SUNEEL KUMARversusSTATE OF U.P. & ORS.

114                      [2022]REPORTS
               SUPREME COURT    7 S.C.R. 114               [2022] 7 S.C.R.


A                              SUNEEL KUMAR
                                        v.
                            STATE OF U.P. & ORS.
                         (Civil Appeal No. 5038 of 2022)
B                              AUGUST 02, 2022
               [K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
             The Uttar Pradesh Recruitment of Dependents of Government
      Servants Dying in Harness Rules, 1974 – Rule 5 – Compassionate
      appointment – When superior qualification is held by the dependent
C
      – The father of the appellant was working as class-IV employee
      (sweeper) and passed away – Appellant, a graduate with computer
      literacy, was offered post of sweeper but he rejected the same and
      requested to be appointed as Gram Panchayat officer (Class-III
      post) with reference to the qualification he had – Respondent rejected
D     the said request on their understanding of the words “suitable
      employement” in Rule 5 – High Court rejected the writ petition of
      the appellant – Appellant approached the Supreme Court – Held:
      The words “suitable employment” in Rule 5 must be understood
      with reference to the post held by the deceased employee – The
      superior qualification held by a dependent cannot determine the
E
      scope of the words “suitable employment” – The alternate submission
      of the appellant to be appointed as sweeper was accepted as it is a
      right under the statutory rule.
            Partly allowing the appeal, the Court
F           HELD:1. The question relating to the entitlement as it were
      of the appellant to be considered to the post of Gram Panchayat
      Officer is concerned, it is without doubt a post borne in Class-
      III. The father of the appellant was working as a Sweeper borne
      in Class-IV post. This court have noticed the view taken in the
      case of Premlata. In other words, the law as declared is to the
G     effect that the words “suitable employment” in Rule 5 must be
      understood with reference to the post held by the deceased
      employee. The superior qualification held by a dependent cannot
      determine the scope of the words “suitable employment”. [Para
      10][120-F-G]
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           SUNEEL KUMAR v. STATE OF U.P. & ORS.                             115


       2. This court must consider the case of the appellant for            A
appointment as a Sweeper at least. It may be true that the
appellant may have been on the advice given persuaded to litigate
the matter and persevere in his claim for a specific post. It may
be true that there were rounds of litigation but as we have already
noticed bearing in mind the date of the death of the employee,
                                                                            B
the claim of the appellant may not be said to be afflicted with such
delay as should deprive him and the family of the deceased of
relief of the appellant being appointed as a Sweeper, a right which
is given under the statutory Rule. [Para 12][121-B-C]
      State of Uttar Pradesh And Others v. Premlata (2022) 1
      SCC 30 : 2021 (10) JT 28 – relied on.                                 C

      Prakash Agarwal v. Registrar General W.P.(C) No.
      2228 (SS) 2014; State of Himachal Pradesh and
      Another v. Shashi Kumar (2019) 3 SCC 653 : [2019] 2
      SCR 432 – referred to.
                                                                            D
                        Case Law Reference
[2019] 2 SCR 432                 referred to               Para 8
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5038
of 2022.
                                                                            E
      From the Judgment and Order dated 16.08.2021 of the High Court
of Judicature at Allahabad in Special Appeal Defective No. 1131 of
2019.
     Arijit Prasad, Sr. Adv., Pankaj Pandey, Girish Tripathi, Mrs. Pragya
Baghel, Advs. for the Appellant.
                                                                            F
     Ms. Ruchira Goel, Adit Jayeshbhai Shah, Advs. for the
Respondents.
      The following Judgment of the Court was delivered :
                            JUDGMENT
                                                                            G
      1. Leave granted.
       2. The father of the appellant who was working as Class-IV
employee (Sweeper) at the Office of Vikas Khand Khutam, Jaunpur,
U.P., passed away on 23.11.2016. An application came to be made by
the appellant for being appointed under Rule 5 of The Uttar Pradesh
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116            SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A     Recruitment of Dependents of Government Servants Dying in Harness
      Rules, 1974 (hereinafter referred to as ‘the Rules of 1974’). Rule 5
      reads as follows:-
            “[5. Recruitment of a member of the family of the deceased.-(1)
            In case a Government servant dies in harness after the
B           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
C           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
D           rules, if such person-
            (i) fulfils the educational qualifications prescribed for the post,
            (ii) is otherwise qualified for Government service, and
            (iii) makes the application for employment within five years from
            the date of the death of the Government servant:
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                   Provided that where the State Government is satisfied that
            the time limit fixed for making the application for employment
            causes undue hardship in any particular case, it may dispense
            with or relax the requirement as it may consider necessary for
            dealing with the case in a just and equitable manner.
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                    (2) As far as possible, such an employment should be given
            in the same department in which the deceased Government servant
            was employed prior to his death.]
            [5A. Recruitment of member of the family of Police/P.A.C.
            Personnel who dies in May, 1973.- Notwithstanding anything
G           contained to the contrary contained in Rule 5 or in any other rule,
            the provisions of these rules shall apply in the case of members of
            the family of twenty-two police or per Provincial Armed
            Constabulary personnel who died as a result of disturbances in
            May, 1973, as they apply in the case of a Government servant
H           during dying in harness after the commencement of these rules.]
           SUNEEL KUMAR v. STATE OF U.P. & ORS.                               117


       3. The appellant is a graduate and also got computer literacy. He      A
was offered a post of Sweeper, the post which was held by his late
father. However, the appellant being so advised rejected the offer and
did not join and gave his representation by which he expressed his
disinclination to join, which effectively means that he rejected the offer.
Thereafter, the appellant approached the Court which directed
                                                                              B
consideration of his representation. The respondents again rejected the
request to accommodate the appellant in a Class-III post. It must be
noted that the appellant specifically sought to be appointed as Gram
Panchayat Officer, a post which is borne on the cadre of Class-III post.
There is no dispute that the said post does not come within the purview
of the Uttar Pradesh Public Service Commission contemplated under             C
Rule 5. Therefore, the Rule in this regard was not an obstacle to the
claim of the appellant. However, the respondents rejected the
representation in keeping with their understanding of the words “suitable
employment” in Rule 5. This again generated another writ petition. It is
the said writ petition which finally culminated in the High Court holding
                                                                              D
against the appellant.
      4. We heard Mr. Arijit Prasad, learned senior counsel appearing
on behalf of the appellant and Ms. Ruchira Goel, learned counsel
appearing on behalf of the respondent No.1-State of U.P.
       5. Mr. Arijit Prasad, learned senior counsel appearing on behalf       E
of the appellant would submit that the High Court essentially premised
its judgment on the basis of the view taken by this Court reported in
State of Uttar Pradesh And Others versus Premlata, (2022) 1 SCC
30. Therein, no doubt, this Court has inter alia held as follows:-
         “11. In view of the above and for the reasons stated above, the      F
      Division Bench of the High Court has misinterpreted and
      misconstrued Rule 5 of the 1974 Rules and in observing and holding
      that the “suitable post” under Rule 5 of the Dying-In-Harness
      Rules, 1974 would mean any post suitable to the qualification of
      the candidate and the appointment on compassionate ground is to
      offered considering the educational qualification of the dependent.     G
      As observed hereinabove, such an interpretation would defeat
      the object and purpose of appointment on compassionate ground.”
      6. He would submit that this view came to be formed by this
Court without bearing in mind what he initially described as relevant
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118            SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A     Rules in this regard. What he referred to the Rules are to be found from
      Annexure P-1, which are, inter alia, produced as below:-
            “1. With a view to ameliorate the condition of dependents of
            Government servants who die during service, “U.P. Recruitment
            of dependents of deceased Government Servants Regulation 1974”
B           (Amended) were circulated. In these regulations, there is a system
            for appointment of the dependents of deceased outside U.P. Public
            Service Commission for filing up post in Group C and Group D
            posts. Up till now 11 amendments have been done in these
            regulatios. The original regulations with 11 modifications are
            attached herewith.
C
            2. In connection with appointment of dependents of deceased
            employees, a WP (C) was filed vide No. 2228 (SS) 2014 Prakash
            Agarwal Vs. Registrar General, High Court, Allahabad in which
            Hon. High Court, Lucknow Bench passed order on 17.04.2014
            whose para 49 makes the following observations.
D
                      a. Application should be disposed of within three months
               from the date dependent applies for a job. Under Rules, no
               time limit is prescribed but intent of the rule is to provide
               immediate relief to the bereaved family to meet immediate
               financial crisis (Shiv Kumar Dubey (supra)]. In this background,
E              Appropriate Authority is supposed to dispose of such
               applications within a shortest possible time. In any case,
               application should not be kept pending for more than three
               months.
                      b. Appointment under the Rules cannot be refused
F              merely on the ground that financial status of the applicant is
               sound. Nor payment of retiral benefits at the time of death,
               furnishes any ground for refusal.
                     c. Non availability of posts is no ground to refuse
               appointment.
G
                    d. Appointment on Class III post cannot be refused
               merely on the ground that deceased was Class III/ IV
               employee.
                      e. Appointment has to be offered according to
               qualification and suitability of candidate and the applicant should
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            SUNEEL KUMAR v. STATE OF U.P. & ORS.                                  119


          be given an appointment commensurate therewith. If appointing           A
          authority does not give appointment on the post claimed by
          applicant because of non-suitability,reasons have to be recorded
          by the appointing authority.
                 f. Dependent of deceased has no right to claim particular
          position or place and it is in the discretion of the appointing         B
          authority to pass appropriate order warranted in the facts and
          circumstances of the case.”
       3. In this connection, I am directed to say that in the context of
       appointment of the dependents of deceased employees, the
       guidelines, instructions issued by Hon’ble High Court are required         C
       to be complied with strictly.”
       7. In other words, he would submit that a perusal of the said
Rules in Clause-2(d) thereof would reveal that an appointment on Class-
III post should not be refused only on the ground that the deceased was
a Class-III or a Class-IV employee. He would submit that had this Court           D
been taken into confidence about the existence of this Rule, the view
taken by this Court as already noticed may not have been taken. He
would submit that the question of suitability need not be decided with
reference to the post which was held by the deceased employee. Rather
in a case such as this, where the appellant is clearly entitled to be appointed
as Gram Panchayat Officer with reference to the qualification which he            E
has and what is more, bearing in mind that this is not a post which comes
within the purview of the Public Service Commission, there is no legal
hurdle in the appellant being accommodated. Alternatively, he would
also submit that in case this Court is not inclined to accept his contention,
the appellant may at least be vouchsafed the security of the employment           F
as a Sweeper.
       8. Per-contra, Ms. Ruchira Goel, learned counsel appearing on
behalf of the respondent No.1-State of U.P. would contest the matter
and point out in the first place that the reference made to the so called
Rules by the learned senior counsel for the appellant may be misplaced.           G
There are essentially orders passed by the Government on the basis of
the view expressed by the High Court in W.P.(C) No.2228(SS) 2014,
Prakash Agarwal Vs. Registrar General, High Court, Allahabad.
She would further submit that on a proper understanding of the judgment
of the High Court, the interpretation sought to be placed by the appellant
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120            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A     may not emerge. She would further bring to our notice the judgment of
      this Court in State of Himachal Pradesh and Another versus Shashi
      Kumar, (2019) 3 SCC 653 and contend at the appointment under the
      compassionate scheme is not meant to be a source of recruitment. It is
      essentially to reach immediate succor to a bereaved family. In other
      words, the sudden passing away of a Government Servant creates a
B
      financial vacuum and it is to lend a helping hand to the genuinely needy
      members of the family that an appointment is provided. It is never meant
      to be a source of recruitment. It is further contended that though
      appointment can be made in regard to Class-III and Class-IV posts, this
      cannot mean that when the employee who passed away was borne on
C     the Class-IV cadre, the dependents can stake a claim to a Class-III
      appointment. As far as the alternate submission is concerned, it is
      submitted that the appellant did not choose to accept the offer of
      appointment as Sweeper and what is more, he rejected it and there may
      not be a vacancy to accommodate the appellant.
D            9. This is a case where the father of the appellant was working as
      a Sweeper. Undoubtedly, the appellant is qualified (according to him)
      and in the said sense is suitable for being appointed as a Gram Panchayat
      Officer. The death of the employee in this case took place not too far
      away, namely, it took place on 23.11.2016. Therefore, this is not a case
      where the link between the date of the death and the time for
E     consideration of the matter by this Court has snapped. We must not be
      oblivious to the fact that the deceased employee was a Sweeper.
             10. At the same time, as far as the question relating to the
      entitlement as it were of the appellant to be considered to the post of
      Gram Panchayat Officer is concerned, it is without doubt a post borne in
F     Class-III. The father of the appellant was working as a Sweeper borne
      in Class-IV post. We have noticed the view taken by this Court in
      Premlata (supra). In other words, the law as declared is to the effect
      that the words “suitable employment” in Rule 5 must be understood with
      reference to the post held by the deceased employee. The superior
G     qualification held by a dependent cannot determine the scope of the
      words “suitable employment”.
             11. It is clear that the Annexure P-1 does not represent statutory
      Rules. We do not think we should be persuaded to take a different view
      as things stand. We cannot eclipse the dimension that the whole purport
H     of the scheme of compassionate appointment is to reach immediate relief
             SUNEEL KUMAR v. STATE OF U.P. & ORS.                               121


to the bereaved family. In such circumstances, the meaning placed on            A
the words “suitable employment” bearing in mind the post held by the
deceased employee cannot be said to be an unreasonable or incorrect
view.
       12. Having so held, we must now consider the case of the appellant
for appointment as a Sweeper at least. It may be true that the appellant        B
may have been on the advice given persuaded to litigate the matter and
persevere in his claim for a specific post. It may be true that there were
rounds of litigation but as we have already noticed bearing in mind the
date of the death of the employee, the claim of the appellant may not be
said to be afflicted with such delay as should deprive him and the family
of the deceased of relief of the appellant being appointed as a Sweeper,        C
a right which is given under the statutory Rule.
       13. In such circumstances, the appeal is partly allowed. We set
aside the impugned judgment and we direct the respondent No.3-District
Panchayat Raj Officer, District Jaunpur, U.P. to appoint the appellant to
the post of Sweeper. The necessary order appointing the appellant shall         D
be issued within a period of eight weeks from the date of production of
the copy of this judgment. No doubt, we are passing this judgment in the
peculiar facts of this case.
       The appeal is partly allowed.
                                                                                E
       No order as to costs.

Ankit Gyan                                             Appeal partly allowed.
(Assisted by : Aarsh Choudhary, LCRA)

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