Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 826 (ALL)

KAMLESH KUMAR PANDEY v. STATE OF UTTAR PRADESH

2001-08-16

A.K.YOG

body2001
A. K. YOG, J. ( 1 ) HEARD Sri Manoj Mishra, Advocate, representing the Petitioner and Sri S. K. Garg, learned standing Counsel appearing on behalf of all the Respondent Nos. 1 and 2. Petition is finally decided at the admission stage as contemplated under rules of Court and also agreed by the learned Counsels for the parties. ( 2 ) ONE Shyam Narain Pandey (father of the petitioner) holding a Class HI post in a Department of Government of U. P. died on 29. 6. 1999. Petitioner applied for compassionate appointment, disclosing that he had passed Intermediate Examination, 1988 from U. P. Board. There is no explanation for the period between 1988 to June, 1999. Petitioner was given compassionate appointment under Dying in Harness Rules vide appointment letter dated 18. 4. 2000/ Annexure 6 to the Writ Petition mentioning that services of the Petitioner were absolutely temporary and liable to be terminated any time without prior notice. It also recited that Petitioners services were initially on probation of one year. Petitioner accepted, along with above conditions, the offer vide said appointment letter (Writ Petition Annexure-6) without raising objection regarding recital in the appointment letter to the effect that his appointment- (i) on Class IV post was temporary and/or (ii) not in consonance with regard to his academic qualification which entitled him to an appointment on Class III post. ( 3 ) VIDE Para 9 of the Writ Petition it is alleged that Petitioner filed representation dated 30. 8. 2000 as well as representations dated 22. 9. 2000, 9. 11. 2000, 7. 3. 2001 and 13. 6. 2001, filed as annexures-7, 8, 9, 10 and 11 respectively. Petitioner remained contended for about 16 months (30-3-2001 till filing of Writ Petition) except for filing alleged representations and has now approached the Court by means of this Writ Petition. It may be noted that the Petitioner has failed to disclose as to how, when and in what manner alleged Representations were filed. Endorsement on it does not show who received it. Endorsement on Annexure-8 to Writ Petition shows that it is got received in some Complaint Cell. ( 4 ) LEARNED Counsel for the Petitioner, at the outset, submitted that present Writ Petition, as far as the relief regarding appointment on a higher post in Class III post is concerned, is not pressed. Endorsement on Annexure-8 to Writ Petition shows that it is got received in some Complaint Cell. ( 4 ) LEARNED Counsel for the Petitioner, at the outset, submitted that present Writ Petition, as far as the relief regarding appointment on a higher post in Class III post is concerned, is not pressed. ( 5 ) EVEN otherwise, the Petitioner having once accepted an appointment on Class IV post, cannot be permitted to re-open the closed chapter. ( 6 ) PETITIONER, once appointed on Class IV post in the past, cannot claim in future, in view of his educational qualification, reconsideration of his case on Class III post. Having accepted appointment on Class IV Post, may be under unavoidable and compelling situation, question of "distress" or "immediate hardship," which is a condition precedent for compassionate appointment, does not arise. Apex Court in 1998 (33) ALR 468 (SC), Director of Education (Secondary) v. Pushpendra Kumar and this Court in 1999 (83) FLR 617 (All) held that existence of "distress" is sine qua non for seeking compassionate appointment. ( 7 ) THIS Court takes notice of the judgment and order dated 11. 12. 2000 passed by learned Single judge in Writ Petition No. 1846 (S/s) of 1996, Sudhakar Srivastava v. Deputy Director of education (Secondary), IX Region, Faizabad and Ors. , wherein, a learned Single Judge made a sweeping observation to the effect that-if a person, under compelling circumstances, accepted compassionate appointment on Class IV post on being offered to him that will not deprive such a person in future to claim a higher post according to his educational qualifications. ( 8 ) THE above conclusion is without referring to the aims and objects, and various provisions of dying in Harness Rules as well as ignoring binding precedents rendered by Supreme Court directly touching the issue in question. The said judgment, therefore, cannot be treated as a binding precedent having force of law and have to be treated as per incurrium. Supreme Court judgments are binding on this Court. It is mandatory upon this Bench to decide this case, following the principles of consistency and finality, in accordance with the judgment of the Apex court in the case of State of Haryana v. Naresh Kumar Bali, (1994) 4 SCC 448 and State of rajasthan v. Umrao Singh, (1994) 6 SCC 560 (Para 8 ). It is mandatory upon this Bench to decide this case, following the principles of consistency and finality, in accordance with the judgment of the Apex court in the case of State of Haryana v. Naresh Kumar Bali, (1994) 4 SCC 448 and State of rajasthan v. Umrao Singh, (1994) 6 SCC 560 (Para 8 ). ( 9 ) THE judgment of the learned Single Judge in the case of Sudhakar Srivastava (supra), without noticing aforesaid two judgments of the Supreme Court has to be ignored and need not be referred to the Honble the Chief Justice for constituting a Larger Bench to reconsider the matter. ( 10 ) FOR compassionate appointment, availability of post is not a condition precedent. It is now well-settled that a Class-III, post (for which a claimant may be eligible according to his academic qualifications under Dying in Harness Rules) not being available, job may be offered on Class iv post, if available, and if that also is not available then supernumerary Class IV post be created. The object and the genesis of compassionate appointment is on account of "immediate hardship" and to mitigate distress in the family of a deceased employee. It is not planned and cannot be delayed or postponed, as that will frustrate the very object of the compassionate appointment. [see (i) JT 1994 (3) SCC 525 (Pr. 2 to 7), Umesh Kumar Nagpal v. State of haryana and Ors. , (ii) (1996) 2 UPLBEC 843 (49), Haryana State Electricity Board v. Naresh tiwari and Anr. and (iii) JT 1996 (6) SC 7, The State of Bihar and Ors. v. Samusuz Zoha etc. ]. Contingency and need to make compassionate appointment is in itself a per force outcome of compulsive situation arising from unforeseen circumstances. Claimant for compassionate appointment cannot be allowed to claim higher post in future as by that time distress and immediate hardship do not survive after accepting job may be lone Class IV post. Permitting promotion/appointment to higher grade will be in negation of the very object of compassionate appointment under Dying in Harness Rules. Therefore, once having accepted an appointment, may be on Class IV post under existing situation out of will and volition, the chapter of Dying in Harness is closed. Permitting promotion/appointment to higher grade will be in negation of the very object of compassionate appointment under Dying in Harness Rules. Therefore, once having accepted an appointment, may be on Class IV post under existing situation out of will and volition, the chapter of Dying in Harness is closed. No one should be permitted to re-agitate this matter in future on the basis of change of circumstances in future leaving everything in turmoil and in a state of indecisiveness. It if is permitted, no litigation will ever come to an end. Similar view, though under different circumstances but practically under similar situation, has been taken by the Apex Court in arvind Kumar Kankane v. State of U. P. and Ors. , JT 2001 (6) SC 260 in the matter of exercise of option for subject while considering admission in Medical Courses. ( 11 ) THE second submission of the Petitioner is that Petitioner should not be treated as a temporary employee on the basis of his appointment letter dated 18. 4. 2000/annexure-6 to the writ petition. The contention of the petitioner has substance and deserves to be accepted for the following reasons : the appointment letter itself shows that Petitioner offered appointment on the probation of one year. Earlier recital in the appointment letter to the effect that petitioners services were temporary and liable to be determined without prior notice gets nullified by subsequent recital providing for appointment on probation. Even otherwise, it is now well settled through several decisions of this Court that appointment under Dying in Harness Rules on compassionate ground should not be for short term or on temporary basis. This Court has held time and again that compassionate-appointee is not to be left on the mercy of the authorities offering employment, refer to 1999 (2) ESC 972 (DB) and 1991 ALJ 1475. ( 12 ) PETITION stands partly allowed to the extent indicated above. ( 13 ) NO order as to costs. .