Hanif Uddin and Another vs Chairman Zila Parishad Hamirpur and Another

I. M. Quddnsi, J.—The petitioners have filed the present writ petition with the following reliefs :

�(i) issue a suitable writ, order or direction in the nature of a writ of mandamus directing the respondents to decide the representations of the petitioners.

(ii) issue a suitable writ, order or direction in the nature of a writ of mandamus directing the respondents to appoint any one the petitioners in a suitable post on compassionate ground, (iii) issue a suitable writ, order or direction as this Hon''ble Court may deem fit and proper in the circumstances of the case, and (iv) to award the costs of the petition to the petitioners.

Heard learned counsel for the petitioners Sri Vinay Khare and the learned counsel for respondent No. 1 and the learned Standing Counsel for the respondent No. 2.

The brief facts of the case are that the father of petitioner was working as Caukidar, namely, ''Munna'' in Zila Parishad, Hamirpur since 1955. On 991980 he was doing duty at Dak Bungalow, Mahoba, district Hamirpur when he was taking out water from the well he slipped into the well and died. At that time he had completed 25 years of service but before attaining the age of superannuation. He left behind his widow and five children.

It has been averred in the writ petition that except father of the petitioners, there was no other earning member in his family and, as such, his widow, namely Smt. Zubeda Khatoon made representation to the SubDivisional Magistrate, Mahoba an 10121981. Thereafter she made other various representations to the higher authorities, i. e., Chairman, Zila Parishad, Hamirpur, District Vfagistrate, Hamirpur and the Commissioner, Jhansi Division. In the representations she made prayer for appointment of her eldest son who is petitioner No 2 in the present writ petition in place of her deceased husband on compassationate grounds. In spite of her best efforts no action was taken. Thereafter petitioner No. 1 also made representation to the District Magistrate, Hamirpur and the Chairman, Zila Parishad, Hamirpur. it has also been averred in the writ petition that one Sheonath Nigam, Clerk, Parishad also died in the year 3983, his son Virendra Kumar Nigam was given employment on compassationate grounds, keeping the representation of the petitioners and their mother pending.

In the counteraffidavit filed on behalf of Chairman, Zila Parishad Hamirpur it has been admitted that aforesaid Sheonath Nigam had died in the year 1983 and his son had applied for appointment on compassationate ground and he was given employment against clear vacancy but no order could be passed on the representations made by the widow of the deceased and her sons who are the petitioners in the present writ petition. The reasons for such action have been mentioned to the effect that dying in harness rules were made applicable to the employees of the Zila Parishad vide Government Order No. I13D/3323B/(l)84, dated 5th July, 1984 but no date of enforcement was specifically provide^ in the same. Respondent No. 1 sought clarification from the State Government and also from the Respondent No. 2 (District Magistrate, Hamirpur) and on the recommendation and advice of the Respondent; No. 2 that as no specific date of enforcement was provided in the said Government Order it may be presumed that the same shall be made effective within one year of the date of issue of the aforesaid G. O. dated 571984 and hence accordingly Virendra Kumar Nigam only was given employment. The relevant portion of Paragraph 5 of the counteraffidavit is quoted below :

�5. That in reply to the contents of Paragraph Nos. 9, 10 and 11 of the writ petition it is most respectfully submitted that the alleged Dying in Harness Rules were made applicable for the employees of Zila Parishad vide Government Order No. 113D/ 33223B (i>84, dated 571984 but no date of enforcement was specifically provided in the same, it is further submitted that the alleged employee Sheo Nath Nigam had also died in the year 1983 and his son has also, applied under the aforesaid Rules in which the respondent No. 1 had sought clarification from the State Government and also from the respondent No, 2 on the recommendation and advice of the respondent No. 2 that as there is no specific date of enforcement is provided with retrospective effect hence it may be presumed that the same shall be applicable within one year of the date of issuing the aforesaid Government Order dated 571984 and accordingly Virendta Kumar Nigara was given employment on the clear vacancy but no orders could be passed on the alleged representations as the deceased Chawkidar Munna had died long before in 1980 and there was no rule to give employment to the petitioner under the aforesaid Rules.�

It has also been indicated in the counteraffidavit that various representations moved by the petitioners and their mother were rejected by the respondent No. 1 vide order dated 18111988 and the petitioners were duly communicated about the same vide letter dated 20121988. It hi; been further averred in the counter affidavit that the State Government vide Government Order dated 251985 provided the date of applicability of the Dying in Harness Rules as 5th July, 1984.

However, a perusal of the Government Orders dated 571984 and 251985 as contained in Annexure Cland CA.2 to the counteraffidavit respectively shows that there is no mention in these Government Orders about the applicability of the Dying in Harness Rules in the Zila Parishads. The Government Order dated 571984 provides that the Government has decided that in case any employee of the Zila Parishad dies during his service period, his son or any other member of his family shall be appointed on post for which he possesses requisite educational qualifications and the procedure for, recruitment prescribed shall not be applicable in respect of such persons and there shall be relaxation of agelimit also according to need for him. It has further been indicated that those orders would not be applicable on the posts which come within the purview of Public Service Commission.

From the above discussion it is also clear that there was no date of enforcement of the Dying in Harness Rules in the Zila Parishad when the aforesaid Virendra Kumar Nigam was given employment on compassationate ground in place of his deceased father who died in harness in the year 1983. At the same time one of the petitioners could have given appointment in similar circumstances but the Respondent No. 1 discriminated the petitioners and their mother with aforesaid Virendra Kumar Nigam. The advice sought from the Respondent No. 2 and the advice so given was an arbitrary action which was not required under any provisions of law. The presumption to the effect that if no specific date of enforcement of Dying in Harness Rules is provided, the same shall be applicable within one year of the date of issue of the Government Order dated 571984 was not a lawful presumption. The dependants of the deceased Munna and the dependents of the deceased Sheonath Nigam were similarly situated persons and thus formed one class and hence they should not have been discriminated to each other.

It is necessary to indicate here that the recruitment and other service conditions of the employees of the Zila Parishad are governed by the U. P. Zila Parishad Service Rules, 1970. In Rule 9 of the said Rules it has been provided that no person shall be liable for direct recruitment to any of the post mentioned in Schedule A unless he possesses qualifications prescribed therefrom in the said Schedule. However, second proviso to this rule provides that the prescribed qualification may, after prior mention h is been made unless apply in the advertisement, circle or any ot^er notice inviting applications for recruitment be relaxed by the appointing authority in respect of ministerial post also but with the prior approval of the District Magistrate. Subrule (1) of Rule 10 provides that a candidate for direct recruitment to any post shown in column 2 of Schedule ''A'' must have attained the minimum age shown in column A and must not have attained the minimum age shown in column 6 of that Schedule on the first day of January of the year in which the applications for recruitment to that post are invited. Subrule (2) of Rule 10 provides that the agelimit may he relaxed by the appointing authority instead of the ministerial post and also with the prior approval of the District Magistrate. In view of these provisions it is clear that the appointing authority has been conferred the power to make relaxation in the qualifications as well as agelimit with the prior approval of the District Magistrate in cases where the appointing authority thinks fit to make such relaxation. No doubt the relaxation has been made in the aforesaid case of Virendra Kumar Nigam as his father late Sheo Nath Nigam died in harness in the year 1983. But in the case of the petitioners whose father died in the year 1980, no such relaxation has been made while both the persons were similarly situated persons and their cases were also similar. Hence in case of dependent of late Sheo Nath Nigam, who died in harness, has been given employment on compassationate ground, one of the dependents of the deceased late �Munna� was also entitled to get employment on compassionate ground.

In the matter of Hansraj H. Jain v. State of Maharashtra, reported in (1993) 3 SCC 634 the Supreme Court had held that the public authorities and the Government are bound to act reasonably and fairly and each action of such authorities must pass the test of reasonableness.

In the case of Smt. Sushma Gosain and others v. Union of India and others, 1989 (4) SCC 468 the Hon''ble Supreme Court has held as under:

�9. We consider that it must be stated unequivocally that in all claims for appointment on compassationate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassationate 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 supernumery post should be created to accommodate the applicant.�

A similar view was taken in the matter of Smt. Phoolwati v. Union of India and others, AIR 1991 SC 469 following the view taken in Smt. Sushma Gosain''s case (supra).

In view of the above discussion the writ petition succeeds and is allowed. The respondents are directed that any one of the petitioners shall be given appointment on compassationate ground in a suitable post commensurate with his educational qualifications within a period of two months from the date of presentation of a certified copy of this order before them. If no suitable post is available for such appointment a supernumery post will be created to accommodate any one of two petitioners. There will be no order as to costs.