# Shobhit Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 898
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-17
- **Case number:** Writ-A No. 6453 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shobhit-srivastava-ors-v-state-of-u-p-ors-50630
- **Pages:** 8

## Headnote

Law
-
U.P.
Recruitment
of
Dependents
of
Government
Servants
Dying
in
Harness
Rules,
1974
-
Compassionate
Appointment
-
Requirement of Typing Proficiency
-
Limited Opportunities under Rules - No
8 All. Shobhit Srivastava & Ors. Vs. State of U.P. & Ors.
899
Scope for Third Typing Test - Mandamus
Issued - Validity of Appointment Cannot
Be Questioned Thereafter-Compassionate
Appointment, Typing Test, Service Law, Rule
5(1)(i) - Dying-in-Harness, Kanpur Development
Authority - 13th Amendment Rules 2022,
Proficiency Requirement, Mandamus

Where the petitioners were appointed on
compassionate
grounds
under
the
U.P.
Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974, and
failed the first typing proficiency test but passed
the second within the permissible time, the
Kanpur Development Authority (KDA) could not
compel them to undergo a third test on the
ground of performance complaints. Rule 5(1)(i)
of the 1974 Rules (pre and post 13th
Amendment, 2022) allows only two attempts to
clear the typing test. Once the second test is
passed, the authority is functus officio on the
matter. Even if the employer doubts proficiency,
no third test is legally sustainable. Disciplinary
action for inefficiency, if warranted, must be
taken separately under applicable service rules
but cannot affect the legality of appointment.

Citations:

## Text

898 INDIAN LAW REPORTS ALLAHABAD SERIES
which govern the filing of a review petition
before the Tribunal. The Hon'ble Supreme
Court, in the aforesaid decision was not
apprised of the statutory provisions, which
relate to the power of review available with
the Tribunal. In fact the application for
review is not one filed under Rule 17 but
under Section 22(3)(f) of the Administrative
Tribunals Act. Section 22 of the Act which
says that the Tribunal shall have the same
powers as that of a civil court for reviewing
its decisions was not considered. The
provisions of the Civil Procedure Code and
that of the Limitation Act, which governs
the power of review were also not
considered. Even if Rule 21 is to be treated
as the specific provision prescribing
limitation,
the
fact
that
the
said
prescription is subject to Section 29 of the
Limitation Act was also not considered."

(Emphasis Supplied)

E. CONCLUSION

(46) Accordingly, this Court observes
that the judgments of Full Benches of
Hon'ble High Court of Orissa, Hon'ble
High Court of Kolkata and Hon'ble High
Court of Kerala are relevant law on the
issue. Hence, this Court holds that an
application for condonation of delay in
Review Application filed before the Central
Administrative Tribunal (Procedure) Rules,
1987 is maintainable and accordingly, it is
held that the Tribunal can condone the
delay under Section 5 of the Limitation
Act, if it is satisfied that sufficient cause for
not preferring an application within the
time has been supplemented.

(47) As a sequitur, we hereby allow
the writ petition and quash the impugned
order dated 13.03.2023 passed by the
Central Administrative Tribunal, Lucknow,
in review Application No. 20/2016 in Re:
Original Application No. 561/2005 and
accordingly restore the review application
along with the condonation of delay
application filed by the petitioner to its
original file.

(48) It is also directed that the Review
Application and Condonation of Delay
Application be decided by the Central
Administrative Tribunal, Lucknow on its
own merits.

(49) This Court makes it clear that it
has not expressed any opinion on the merits
of the case and respective parties are
permitted to agitate all their grounds and
submission before the learned Tribunal, as
may be permissible to them under law.

(50) There shall be no order as to cost.
----------
(2023) 8 ILRA 898
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD17.07.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 6453 of 2023

Shobhit Srivastava & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajesh Dwivedi

Counsel for the Respondents:
C.S.C., Sri Anand Prakash Paul

Service
Law
-
U.P.
Recruitment
of
Dependents
of
Government
Servants
Dying
in
Harness
Rules,
1974
-
Compassionate
Appointment
-
Requirement of Typing Proficiency
-
Limited Opportunities under Rules - No
8 All. Shobhit Srivastava & Ors. Vs. State of U.P. & Ors.
899
Scope for Third Typing Test - Mandamus
Issued - Validity of Appointment Cannot
Be Questioned Thereafter-Compassionate
Appointment, Typing Test, Service Law, Rule
5(1)(i) - Dying-in-Harness, Kanpur Development
Authority - 13th Amendment Rules 2022,
Proficiency Requirement, Mandamus

Where the petitioners were appointed on
compassionate
grounds
under
the
U.P.
Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974, and
failed the first typing proficiency test but passed
the second within the permissible time, the
Kanpur Development Authority (KDA) could not
compel them to undergo a third test on the
ground of performance complaints. Rule 5(1)(i)
of the 1974 Rules (pre and post 13th
Amendment, 2022) allows only two attempts to
clear the typing test. Once the second test is
passed, the authority is functus officio on the
matter. Even if the employer doubts proficiency,
no third test is legally sustainable. Disciplinary
action for inefficiency, if warranted, must be
taken separately under applicable service rules
but cannot affect the legality of appointment.

Citations:

1. Committee of Management, Vaidik Kanya
Inter College & anr. Vs St. of U.P. & ors.
Citation: (2023) 7 ILRA

2. Kul Bhushan Mishra & anr. Vs St. of U.P. &
ors. Citation: (2023) 7 ILRA

3. Dinesh Chandra Verma Vs St. of U.P. & ors.
Citation: (2023) 7 ILRA

4. Rajat Yadav Vs St. of U.P. & ors. Citation:
(2023) 8 ILRA

5. St. of U.P. & ors. Vs Shiv Jag Sharma & ors.
Citation: (2023) 8 ILRA

6. Jitendra Kumar Tiwari Vs St. of U.P. & anr.&
Connected Cases Citation: (2023) 8 ILRA

7. Shobhit Srivastava & ors. Vs St. of U.P. &
ors.Citation: (2023) 8 ILRA

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition has been filed
seeking to quash an order dated 28.03.2023
passed by the Officer on Special Duty
(Establishment),
Kanpur
Development
Authority, Kanpur to the extent alone that it
directs a further typing test to be taken by
the petitioners on 12.04.2023 in compliance
with an order of the Vice-Chairman of the
Development Authority aforesaid. The
petitioners have further sought a mandamus
to restrain the holding of the scheduled
typing test on 12.04.2023 in terms of the
impugned order dated 28.03.2023.

2. The petitioners are all Clerks in the
employ of the Kanpur Development
Authority, Kanpur (for short, 'the KDA')
and all of them have been appointed on
compassionate ground. The first petitioner
Shobhit Srivastava was appointed on 28th
January,
2018
whereas
the
second
petitioner Ajay Srivastava was appointed
on 30th May, 2017. The third petitioner
Abhishek Tripathi was appointed on 20th
December, 2017.

3. It is common ground between
parties that notwithstanding the petitioners'
appointment under the dying in harness
Rules, the post held by them requires the
petitioners to qualify with a typing speed of
25 words per minute. The aforesaid
qualification is essential. In this regard,
reference may be made to the Uttar Pradesh
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974 (for
short, 'the Rules of 1974'). These Rules
have been amended by the Uttar Pradesh
Recruitment of Dependants of Government
Servants
Dying
in
Harness
(13th
Amendment) Rules, 2022 (for short, 'the
13th Amendment Rules), that have been
published in the official gazette on 27th
December, 2022. Rule 5 of the Rules of
1974 has been amended by the 13th
900 INDIAN LAW REPORTS ALLAHABAD SERIES
Amendment Rules and it would be gainful
to reproduce the amended and unamended
Rule 5 in extenso:

Substitution
of rule 5
2. In the Uttar Pradesh
Recruitment of Dependants
of
Government
Servants
Dying in Harness Rules,
1974,
for
existing
rule
5(1)(i) set out in column 1
below, the rule as set out in
column
2
shall
be
substituted, namely:-
COLUMN
1
Existing rule
COLUMN 2
Rule as hereby substituted
5.(1)
Recruitment
of a member
of the family
of
the
deceased- In
case
a
Government
servant dies
in
harness
after
the
commencem
ent 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
5.(1)
Recruitment
of
a
member of the family of the
deceased-
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 purpose, be given a
suitable
employment
in
Government Service on a
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
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 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
requisite
speed
in
typewriting and if in the
extended period also he
again fails to acquire the
requisite
speed
in
typewriting, then an order
will be issued to provide him
appointment on the post of
class IV. The appointment so
granted shall be deemed to
be a fresh appointment and
shall not be reversion. If he
does not join the post of
class IV within stipulated
8 All. Shobhit Srivastava & Ors. Vs. State of U.P. & Ors.
901
Commission
,
in
relaxation of
the
normal
recruitment
rules, if such
person-

(i) fulfils the
educational
qualification
s 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
time his services will be
terminated.

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
'C.C.C'
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
certificate
in
computer
operation and the required
speed in typewriting and if
in the extended period also
he again fails to acquired
certificate
in
computer
operation and the required
speed in typewriting, then an
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
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
order will be issued to
provide him appointment on
the post of class IV. The
appointment so granted shall
be deemed to be a fresh
appointment and shall not be
reversion. If he does not join
the post of class IV within
stipulated time his services
will be terminated.
902 INDIAN LAW REPORTS ALLAHABAD SERIES
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
'C.C.C'
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
certificate in
computer
operation
and
the
required
speed
in
typewriting
and if in the
extended
period
also
he
again
fails
to
acquired
certificate in
computer
operation
8 All. Shobhit Srivastava & Ors. Vs. State of U.P. & Ors.
903
and
the
required
speed
in
typewriting,
his services
shall
be
dispensed
with.

4. A perusal of the first proviso to the
pre-amended Rules shows that in case of
appointment made under the Rules of 1974 to
a post for which typewriting has been
prescribed as an essential qualification, a
dependent of the deceased government
servant, who did not possess the required
proficiency
in
typewriting,
would
be
conditionally appointed, subject to acquisition
of the requisite typing speed of 25 words per
minute within one year. If he failed to do that,
his general annual increment would be
withheld and a further period of one year
granted to acquire the requisite typewriting
speed. If within the extended period of one
year, the compassionate appointee failed to
acquire the requisite speed in typewriting, his
services would stand determined.

5. Under the amended Rule 5(1)(i), the
time period of one year to acquire the
requisite speed in typewriting remains
unchanged and in the event of failure, the
extended period of one year to acquire the
necessary typewriting speed also remains
unchanged. It is, however, upon a failure
within
the
extended
one
year
that
consequences have changed. Earlier, it would
lead to determination of the compassionate
appointee's
service,
whereas
now
the
compassionate appointee would be offered a
fresh appointment on a Class-IV post.

6. So far as the present case is
concerned, there could be some issue
whether the unamended Rule 5 would
apply in the petitioners' case or their rights
would be governed by the 13th Amendment
Rules. But, on facts that controversy does
not arise. The reason is that it is common
ground between parties that each of the
petitioners
after
their
respective
appointments under the Rules of 1974 did
not possess the requisite proficiency in
typing or the prescribed speed of 25 words
per minute. It is also common ground that
all the three petitioners took the typewriting
test for the first time in the year 2019 in
accordance with Rule 5(1)(i) and failed it.
All the petitioners, therefore, had a further
year to acquire the necessary proficiency in
typewriting. The petitioners took the typing
test a year later, that is to say, a second time
on 25.08.2022 and passed it along with four
other similarly circumstanced appointees.
In this connection, the attention of the
Court has been drawn by the learned
Counsel for the petitioners to the impugned
order dated 28.03.2023. The order has been
issued by the Officer on Special Duty
(Establishment), KDA. In the first part of
the order, a declaration of result of the
second typing test for the petitioners,
besides four others, is carried. It clearly
says that in the typing test held on
25.08.2022, seven Clerks had passed it,
including the three petitioners here. There
is no objection to the order dated
28.03.2023 to this extent; nor can it be.

7. In the later part of the order, it is
mentioned that the Vice-Chairman of the
KDA in terms of his approval order dated
10.03.2023 has directed that the employees
who have passed the examination would
undergo a typing test under the supervision
of the Secretary on 12.04.2023 at half past
twelve in the afternoon. The venue would
the KDA's Computer Department, located
on the third floor. The order appoints two
904 INDIAN LAW REPORTS ALLAHABAD SERIES
Officers of the KDA as Invigilators, to
whom it is addressed. It is this part of the
order requiring the petitioners to undergo a
typing proficiency test for a third time that
the petitioners impugn.

8. The submission of the learned
Counsel for the petitioners is that Rule 5 of
the Rules envisages only two typing test for
an appointee under the Rules of 1974, if he
does not initially possess the requisite
proficiency and speed of 25 words per
minute. If he fails the first, he has the
second and last chance a year afterwards of
failing the first test to achieve the requisite
speed and retain his appointment. Here, the
petitioners have passed the second test and
no third test is envisaged under the Rules of
1974, either before the amendment, or after
the 13th Amendment. The petitioners have
for a fact passed the second test held to
determine their proficiency on 25.08.2022,
the result whereof was declared on
28.03.2023. There is, thus, according to the
petitioners no occasion for the KDA to hold
a third test to verify their profeciency.

9. This Court granted time to the
KDA to file a counter affidavit on
05.07.2023 and a return has been filed
today, which is taken on record.

10. By consent of parties, this Court
has heard the matter. ]

11. Heard Mr. Rajesh Dwivedi,
learned Counsel for the petitioners, Mr.
Anand Prakash Paul, learned Counsel
appearing for respondent Nos. 2 and 3 and
Ms. Monica Arya, learned Additional Chief
Standing Counsel appearing on behalf of
the respondent No.1.

12. In Paragraph No.4 of the counter
affidavit, it is admitted that the petitioners
though could not clear the proficiency test
in typing in the first attempt, but they did
pass it in the second attempt. In Paragraph
No.5, it is said that approval to the
petitioners' appointment was granted by the
Vice-Chairman,
presumably
on
the
petitioners passing the typing test in the
second instance, but subsequently upon
complaints
received
from
certain
Department
Heads
under
whom
the
petitioners are working with regard to their
typing skills, it was found necessary that a
verification be done. It is on this account
that the order dated 28.03.2023 was issued
requiring all candidates, who cleared the
examination, to appear in what the
respondents describe as "a conformity
routine typing test" to be held on
12.04.2023. It is also averred in Paragraph
No.3 that out of the seven candidates, who
cleared the proficiency test in the second
attempt, three alone have preferred this writ
petition, whereas the other four have
submitted to the impugned order and taken
the test a third time. It is also averred that
under the Rules once the candidate clears
the test, he cannot be asked to appear for a
further skill test, but that does not debar the
Authority to take action against employees,
who are found to be totally incompetent in
their work. More or less, Mr. Paul has made
submissions in conformity with the stand
taken in the counter affidavit, which he has
put across to the Court in more lucid words.

13. Upon hearing learned Counsel for
the parties, this Court is of opinion that the
KDA have neither the right nor jurisdiction
to hold a third test whether a candidate
appointed under the Rules of 1974, passes
or fails the typing proficiency test held in
the second instance. Rule 5(1)(i) of the
Rules of 1974, both pre-amended and post
amendment contemplate only two tests for
a compassionate appointee, who does not
8 All. Anil Kishore Gupta Vs. S.B.I. & Ors.
905
have the requisite skill and speed of 25
words per minute in typewriting. The first
test, an appointee, with this shortcoming,
must take at the end of one year of his
appointment, and failing that, he must take
the second test in the following, year after
improving his skills. If he passes the skill
test in the second instance, there is no
further authority left with the KDA to ask
him to undergo a typing skill or proficiency
test a third time. After all, the second test
was held by the KDA and the petitioners
were found successful in the said test. It is
not even that the KDA having held the
second test it binds them with the result in
some manner of an estoppel. The crux of
the matter is that passing the typing skill
test in the second instance under Rule
5(1)(i) closes the chapter under the Statute
once and for all. There is no jurisdiction, as
already said, with the KDA to hold a third
test to verify or confirm the result of the
second. Even if they did hold it and found
the petitioners not upto the mark, it would
be of no consequence.

14. This position of the law, Mr. Paul
could not very seriously dispute. However,
he said that for poverty of skill in
typewriting, action could be taken against
the petitioners. The taking of action if
permissible under the service rules for
inefficiency of an employee is another
matter. It has nothing to do with his
appointment. The issue here is about the
validity of the compassionate appointment
given to the petitioners and with them
passing the typewriting proficiency test in
the second instance, their appointment
cannot be put in jeopardy. If that cannot be
done, there is no point about the KDA
holding a third test for ascertaining the
typewriting proficiency or the petitioners'
typing speed, who have already passed the
necessary test in accordance with Rules of
1974. Mr. Paul could not bring to this
Court's notice any authority taking a
contrary view on principle.

15. In this view of the matter, this
petition succeeds and is allowed. The
impugned order dated 28.03.2023 to the
extent it directs the holding of a typing skill
test for a third time is quashed. The
respondents are restrained by a mandamus
from holding a typing test in future for the
purpose of determining the validity of the
petitioners' appointment.

16. There shall be no order as to costs.
----------
(2023) 8 ILRA 905
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 6758 of 2004
connected with
Writ-A No. 6145 of 2002

Anil Kishore Gupta ...Petitioner
Versus
S.B.I. & Ors. ...Respondents

Counsel for the Petitioner:
K.K. Gautam, Amit Kr. Singh Bhadauriya, L.B.
Singh Bhadauraiya

Counsel for the Respondents:
N.K. Seth, Gopal Kumar Srivastava

A.
Service
Law
-
Punishment
-
Promotional examination - Use of unfair
means
-
Departmental
enquiry
-
Punishment of 'Warning' was given by
making entry in the service book, which
was also confirmed by appellate authority
- Petitioner was also restrained from
getting benefit for grant of appointment
to the post of Senior Assistant w.e.f