Allowed

Akash Bashiyan v. State of U.P. and 2 Ors.

Allahabad HC10 Aug 2018SPLA/726/2018

Case brief

AI extract

What is this about?

The Special Appeal allowed and set aside an impugned order which had appointed the appellant to a post only if he qualified a typing test within 6 months. The High Court held that the relaxation provisions granting a one-year period to acquire typing proficiency apply even if the dependent does not possess the requisite proficiency, rejecting the respondents' argument that the appellant did not qu

What did the court decide?

The impugned judgment was set aside. The appellants were directed to provide appointment as Junior Assistant on compassionate grounds and an opportunity to qualify the typing proficiency as per the Ru

Akash Bashiyan Vs State of U.P. and 2 Ors. — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 21

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Case :- SPECIAL APPEAL No. - 726 of 2018

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Appellant :- Akash Bashiyan Respondent :- State Of U.P. And 2 Ors Counsel for Appellant :- Nipun Singh Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh

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Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.

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Supplementary affidavit has been filed today in Court by Sri Nipun Singh, learned counsel for the appellant and the same is taken on record.

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This appeal is before us to examine correctness of the order dated 9th July, 2018 passed by learned single Bench in Writ A No.- 9144 of 2018.

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By the order impugned, learned Single Bench while disposing of the writ petition directed the respondent to appoint the appellant-petitioner on Class- IV Post and to consider his case for appointment as Junior Assistant subject to condition that he qualifies the Typing Test with sufficient speed within a period of 6 months thereafter.

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Before us, the argument advanced by learned counsel appearing on behalf of the appellant-petitioner is that as per provision of The Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Rules of 1974") the appellant-petitioner is entitled to be appointed in service of Class-III Cadre being commensurating the qualification possessed by him. It is asserted that the Rules of 1974 in a quite unambiguous terms prescribe for grant of appointment on compassionate grounds on a post suitable and further to allow a specific term to acquire necessary proficiency.

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The factual matrix necessary for adjudication of the instant appeal is that being ward of a deceased employee of the New Okhla Industrial Development Authority the appellant-petitioner on 26th May, 2016 submitted an application to have appointment on compassionate grounds as per provisions of the Rules of 1974. Along with the application the appellant-petitioner annexed copies of the necessary documents to substantiate his qualificational attainments and also the proficiency in typing. The respondents instructed the appellant-petitioner to qualify the Type Test, a proficiency prescribed for appointment to the post of Junior Assistant. The appellant-petitioner did not chose to appear in the proficiency test to claim for an appointment as Junior Assistant with a request to provide him some time to qualify the same. Being failed to have any positive response the appellant-petitioner approached this Court by way of filing a petition for writ.

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The petition for writ preferred by the petitioner came to be disposed of by

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learned Single Bench with the directions referred in preceding paras.

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The case of the appellant-petitioner is that as per Rule 5 of the Rules of 1974, in case a Government Servant dies in harness 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 purpose, 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 fulfils the educational qualifications prescribed for the post. The second and third proviso to Rule 5 pertain to relaxation in relation to certain proficiency and the proviso aforesaid reads as follows:-

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" 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 of 25 word 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 service shall be dispensed with.

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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 deceased 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 recognized 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."

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In light of the provisos aforesaid, as per learned counsel appearing on behalf of the appellant-petitioner, the appellant-petitioner was entitled to have one year time to qualify the Type Test and further additional year in the event of failure to qualify the same at first appearance. The respondents have not extended the relaxation as provided under the provisos aforesaid.

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Per contra, as per learned counsel appearing on behalf of the employer the provisos aforesaid would have been operated only if the appellantpetitioner would have not having the proficiency in typing. In the case in hand, he submitted a certificate disclosing the fact that he can type with a speed of 35 words per minute. In view of having this proficiency, the provisos on which reliance is placed was not open for operation for the present appellant-petitioner.

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We do not find any merit in the interpretation of the provisos as sought to be made on behalf of the respondents. As per Rule 5, an appointment is required to be accorded to a Government Servant on a post suitable to his qualification. As per the qualification possessed by the appellantpetitioner, he is entitled to be appointed on compassionate grounds on the post of Junior Assistant. The Proviso (ii) to Rule 5 prescribes that on a post for which Typewriting has been prescribed as an essential qualification and dependants of the deceased Government Servant does not possess the required proficiency in typewriting, he shall be appointed as a subject to the condition that he would acquire the requisite 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. If in the extended period also he fails to acquire the required certificate in computer operation and the required speed in typewriting, his services shall be dispensed with.

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On a plain reading, it appears that this proviso is required to be operated if the Government Servant does not possess the required proficiency or he fails to qualify the proficiency prescribed in typing.The absence of the appellant-petitioner in proficiency test at the most can be treated as a candidate not having the proficiency required.

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For the sake of argument even it is assumed that the appellant-petitioner would have appeared in the proficiency test and would have failed to qualify the same in that eventuality also he was entitled to avail one more opportunity to qualify the Type Test in next coming year and only adverse effect of that would have been withholding of annual grade increment. The respondents have put the appellant-petitioner in more deteriorating condition than the person who would have appeared in examination and failed in the same. As a matter of fact even it is assumed that the appellant-petitioner is not having requisite proficiency then too is entitled to be appointed as Junior Assistant subject to qualify the Type Test within a period of one year. Learned Single Bench failed to appreciate this aspect of the matter and, therefore, the judgment impugned deserves to be set aside.

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Accordingly, the appeal is allowed. The judgment impugned dated 9th July, 2018 passed by learned single Bench in Writ A No.- 9144 of 2018 is set aside. The petition for writ bearing Writ-A No. 9144 of 2018 is

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allowed. The respondents are directed to provide appointment to the appellant-petitioner on compassionate grounds as Junior Assistant within a period of 30 days from today and further to provide an opportunity to qualify the proficiency in typing as per Proviso (ii) to Rule 5 of Rules of 1974.

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No order to costs.

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Order Date :- 10.8.2018 Rameez

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(Chandra Dhari Singh,J.) (Govind Mathur,J.)

Akash Bashiyan v. State of U.P. and 2 Ors.

Case brief

What is this about?

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Akash Bashiyan v. State of U.P. and 2 Ors.

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