STATE OF U.P. vs. MOHD. REHAN KHAN

SLP 1563/2021 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No 5212 of 2022 (Arising out of SLP (C) No 1563 of 2021) State of Uttar Pradesh and Others Appellants Versus Mohd Rehan Khan Respondent W I T H Civil Appeal No 5213 of 2022 (Arising out of SLP (C) No 5524 of 2021) J U D G M E N T Dr Dhananjaya Y Chandrachud, J 1 Leave granted. Signature Not Verified Digitally signed by CHETAN KUMAR Date: 2023.06.02 15:42:13 IST Reason: SLP 1563/2021 2 2 The appeal arises out of a judgment of a Division Bench of the Allahabad High Court dated 25 August 2020. The Division Bench dismissed the intra- court appeal filed by the appellants against the judgment of a Single Judge of the High Court dated 5 November 2019 directing the appellants to consider the candidature of the respondent for appointment to a Class IV post on compassionate grounds. 3 The father of the respondent was employed by the Government of Uttar Pradesh as a driver in the Office of Economics and Statistics Officer at Shahjahanpur. He died in harness in 2015. The respondent was appointed on a ‘temporary basis’ in the Class III post of a Junior Assistant at the Office of Economics and Statistics, Shahjahanpur. The letter of appointment dated 30 May 2016 stipulates that the respondent has to acquire a typing speed of twenty five words per minute within a year in terms of the condition stipulated in Rule 5(1) of the Uttar Pradesh Recruitment of Dependents of Government 1 Servants Dying in Harness (Tenth Amendment) Rules 2014 . Clause 4 of the letter of appointment is in the following terms: “4. As per the condition stipulated in Rule 5(1) of the Uttar Pradesh 1 “2014 Rules” SLP 1563/2021 3 Recruitment of Dependants of Government Servants Dying in Harness (Tenth Amendment) Rules, 2014, the appointed person is expected to acquire, within one year, the typing speed of 25 words per minute and CCC certificate in computer operation by D.O.E.A.C.C. Society or certificate declared to be equivalent thereto by the Government and in case he fails to do so, then his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the requisite speed of typing, and if in the extended period also he again fails to acquire the requisite speed in typing, his services shall be dispensed with.” 4 Rule 5 of the Dying in Harness Rules as amended in 2014 by the Tenth Amendment to the Rules, which was notified on 17 January 2014, inter alia , contains the following stipulation: “Provided further that in case appointment is to be made on a post for which the knowledge of computer operation and typewriting has been prescribed as an essential qualification and the dependent of the Government servant does not possess the required proficiency in computer 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 or 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 in required certificate computer operation and the in required speed typewriting, his services shall be dispensed with.” 5 The respondent acquired a certificate of proficiency in computers. He failed in his first attempt of the typing test. He was intimated by an OM dated 20 March 2017 that he had a typing speed of only 6 words per minute and had SLP 1563/2021 4 therefore not achieved the requisite speed of 25 words per minute. Thereafter, he was given a second opportunity to clear the typing test on 7 August 2019. On 8 August 2019, it was notified that the respondent did not clear the typing test. On 11 September 2019, the Deputy Director (Economic and Statistics) of Bareilly Division terminated the services of the respondent. 6 The respondent instituted a writ petition under Article 226 of the Constitution before the High Court of Judicature at Allahabad seeking to quash the order dated 11 September 2019 terminating the employment of the respondent and a mandamus directing the petitioners to reinstate him in service. It was the contention of the respondent that while he was taking the typing test, the computer system had malfunctioned, and that the termination order was issued without issuing a show cause notice. By a judgment dated 5 November 2019, a Single Judge of the High Court relied upon an earlier 23 decision in Mukul Sagar v. State of Uttar Pradesh where a Single Judge of the Allahabad High Court held that though the employee appointed on compassionate grounds would have to be terminated from the Class III post 2 Writ Petition No. 12737/2018 decided on 4 July 2018 3 Writ Petition No 12737/2018 decided on 4 July 2018 SLP 1563/2021 5 in terms of Rule 5 of the 2014 Rules for non-fulfillment of the prescribed qualifications, the authorities could have considered the claim for appointment to a Class IV post. It was observed that such an interpretation would be in consonance with the objective of compassionate appointment. The Single Judge disposed the writ petition with the direction that the termination of the respondent be revisited in view of the observations made in Mukul Sagar (supra) and to pass a fresh order within two months. The Single Judge directed as follows: “In the facts and circumstances, noticed above, this writ petition also stands disposed of with a direction upon the respondent no. 3 to revisit the issue, keeping in view the observation made by this Court in the aforesaid order dated 4.7.2018, and pass a fresh order, within a period of two months from the date of presentation of certified copy of this order. The order impugned in this petition shall remain subject to the fresh orders to be passed by the authority concerned.” 7 The Division Bench of the Allahabad High Court dismissed the appeal on 25 August 2020 observing that the respondent has already been terminated from service and that the Single Judge had only directed that the case of the respondent be reconsidered for appointment on compassionate grounds afresh on a post in Class-IV cadre. SLP 1563/2021 6 8 We have heard Mr Ankit Goel, counsel appearing on behalf of the appellant and Mr Danish Zubair Khan and Mr Jayprakash Somani, counsel for the respondents. 9 The appointment order of the respondent stipulated that he would be required to obtain a certificate in regard to knowledge of computers and to pass the typing speed test with a speed of 25 words per minute within a prescribed period. The proviso to Rule 5(1) of the 2014 Rules which has been extracted above provides that if a candidate fails to achieve a typing speed of 25 words per minute within a year, the annual increment would be withheld and a further period of one year would be granted to the candidate to acquire the requisite speed. If a candidate fails to do so within the extended period, the Rules provide that his services shall be dispensed with. A similar stipulation operates in regard to obtaining a certificate of proficiency in computers. The termination of the services of the respondent due to his failure to clear the typing test was hence in terms of the stipulation contained in the order of SLP 1563/2021 7 appointment as well as the provisions of Rule 5(1) of the 2014 Rules. 10 The direction of the High Court that the respondent be considered for a Class IV post is not consistent with the provisions of law. There is no vested right to compassionate appointment. Compassionate appointment, it is well settled, is an exception to Article 16 of the Constitution which embodies the 4 principle of equality of opportunity in matters of public employment. Compassionate appointment is offered to a person belonging to the family of a deceased employee who has died in harness to tide over the financial crisis resulting from the death of the wage earner of the family. The terms on which compassionate appointment is offered under the rules or scheme governing compassionate appointment have to be complied with. 11 The respondent sought appointment as an Assistant in the office of Economics and Statistics and was granted such an appointment. An employee who has been appointed on compassionate grounds is not granted 4 General Manager, State Bank of India v. Anju Jain, (2008) 8 SCC 475; V. Sivamurthy v. State of AP, (2008) 13 SCC 730 SLP 1563/2021 8 an exception from the service conditions that have to be complied under the relevant Rules. Rules relating to compassionate appointment must be interpreted bearing in mind that it is an exception to the principle of equality of 5 opportunity. Compassionate appointments provide an entry-level concession. The appointment cannot be used to seek subsequent concessions merely because the appointment was made on compassionate grounds. Any concession subsequently provided, unless the rules stipulate, would be violative of the principle envisaged in Articles 14 and 16 of the Constitution. Appointment through compassionate grounds only grants the family of the employee who dies in harness an entry into the services, which is one of the many modes of appointment. Once appointed, all the employees irrespective of the mode of appointment are to be treated alike, unless the relevant Rules stipulate otherwise. Rule 5(1)(i) of the 2014 Rules stipulates that for a person to be appointed to a post on compassionate grounds, he should fulfill the prescribed educational qualification. The relevant extract of rule 5 reads as follows: “ 5. (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 5 Uttaranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205; State of Jharkhand v. Shiv Karampal Sahu, (2009) 11 SCC 453. SLP 1563/2021 9 Government, the 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 purpose, be given a suitable employment in Government Service on a post except which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person- Fulfils the educational qualifications prescribed for the (i) post .” (ii) (emphasis supplied) 12 Rule 5(1)(i) prescribes an entry level eligibility criteria. The first proviso to Rule 5 prescribes an additional qualification if appointment is made to a post for which knowledge of computers and typing are prescribed as an essential qualification. This qualification must be acquired by the appointee within the time period stipulated in the Rules. Though the respondent possessed the educational qualification prescribed under the Rules, he did not acquire the qualifications prescribed under the provisos to Rule 5(1)(i). This Court has in the past explained the relevance of both the eligibility criteria and additional 6 qualifications. The respondent ought to have possessed both the eligibility criteria and qualifications to continue in the said post. Having been granted 6 Preeti Srivastava v. State of MP, (1999) 7 SCC 120; State of Gujarat v. Arvindkumar T. Tiwari, AIR 2012 SC 3281 SLP 1563/2021 10 an appointment to the post of Assistant, the respondent was required to fulfill the dual conditions of obtaining a certificate of proficiency in computers (which he did) and to achieve the requisite speed in typing within a stipulated period (which he did not despite two opportunities). Appointment to an alternate post cannot be directed by the High Court. This would permit entry into a Class IV post at the expense of others who may be waiting in line for compassionate appointment or for which persons who seek appointment in open competition would be eligible. 13 The view which was taken by the High Court relying on its earlier decision in Mukul Sagar (supra) was plainly erroneous. We, however, clarify that while we have held that the decision in Mukul Sagar (supra) does not lay down correct principle of law, the present judgment should not be construed as a direction to the State to disturb the appointment which may have been granted to the petitioner in Mukul Sagar’s case. 14 For the above reason, we are unable to subscribe to the view of the Single SLP 1563/2021 11 Judge and of the Division Bench in appeal in the present case. 15 The appeal is allowed by setting aside the impugned judgment of the Division Bench dated 25 August 2020 and the judgment of the Single Judge dated 5 November 2019. The writ petition instituted by the respondent before the High Court shall in the circumstances stand dismissed. 16 Pending applications, if any, stand disposed of. Civil Appeal No 5213 of 2022 (Arising out of SLP (C) No 5524 of 2021) 1 Leave granted. 2 The respondent’s mother was employed as a Senior Assistant at the office of Arth Evam Sankhya Adhikari, Mathura. She died in harness in the year 2015. The respondent applied for appointment on compassionate grounds and was SLP 1563/2021 12 offered appointment to the post of Junior Assistant. The appointment order dated 30 May 2016 draws attention to Rule 5(1) of the 2014 Rules. The respondent failed the typing test on 16 March 2017 and 17 July 2019. By an order dated 31 July 2019, the services of the respondent were terminated. 7 The respondent filed a writ petition challenging the order of termination and seeking the relief of reinstatement. The Single Judge of the High Court in his judgment dated 21 November 2019 relied upon the earlier decision in Mukul Sagar v. State of Uttar Pradesh and directed the petitioners to revisit the issue. The Division Bench by its judgment dated 2 September 2020 8 dismissed the Special Appeal preferred by the State of Uttar Pradesh relying 9 upon its decision in Special Appeal Defective No 169 of 2020 . 3 Since the decision which has been relied upon by the Single Judge and the decision of the Division Bench in Mohd Rehan have been disapproved in the above decision, the present appeal shall stand allowed by setting aside the judgment of the Division Bench dated 2 September 2020 and the judgment of the Single Judge dated 21 November 2019. The writ petition filed by the 7 WP (Civil) No. 18189 of 2019 8 Special Appeal Defective No 168 of 2020 9 State of Uttar Pradesh vs Mohd Rehan Khan dated 25 August 2020 SLP 1563/2021 13 respondent before the High Court shall stand dismissed. 4 The appeal is allowed in the above terms. 5 Pending applications, if any, stand disposed of. ….....…...….......………………........J. [Dr Dhananjaya Y Chandrachud] ..…....…........……………….…........J. [A S Bopanna] New Delhi; August 08, 2022 CKB SLP 1563/2021 14 ITEM NO.29 COURT NO.3 SECTION XI S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No.1563/2021 (Arising out of impugned final judgment and order dated 25-08-2020 in SPLAD No.169/2020 passed by the High Court of Judicature at Allahabad, Lucknow Bench) STATE OF U.P. & ORS. Petitioner(s) VERSUS MOHD. REHAN KHAN Respondent(s) (With IA No.10904/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.10905/2021 - EXEMPTION FROM FILING O.T.) WITH S.L.P.(C) No.5524/2021 (XI) (With IA No.47630/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.47631/2021 - EXEMPTION FROM FILING O.T.) Date : 08-08-2022 These matters were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE A.S. BOPANNA For Petitioner(s) Mr. Ankit Goel, AOR For Respondent(s) Mr. Danish Zubair Khan, AOR Mohd. Asad Khan, Adv. SLP 1563/2021 15 Mr. Jayprakash Somani, Adv. Ms. Shobha Somani, Adv. Mr. Rajnish Kumar, Adv. Ms. Binisha Mohanty, Adv. Ms. Mamta Raut, Adv. Mr. Aayshmaan Vatsayayava, Adv. Ms. Asha Sahar, Adv. Ms. Manju Jetley, AOR UPON hearing the counsel the Court made the following O R D E R 1 Leave granted. 2 The appeals are allowed in terms of the signed reportable judgment. 3 Pending applications, if any, stand disposed of. (CHETAN KUMAR) (SAROJ KUMARI GAUR) A.R.-cum-P.S. Court Master (Signed Reportable Judgment is placed on the file)