Rajinder Kumar Khera vs State of Haryana and Another

V.K. Bali, J.—The only quests that has been mooted out in this writ is as to whether Mr. Rajinder Kumar Khera in wake of the facts and circumstances of this case should have been appointed to the post of Inspector Cooperative Societies on compassionate basis or on the past of Sub Inspector. The basic contention in support of the petitioner is that even though appointment on compassionate grounds is in discretion of the Government, the said discretion with regard to persons of equally situate has to be applied universally. In other words, the Government cannot in the grab of this discretion differentiate persons situated similarly and give higher appointment to their chosen favourites and lower appointments to these who are unable to exercise influence in the corridors of power. The question noted above emanates from the admitted facts enumerated hereinafter.

The father of the petitioner, late Shri Barkat Ram Khera who was holding the post of Inspector in the department of Cooperative Societies expired on 16th of December, 1989 while he was on duly when he was posted as Inspector Coop. Marketing Society Charkhi Dadri Vide instructions issued by the Government on 22nd of December, 1970, one member of the deceased family who dies while in service has to be considered for absorption in Government service. The aforesaid instructions have been annexed with the petition as Annexure P-1. The instructions were later modified vide Government letter dated 13th of July, 1971. The same have been annexed with the written statement as Annexure R-l. The petitioner passed his B.A. Examination with Mathematics and Economics and was fully qualified for the post of Inspector. The mother of the petitioner thus, applied that her son should be appointed as Inspector. The said representation was made through Audit Officer, Coop. Societies, Bhiwani. The said officer recommended the case of the petitioner for the post of Inspector as he was fully eligible in all respects. The said recommendation was sent to Registrar, Coop. Societies, Haryana, respondent No. 2 herein. It is the case of the petitioner that without considering qualifications of the petitioner respondent No. 2 recommended the case of the petitioner that without considering qualifications of the petitioner respondent No. 2 recommended the case of the petitioner to the Chief Secretary for the post of Sub Inspector instead of Inspector. The mother of the petitioner met the Registrar, Co-operative Societies and requested that her son who was eligible for the post of Inspector be recommended for the post of Inspector. Her entreaties made to respondent No. 2, however, brought no tangible results. She then reiterated her request to the Chief Secretary vide her representation dated 17th of October, 1990. (Annexure P-2). This was followed by number of representations thereafter. Since, however, the family was hard pressed, petitioner joined his services on the post of Sub Inspector and being convinced that step-motherly treatment was meted out to him, filed the present petition for the relief indicated above.

The only contention raised by Mr. P.S. Saini, the learned Counsel representing the petitioner is that petitioner was able to convince the respondents that he was situated like those who were given the post of Inspector but only in the case of the petitioner respondents thought its proper to accommodate him on the post of Sub Inspector. In the present petition in paragraph 16, names of six persons have been given, who it is pleaded were appointed to the post of Inspector and who could not on the facts stake better claim then the petitioner. The persons appointed on the post of Inspector with their dates are as follows :-

Mam Raj Appointed in 1982 as Inspector.

Yash Pal Appointed in 1983 as Inspector.

Mahabir Sharma Appointed in 1987 as Inspector.

Inder Singh Appointed in 1992 as Inspector.

Sunil Kumar Appointed in 1992 as Inspector.

Sumer Chand Appointed in 1991 as Inspector.

It is further pleaded in the paragraph that all the above six persons were given appointment as Inspector Coop. Societies on the death of their father working as Inspector, Cooperative Societies in Cooperative Department. This unequal treatment given to the petitioner offends Article 14 of the Constitution of India contends the learned Counsel. In the reply that has been filed on behalf of the respondents, averments made in paragraphs 16 in the petition have not been denied. -It has been pleaded in the written statement that officials at Sr. No. 1, 3, and 5 were appointed as Inspector, Cooperative Societies, as their fathers were working at the time of their death. As regards Yash Pal who is shown at No. 2, his father was Deputy Registrar and not Inspector. It is further stated in the corresponding para of the written statement that appointment given to person shown at No. 3" could not be verified due to the wrong facts. It is also pleaded that the appointment of the officials afore-mentioned have been made to the post of Inspector, Cooperative Societies, but as a matter of fact, the employment to the dependent of the deceased employee under the ex-gratia scheme is given as a matter of grace and not as a matter of right and if the petitioner is interested in the higher post, he can compete in the examination and when it is held by the competent body.

As mentioned above, the only question that, thus, needs determination is as to whether, even though, it be an ex-gratia scheme the case can discriminately apply between person similarly situate.

It is by now settled proposition of law that the discretion vested in the Government is subject to constitutional and public limitations. The action of the Government must be in conformity with some principle which may test to reason and relevance. Way back in 1979 Apex Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, , after relying upon number of earlier judgments held :-

"It must, therefore, follow as a necessary corollary from the principle of equality enshrined in Article 14 though the State is entitled to refuse to enter into relationship with any one, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principles which meets that test of reasonableness and non-discrimination and any departure from such standard of principle would be invalid unless it can be supported or justified on some rational and non-discriminatory ground."

It is, thus, apparent from the observations of the Supreme Court quoted above that even in the matter of discretion, the Government cannot discriminate between the persons equally situated. It has been proved in this case on account of non-denial of pleadings of the petitioner fully detailed above that if not more, than atleast four persons who were equally situate as that of the petitioner were appointed to the post of Inspector. If unfettered discretion is permitted to vest in the State and there are no norms laid down, it would necessarily result in favouring those who are yielding influence in the corridors of powers and those ordinary citizens who do not have such an influence would be treated entirely in a different manner. Such a course cannot be permitted as that would certainly violate the equally clause incorporated in Article 14 of the Constitution of India.

For the reasons stated above, this petition is allowed. A direction is issued to the respondents of offer to the petitioner the post of Inspector if he otherwise qualifies for the post and might have good antecedents to the post under contention. It is not possible to give a direction to the respondents at this state to treat the petitioner as having been appointed Inspector from the date when he was offered the post of Sub Inspector and therefore, on the basis of the judgment rendered today in his favour, he shall not be entitled to claim difference in pay or seniority. However, that would take a very long time in offering the State would not mean that the post to the petitioner and therefore, a further direction is issued to the respondents to do the needful exercise within a couple of months from today. Parties are left to bear their own costs.