Allahabad High Court

Smt. Madhulika Pathak vs State Of U.P. And Others on 29 January, 2011

Bench:
Sunil Ambwani
,
Jayashree Tiwari

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Judgment reserved on 02.12.2010

Judgment delivered on 29.01.2011

Civil Misc. Writ Petition No.42420 of 2010

Smt. Madhulika Pathak Vs. State of U.P. & Ors.

Hon. Sunil Ambwani, J.

Hon. Mrs. Jayashree Tiwari, J.

1. We have heard Shri R.N. Singh, Senior Advocate assisted by Shri G.K. Singh and Shri V.K. Singh for the petitioner. Standing Counsel appears for the respondents.

2. The petitioner's husband late Shri Mani Prakash Pathak was serving in U.P. Police as Deputy Superintendent and was posted as Circle Officer, Collector Ganj, Kanpur Nagar with additional charge as Incharge Special Operation Group. On 13.6.2007 while he was returning after arresting some accused, the vehicle in which he was travelling met with an accident on Etawan Kanpur road. He sufferred serious injuries in the accident and died in a hospital on 24.6.2007.

3. The petitioner is an educated lady with M.A. and M.Ed. as her academic qualifications. In order to settle herself in life and to provide education to her two children, she made an application on 12th July, 2007 to the Senior Superintendent of Police, Kanpur Nagar, to consider her for appointment on compassionate grounds on the post of Officer on Special Duty under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (in short the Rules of 1974).

4. The S.S.P., Kanpur Nagar made a favourable recommendation for her appointment to the Inspection General of Police (Administration) Headquarter and Director General of Police at Lucknow to consider her for appointment under the Rules of 1974. The Inspector General of Police (Admn.) wrote a letter to the Superintendent of Police, Kanpur Nagar to forward her application giving her age, educational qualifications and details of dependent children. The S.S.P., Kanpur Nagar forwarded the details on 10th October, 2007.

5. It is stated that when no action was taken in the matter, a reminder was submitted by her to the S.S.P., Kanpur Nagar on 10th October, 2007, and that thereafter the petitioner made a detailed representation to the Secretary (Home) Government of U.P. Lucknow on 4.12.2007, requesting that she should be considered for appointment as Officer on Special Duty. After waiting for some time the petitioner sent a reminder on 24.1.2008 to the Secretary (Home) Government of U.P. Lucknow giving five instances, where the widows of the officers dying in harness, while on duty, were given appointment on Class-II posts as Officer on Special Duty. She cited the examples of (1) Smt. Sanju Yadav widow of late Shri Ramasraya Yadav (Deputy S.P.) working in the office of I.G. Zone, Bareilly; (2) Smt. Richa Singh widow of late Shri Pankaj Gautam (Deputy S.P.) working in the office of Police Headquarter, Allahabad; (3) Smt. Usha Yadav widow of late Shri Dhruv Lal Yadav (Deputy S.P.) working in the office of Director General of Police U.P. at Lucknow; (4) Smt. Nirupama Chaturvedi widow of late Shri Bal Krishna Chaturvedi (I.G.) working in the office of Police Headquarter, Allahabad and Smt. Madhuri Pandey working in the office of D.G.P. U.P. Government at Lucknow.

6. The petitioner again sent reminders to the Principal Secretary (Home) on 23.2.2008 and on 25.3.2008. In response she was communicated the decision of the State Government by the Inspector General of Police (Estt.) U.P. by letter dated 8th April, 2008 addressed to the Senior Superintendent of Police, Kanpur Nagar, to appoint her in accordance with her qualification on a Class-III post.

7. The petitioner on receiving the offer immediately made a representation to the Inspector General of Police (Estt.) Lucknow on 5.5.2008, requested again for appointment on the post of Officer on Special Duty citing the five illustrations, as above. She also reminded that her husband had shown exemplary courage and bravery in performance of his duties, and that he had died on duty in an operation to arrest the dacoits Shyam Lal Baheria and Akhilesh etc. She also referred to her excellent academic career, in Vanasthali Vidyapeeth Rajasthan from where she had obtained degree of B.Sc.; M.A. in Sociology (2007) from M.J.P. Ruhilkhand University, Bareilly U.P.; L.T. from Government College, Allahabad in 1993; M.Ed. from M.J.P. Ruhilkhand University in the year 2000 with First Class in Education. She is at present pursuing her further studies for Ph.D. in Education.

8. The Director General of Police made a request to the State Government on 21st July, 2008 to consider the recommendations made by the Police Establishment for appointing Shri Rajiv Kumar Rai son of Shri Awadhesh Kumar Rai, Deputy Superintendent of Police; Smt. Satvinder Jeet Kaur widow of Shri Balveer Singh, Addl. S.P. and the petitioner, for appointing them on the post of Officer on Special Duty in the pay scale of Rs.8000-275-13500. He requested to maintain dignity of the posts held by deceased officers. The State Government by its order dated 5th August, 2008 communicated its decision to appoint the petitioner, and one Smt. Alka Sinha widow of late Shri Dinkar Sinha, Addl. Superintendent of Police, on the vacant cadre post outside the purview of Public Service Commission, in the pay scale of Rs.6500-10500 (Class-III posts) and to send them for training while in service. The petitioner's representation dated 26.3.2008 was consequently rejected.

9. The petitioner thereafter has made several representations for her appointment on Class-II post. She did not join on the Class-III post and has prayed for direction in this writ petition to the State Government to appoint her as Officer on Special Duty in the pay scale of Rs.8000-13000/- (now revised to 15600-39100) so that justice be done to her and her late husband.

10. Shri R.N. Singh, learned counsel for the petitioner submits that in similar circumstances the State Government has given number of appointments on compassionate ground to the dependents of the deceased government servant as officer on special duty. He has apart from the instances cited as above, also relied upon the cases of Smt. Manju Srivastava widow of late Shri Rajiv Narayan Srivastava, D.I.G.; Smt. Birjish Ashraf widow of late Shri Jamal Ashraf, I.P.S., S.P.; Smt. Dipti Dixit widow of late Shri Prakash Chandra Dwivedi, Deputy S.P. and Smt. Rajkumari Dwivedi widow of late Shri Chandra Prakash Dwivedi, Deputy S.P. In all these cases the appointments were given by the State Government on Class-II posts, between 8.11.1993 to 29.9.2005.

11. Shri R.N. Singh submits that under Rule 5 of the Rules of 1974 the State Government can given appointment on any post except the post which is within the purview of the U.P. Public Service Commission, in relaxation to normal recruitment rules, provided the person fulfills educational qualifications prescribed for the post; is otherwise qualified for government service and makes an application within 5 years from the date of the death of the government servant.

12. He submits that there is no bar in the rules for giving appointment on ex-cadre post of Officer on Special Duty, which is Class-II post, as the appointment is to be given in relaxation to the normal recruitment rules. Shri Singh submits that the State Government must observe fairness and reasonableness in all its dealings and that the decision must stand on the scrutiny of the rule of equality. Where the State Government has in the post given appointment to the widows of number of police officers on the post of Officer on Special Duty, the petitioner should not be discriminated in receiving consideration for appointment, only on Class-III post. Shri Singh has relied upon the judgment in
Nitasha Paul Vs. Maharishi Dayanand University, Rohtak & Ors., JT
1996 (1) SC 636; a decision of the Full Bench of tis court in
P.K. Malik Vs. State of U.P. & Ors.
, 2005 (4) E.S.C. (All.)

2404 and in
Hari Ram & Anr. Vs. State of Haryana & Ors.
, (2010) 3 SCC 621. He submits that in all these three decisions the Supreme Court has held that the rule of Equality must guide the State in taking all its decisions affecting the rights of the citizens. In Nitasha Paul the Court was concerned with migration of the students from a university to another university. It was held that Vice Chancellor must abide by certain norms for deciding questions of migration, and that the norms must apply equally in case of every candidate. In P.K. Malik the Full Bench of this Court held that in the absence of any provision in any Government Orders, to give effect to an order with retrospective effect, the Court should grant the relief consistent with the decisions taken in respect of substantially equal situation. The discrimination only because the Instructors, who in other departments were given designation and pay of Lecturers from the date of initial appointment was arbitrary and violative of
Art.14
of the Constitution of India.

In
Hari Ram & Anr.
(Supra) the Supreme Court found that the State Government had erred in applying different standards for withholding of acquisition of the land. It was held that equality of citizen's rights is one of the fundamental pillars on which rule of law rests. All actions of the State have to be fair and for legitimate reasons.

13. Learned Standing Counsel appearing for the State has relied upon the counter affidavit of Shri Mohd. Irfan Ansari, Deputy Superintendent of Police, Establishment, U.P. Police Head Quarter, Allahabad. In para 3 (C) of the counter affidavit it is stated that the petitioner received Rs.1,47,986/- as GPR Fund (90%); Rs.19722/- as GPF Fund (10%); Rs.1,99,284/- as Leave Encashment; Rs.1,60,020/- as gratuity; Rs.1,27,820/- as Group Insurance amount, and Rs.1,80,000/- as accidental insurance; and in addition she is getting family pension of Rs.12560/- per month vide P.P.O. No.6389/P-53369/07 (R) dated 6.11.2009. The petitioner's husband died in an accident on Etawah-Kanpur highway while returning from Police Station Derapur Distt. Kanpur Dehat after arresting the accused. He was seriously injured in the accident and died in Fortis Hospital Noida, Gautam Budh Nagar on 24.6.2007. Recommendations were made to appoint the petitioner on the post of O.S.D., which is equivalent to the post of Deputy Superintendent of Police. The State Government, however, issued an order on 5.8.2008 directing to appoint her on a vacant post outside the purview of the U.P. Public Service Commission, under the Rules of 1974. The decision has been taken in accordance with the Rules of 1974 as the appointment could only be made against the existing vacancy and also on the post, which was outside the purview of U.P. Public service Commission. On her representation vide letter dated 5.8.2008 it was decided to appoint her on the vacant post only in the cadre in the pay scale of Rs.6500-10500/-.

14. In reply to the illustrations cited by petitioner, in which the State Government has given appointment to the widows of the deceased police officers, on the post of Officer on Special Duty, it is stated in para 17 of the counter affidavit that in the Police Department there is no post of Officer on Special Duty. There is no provision in Rules of 1942 to create an ex-cadre post of O.S.D. for making compassionate appointment. By order of His Excellency the Governor of U.P. certain posts of O.S.D. were created on temporary basis but it does not confer any right on the person to claim appointment on ex-cadre post. Learned Standing Counsel has relied upon the judgments of the Supreme Court in
Umesh Kumar Nagpal Vs. State of Haryana & Ors.
, 1994 (68) FLR 1191;
State of Bihar & Ors. Vs. Samsuz Zoha, JT
1996 (6) S.C. 7;
Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors.
, (1998) 5 SCC 192;
State of U.P. & Ors. Vs. Paras Nath
, (1998) 2 SCC 412;
I.G. (Karmik) & Ors. Vs. Prahalad Mani Tripathi
, (
2007) 6 SCC 162, and General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi & Ors.
, (2009) 7 SCC 205. He submits that in all these decisions the Supreme Court has laid down the legal principles based on the purpose of giving compassionate appointment and has interpreted various rules including the Rules of 1974 regarding constitutionality and permissibility of such appointments. The rules of compassionate appointments are by way of exception to general rules and must be given strict interpretation.

15.
In
National Institute of Technology v. Niraj Kumar Singh
,(2007) 2 SCC 481, the Supreme Court held :-

"14. Appointment on compassionate ground would be illegal in absence of any scheme providing therefor. Such scheme must be commensurate with the constitutional scheme of equality.

16. All public appointments must be in consonance with
Article 16
of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder."

16. This Court in
I.G. (Karmik) v. Prahalad Mani Tripathi
, (2007) 6 SCC 162 had held :-

"7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion."

17. The constitutional scheme of equality in public employment was explained in Secretary, State of Karnataka & Ors. Vs. Uma Devi, (2006) 4 SCC 1 as follows:-

"This Court then concluded in paragraphs 45 to 49:

45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.

46. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

47. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of
Article 16
should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

48. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.

49. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State "

18. The State Government has defended its decision to give compassionate appointment on Class-III post both on the interpretation of Rule 5 of the Rules of 1974, and also on the ground that there is no post in U.P. Police in any cadre in Class-II outside the purview of U.P. Public Service Commission. The petitioner has been offered appointment in the pay scale of Rs.6500-10500/- on a vacant post. There is no such policy of the State Government to create post of Officer on Special Duty on temporary basis for compassionate appointment based on the post held by the deceased police officer. There is no negative content in
Art.14
and
of the Constitution of India and thus the Court should not issue writ of mandamus, for perpetrating illegality in the name of equality. Equal treatment is given amongst equals, and if there has been any breach of rules, the Court may not insist upon committing same breach all over again in offering public employment.

19.
In
Uttaranchal Jal Sansthan Vs. Laxmi Devi
, (2009) 7 SCC 205 the Supreme Court held that equality cannot be applied, when it arises out of illegality.
Art.14
carries with it positive effect.

In
Chandigarh Administration Vs. Jagjit Singh
, (1995) 1 SCC 745 the Supreme Court held in paragraph 8 as follows:-

"Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal / unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again. The illegal / unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition."

20. The ratio of the judgment in Chandigarh Administration was followed in
Yadu Nandan Garg Vs. State of Rajasthan
, (1996) 1 SCC 334;
State of Haryana Vs. Ram Kumar Jain
, (1997) 3 SCC 321;
C.S.I.R. Vs. Dr. Ajai Kumar Jain
, (2000) 4 SCC 186; and
Narpat Singh Vs. Jaipur Development Authority
, (2002) 4 SCC 666. The principle can be applied in a different way, by saying that two wrongs do not make one right.

The Court should decide the cases on correct legal principles and not by multiplying illegality vide
Anand Buttons Vs. State of Haryana
,
AIR 2005 SC 565 and Kastha Niwarak GSS Maryadit Indore Vs. President Indore Development Authority
, AIR 2006 SC 1142.

21. It is not denied that the petitioner is receiving family pension of Rs.12507/- and has received about Rs.8 lacs towards service dues on the untimely and unfortunate death of her husband. She would thus be receiving about Rs.15,000/- in all per month out of benefits given on the services rendered by her husband.

22. Rule 5 of the Rules of 1974 provided as follows:-

"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."

23. The Rules of 1974, were framed by the State in terms of the proviso to
Art.309
of the Constitution of India and provide for appointment on compassionate grounds in suitable employment in government service on the post except the post, which is within the purview of U.P. Public Service Commission, in relaxation to normal recruitment rules. Class-II post in the State Government in the pay scale of Rs.8000-13500/- (now revised as Rs.15600-39100) are within the purview of U.P. Public Service Commission except those posts, which are created on temporary basis as Officers on Special Duty in the exigency of service.

24.
In
Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. (Supra
) the Supreme Court considered the orders passed by the High court by which directions were given to appoint the applicants, as dependents of the government servant dying in harness in the Education Department on Class-III post provided he possesses necessary qualifications for the post. The Supreme court held interpreting Regulations 101, 103, 104, 106, 107 and Regulation 105-A of Chapter III of the Regulations made under Section 16G of the U.P. Intermediate education Act that if vacancy in non-teaching cadre for the time being does not exist in any recognised aided institutions, then the appointment shall be made against the supernumerary non-teaching post of Class-IV category and such post shall be deemed to have been created for this purpose and be continued till a vacancy becomes available. It was held that object underlying the provision for grant of compassionat4e appointment is to enable the family of the deceased employee, to tide over sudden financial crisis resultant due to death of bread earner, which has left the family in penury and without any means of livelihood. Out of humanitarian consideration and having regard to the fact, that unless some source of livelihood is provided family would not be able to both ends meets, provisions are made for giving gainful employment to one of the dependent of the deceased, which may be eligible for such appointment. Such a provision makes a departure from the general provision providing for employment, after following particular procedure. The rule is in nature of exception to the general provision. An exception cannot subsume main provision to which its exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. The compassionate appointment should not entirely interfere with the right of the persons, who are eligible for appointment to seek employment against the post, which would have been available to them but for the provisions of the enabling appointments made on compassionate ground of the dependent of the deceased employee.

25. The rule of compassionate appointment has an object to give relief against destitution. It should not be treated as rule to give alternate employment or an employment commensurate with the post held by the deceased government servant. It is not by way of giving similarly placed life to the dependents of the deceased by creating a supernumerary or ex-cadre post. The object of giving compassionate appointment should not be lost while relaxing the rules.

26.
In the same judgment in
Pushpendra Kumar
(Supra) the Supreme court held that there may be more meritorious person than the dependent of the deceased employee, who would be deprived of their right of being considered for such appointment and thus the appointment on Class-IV post by way of providing immediate relief should not be misunderstood to provide an employment with equal pay of the post, which was held by the deceased.

27. The appointment of a widow of the Deputy Superintendent of Police on the post equivalent to the post held by her husband, on the ground that her husband died in performance of his duties and that her qualifications justifies such appointment, would be a negation of the object and purpose of compassionate appointment. If such considerations are to be taken into account, the widow of IPS Officer should be offered the post equivalent to IPS and that a widow of Addl. District Judge should be given a similar post, if she has LLB degree. The rule cannot be stretched beyond its purpose, to violate
Art.14
and
of the Constitution of India.

28. The illustrations given in representation of the petitioner and para 33 of the writ petition are apparently illustrations of compassionate appointment given by stretching the rules beyond the object and purpose of enacting the rule of compassionate appointment. We do not have a case of any person, who was given appointment after the year 2005 on the post of Officer on Special Duty. The circumstances in which the rules were relaxed, are not before us nor are we required to examine it. A comparison will neither serve rule of equality nor rule of equity. It is well known principle of law that two wrongs do not make one right and that illegal act should not be perpetrated in the name of serving the principle of equality. The equality is served of adhering to the rule of law, and not by violating rule of law.

29. The terminal benefits of her husband received by the petitioner, and the family pension does not place her in such a financial distress, that the Court may consider to grant her an appointment equal to the post and status as that of her husband. We are not dealing with the case of providing maintenance but a case to provide immediate financial relief to a person, who has lost her husband in unfortunate circumstances. The compassion in such case should not overreach the purpose for which the rule has been enacted.

30. The petitioner has been offered appointment on Class-III post in the pay scale of Rs.6500-10500/-. By the interim order dated 27.7.2010 she was given an option to join on the post subject to her rights, and the result of the writ petition. We are informed by Shri R.N. Singh that she has not chosen to join on the post offered to her.

31. Before parting with the matter, we may observe that some of the appointments given by the State Government on compassionate grounds, on the post of Officer on Special Duty, to the dependents of the deceased police officers between 1993 to 2005 have raised issues of equal treatment of the dependents in the matter of compassionate appointment. The appointments made selectively in respect of some of the dependents of the deceased police officers, for the reasons, which we have not found it proper to inquire are likely to raise issues of equality and will continue to cause apprehensions in the minds of similarly situate dependents of public servants. We thus find it appropriate and expect that the State Government will either amend the Rules of 1974, or to provide for guidelines in respect of such appointments. The State Government may consider to grant relaxations under such guidelines. The amendments of the rules or prescription of guidelines will put rest to apprehensions and speculations in such appointments and will avoid litigation. The State Government must demonstrate fairness and reasonableness in such matters.

32. The writ petition is dismissed with liberty to the petitioner to join on the Class-III post offered to her. If due to lapse of time the offer has been withdrawn, the State Government will make the offer again to the petitioner, to join.

Dt.29.01.2011

SP/