to dispose of the representation made by the respondent within a period of two months from the date of production of certified copy of the order. A direction was also given requiring the appellant to appoint the respondent against the post of Clerk or any other post according to his qualification. In assailing the decision rendered by the learned Single Judge, it is the vehement contention of the learned counsel for the appellant that the post of Clerk is designated as a Junior Office Assistant in the ESTC. It is pointed out that the respondent is ineligible for appointment to the post of Junior Office Assistant on account of the fact that he does not fulfill the mandatory qualification stipulated therefor. In this behalf, it was pointed out that the minimum typing speed for the post of Junior Office Assistant is also 30 words per minute, whereas, as per the record of this case, during the course of selection for the post of Stenographer, the respondent while appearing before the authorities on 10/11/1998 emerged with a result of 10.5 words per minute. It is, therefore, the vehement contention of the learned counsel for the appellant that there is no question whatsoever for considering the claim of the respondent against the post of Junior Office Assistant. The second contention advanced by the learned counsel for the appellant was that an opportunity was afforded to the respondent after he participated in the interview on 10/11/1998 to improve his skills both in stenography and in type writing, but having not improved himself, he never offered himself for re- examination in the aforesaid skills. It is pointed out that favour was shown to the respondent by requiring him to improve his 4 proficiency in stenography as well as in type writing but he failed to encash the same. It is, therefore, submitted that there was no question of appointing him on compassionate ground. The third contention advanced by the learned counsel for the appellant was, that appointment on compassionate ground is a favour shown to dependents of an employee who dies in harness. This favour is shown only to such members of a family (of the deceased employee) who is in financial distress on account of the untimely demise of his parents/guardian. It is submitted that the facts of this case demonstrate to the contrary. In this behalf, it is pointed out that the deceased, father of the respondent, was earlier an employee of the Army wherefrom one pension is being paid to his mother. His mother is also admittedly the recipient of a second pension. Additionally, it is submitted that the respondent’s mother is the owner of the residential building, from which she is earning regular rental income. It is also pointed out that few of the brothers of the respondent are already employed, and are earning regular monthly wages. It is, therefore, the submission of the learned counsel for the appellant that this is not such a case where the concession of compassionate appointment should be granted. We have considered all the three submissions advanced by the learned counsel for the appellant as has been noticed in the foregoing paragraphs. We have also heard learned counsel for the respondent. It is not a matter of dispute between the parties that the respondent could not qualify for the post of stenographer when he appeared on interview on 10/11/1998. Firstly, because his performance in type writing test was below the prescribed standard. Secondly, he did not participate in the stenography examination. As such, there cannot be any justification in his claim for the appointment to the post of Stenographer. So far as 5 appointment against the post of Junior Office Assistant is concerned, it needs to emphasize that consequent to the offer made by the appellant, the petitioner never offered himself for re- evaluation. It must, therefore, be inferred that his performance in type writing did not improve. So far as the post of Junior Office Assistant is concerned, it is not a matter of dispute that a minimum typing speed of 30 words per minute has been prescribed as one of the essential qualifications. The appointment scheme of the ESTC which has been handed over to us in Court today, affirms the aforesaid position. Since the performance of the respondent in type writing was only be 10.5 words per minute, we are of the view that the respondent was not entitle for appointment even against the post of Junior Office Assistant/ Clerk. This leaves us to the last submission advanced on behalf of the learned counsel for the appellant, namely, that the financial condition of the respondent was not such that he could claim appointment on compassionate ground. Having examined the totality of the facts and circumstances noticed hereinabove, we are of the view that the instant plea advanced by the learned counsel for the appellant is also liable to be accepted. Not only the mother of the respondent was earning two pensions, she is also owner of a residential house, wherefrom, she is earning rental income. The brothers of the respondent are also admittedly employed in service and earning monthly wages. Additionally he approached this Court after 5 years of the death of his father. Thus viewed, in our considered opinion the respondent cannot be considered for appointment on compassionate ground, as he does not fulfill the test of extreme financial hardship emerging from the death of a parent in harness. Accordingly we conclude, that the petitioner’s claim is not liable to be considered for appointment on 6 compassionate ground either on the post of Clerk or for any other post. For the reasons recorded hereinabove, the instant special appeal is allowed. The impugned order rendered by the learned Single Judge while disposing of the Writ Petition No.35 (SS) of 2003 vide order dated 04/03/2006 is hereby set aside. (Tarun Agarwala, J.) (J.S. Khehar, C.J.) 02.12.2009 Shiv