Vimal Kumar vs State Of Uttar Pradesh And 2 Others

Heard Sri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel for the respondents.

The impugned order dated 15.06.2020 grants one month notice commencing from 20.06.2020 and ending on 19.07.2020 to the petitioner. The impugned order dated 15.06.2020 records that the services of the petitioner shall stand terminated upon expiration of the said period of notice. After the expiry of the period in the order the services of the petitioner stood terminated. The order consequential to the termination order was issued on 19.07.2020 which is also impugned in the writ petition.

The petitioner was appointed on 14.06.2018 under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Rules of 1974") on the post of Assistant Clerk which is a Class III post.

Rule 5 of the Rules of 1974 being relevant to the controversy is extracted hereunder for ease of reference:

"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, Provided that in case appointment is to be made on a post for which typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in typewriting, he shall be appointed subject to the condition that he would acquire the requisite speed or 25 words per minute in typewriting well within one year and if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the requisite speed in typewriting and if in the extended period also he again fails to acquire the requisite speed in typewriting, his services shall be dispensed with.

Provided further that in case appointment is to be made on a post for which the knowledge of computed operation and typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in computed operation and typewriting, he shall be appointed subject to the condition that he would acquire the 'CCC' certificate in computer operation awarded by the DOEACC Society for a certificate equivalent thereto from an Institution recognised by the Government together with the required speed of 25 words per minute in typewriting well within one year and if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the required certificate in computer operation and the required speed in typewriting and if in the extended period also he again fails to acquire the required certificate in computer operation and the required speed in typewriting, his services shall be dispensed with."

Typewriting speed is thus prescribed as an essential qualification for the post of Assistant Clerk to which the petitioner was appointed.

The competent authority by notice dated 07.06.2019 appointed 20.04.2019 as the date for typing test. The petitioner did not appear in the typing test on 20.04.2019. He made an application for postponement of the date claiming the he was unwell. On account of the failure of the petitioner to pass the typing test on the prescribed date a show cause notice was issued to the petitioner on 09.07.2019. The petitioner was asked to show cause as to why his increments be not stopped on account of failure to acquire the speed of 25 words per minute of typing within one year of his appointment. The notice was relatable to Rule 5 of Rules of 1974. The notice dated 09.07.2019 granted the petitioner additional period of one year to qualify the typing test.

By communication dated 27.11.2019 the typing test was scheduled on 16.12.2019. The petitioner was present at the venue of test on 16.12.2019, but did not appear in the test. He submitted a fresh application seeking further time to increase his typing speed. At the request of the petitioner the fresh date fixed for the typing test was 31.12.2019. On 31.12.2019 the petitioner appeared in the typing test, however he submitted another application on date seeking further time for enhancing his typing speed.

The application of the petitioner was again considered by the authority and the typing test was scheduled for 31.01.2020. The petitioner appeared in the typing test on 31.01.2020 and achieved a typing speed on 13.4 words per minute. This was way below the statutory requirement of typing speed of 25 words per minute. After recording his failure in the typing test held on 31.01.2020 the communication dated 14.02.2020 granted another opportunity to the petitioner and scheduled a test on 12.06.2020. In the test conducted on 12.06.2020 the petitioner fared no better. He achieved a typing speed of 11.06 words per minute. The petitioner thus failed in the aforesaid typing test.

These facts which are beyond the pale of dispute are recorded in the impugned order itself.

The impugned order noticed that the requirement of achieving minimum typing speed of 25 words per minute is a mandatory requirement of the statute, and an essential qualification for a person appointed on compassionate grounds. The petitioner having failed to achieve the requisite typing speed does not possess the eligibility to be appointed under the Rules of 1974.

On the foot of such reasons the impugned order dated 15.06.2020 grants one month notice of termination to the petitioner, with a stipulation that the services of the petitioner would stand terminated immediately upon the expiry of the aforesaid period the termination order was issued on 19.07.2020.

The petitioner was appointed on the post of Junior Assistant on compassionate grounds.

Appointments under compassionate grounds are an exception to the regular mode of appointment to public posts contemplated under Article 16 of the Constitution of India, as well as the Service Rules applicable to the concerned departments. The purpose of grant of compassionate appointment is to provide immediate financial support to the family of the deceased employee which is on the brink of financial penury on account of loss of the bread earner. Compassionate appointments cannot be a regular source of recruitment. While granting appointment on compassionate grounds under the Rules of 1974, the authorities have to stringently adhere to the minimum eligibility conditions which are required for appointment on a particular post. Fulfillment of minimum eligibility criteria for appointment to a post is a mandatory requirement even under the compassionate grounds rules. Without satisfying the minimum eligibility criteria for the post, an appointment under compassionate grounds cannot be substantive in nature. Rules of 1974 provide for relaxation in procedures for appointment, but do not contemplate deviations from eligibility conditions for the post.

In the instant controversy it is admitted between the parties that type writing is an essential qualification for the post. The requisite proficiency in type writing has been specifically prescribed under the Rules of 1974. The schedule of the typing test is prescribed in the statute. Rule 5 of the Rules of 1974 contemplates two opportunities to a candidate to achieve the required speed of 25 words per minute in type writing. The first test is to be held within one year of the appointment, and the second test has to be held within a further period of one year. The Rule categorically provides that the services of an appointee shall be dispensed with in case he does not attain the requisite typing speed.

In the instant case the petitioner was given the first opportunity to appear in the typing test on 24.06.2019. The petitioner of his own violation did not appear in the typing test, and made an application for postponement of the aforesaid test. The authorities postponed the typing test on repeated occasions at the requests of the petitioner. Several opportunities were granted to the petitioner to appear in the typing test. The petitioner finally participated in the typing test on 31.12.2019, but failed to achieve requisite typing speed. Another chance was given to him by holding typing test on 31.01.2020. The petitioner failed in the aforesaid test as well. The next opportunity was given to the petitioner on 12.06.2020. Yet again the petitioner failed to qualify, as he did not possess the requisite typing speed.

The schedule for holding typing tests is providing under Rule 5 of the Rules of 1974. The schedule cannot be altered by an arrangement between the candidate and the authorities. Postponement of typing test at the behest of the petitioner would amount to a waiver of the first chance on part of the petitioner. The petitioner cannot waive his chance on the one hand, and blame the authority for delay in holding the examination on the other. The rule of equity is that one cannot take advantage of his wrong. The conduct of the respondent authorities also needs to be censured. The authorities as stated earlier cannot be have a private understanding with the candidate and schedule the tests and number of chances to a candidate contrary to the statutory provisions.

Two opportunities are to be granted to a candidate for clearing the typing test under Rule 5. The first opportunity has to be given and availed within the first year of service. The second opportunity has to be availed within a further period of one year. In other words within two years of his appointment the petitioner should clear the typing test of achieving the minimum level of proficiency in typing.

Admittedly the petitioner failed to clear the eligibility test and achieve the requisite typing speed as contemplated under the rules within two years from the date of his appointment. In fact more than two chances and time in excess of two years was granted to him by the department. The respondents cannot exceed or enlarge the time period or increase the opportunities beyond that is in the statute.

Rules of 1974 disclose the nature of the appointment. A perusal thereof shows that the appointment initially is a conditional one subject to the candidate achieving the minimum eligibility requirements. The Rules further provide that failure to achieve the minimum eligibility requirement will result in termination of his service.

The argument that the petitioner was deemed to be confirmed since more than two years had expired is misconceived. In the absence of failure to acquire the minimum eligibility conditions for appointment, the concept on deemed confirmation cannot be applied to the case of the petitioner. There is authority to hold that compassionate ground appointments are substantive in nature. However such authorities shall not be applicable to the facts where the appointee does not possess the minimum eligibility criteria for appointment to the concerned post.

There is no infirmity in the impugned order terminating the services of the petitioner after grant of one month notice period. The impugned orders dated 15.06.2020 and 19.07.2020 are not liable to be interfered with and the prayer for quashment of the impugned orders is declined.

Faced with this learned counsel for the petitioner submits that the case of the petitioner for appointment on a lower post for which he possess the qualifications may be considered. The petitioner has made a specific prayer in this regard in the writ petition.

Learned Standing Counsel on the other hand contends that there is no concept of perennial compassion. Only one chance can be granted for appointment on compassionate grounds. The petitioner had taken his chance and failed to achieve the minimum eligibility qualifications for appointment. His services have been lawfully terminated.

In the wake of the aforesaid submissions this Court feels that eligibility for appointment on lower post after the services of the petitioner have been terminated, is a matter which may be considered in the first instance by the competent authority.

Without going into the merits of the submissions, the matter is remitted to the respondent no. 2, District Magistrate, Sambhal. The respondent no. 2, District Magistrate, Sambhal shall decide the representation of the petitioner for appointment on a lower post under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, in accordance with law within a period of four months from the date of production of a computer generated copy of this order, downloaded from the official website of the High Court Allahabad.

The computer generated copy of such order be self attested by the petitioners (party concerned) along with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

The writ petition is disposed of finally with the above directions.