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2010 DIGILAW 1402 (ALL)

Uma Shankar Yadav v. State of U. P. & Ors.

2010-04-28

ANIL KUMAR

body2010
Anil Kumar, J.;- By means of the present writ petition, the advertisement dated 12.03.2010 published for appointment on the post of Clerk which belong to class-III category in Nehru Smarak Inter College, Pratapgarh in Hindi Newspaper 'Dainik Jagran' is under challenge. 2. Heard Sri R.B.S. Rathour, learned counsel for the petitioner and Sri V.S. Tripathi, learned Additional Chief Standing Counsel and Sri A.M. Tripathi on behalf of opposite parties. 3. Facts in brief as submitted by learned counsel for the petitioner are that the petitioner's father late Raghu Nath Yadav who was working as Class-IV employee in the institution known as Nehru Smarak Inter College, Kodrajeet, Dhanwasa, District Pratapgarh (hereinafter referred to as the Institution), during the tenure of his services died on 07.07.2000. After the death of Sri Raghu Nath Yadav who was sole bread earner in the family, an application on behalf of the petitioner was moved for giving compassionate appointment. 4. He further submits that on the application moved by the petitioner for compassionate appointment, Zila Basic Shiksha Adhiari directed the Committee of Management of the Institution to issue appointment letter to the petitioner on supernumerary post of Class IV employee. Accordingly, O.P. No. 3 on 21.06.2002 issued an order for appointment on Class-IV post in the institution by taking into consideration that at relevant point of time, the qualification which was possessed by the petitioner was intermediate and thereafter the petitioner joined on the said post. 5. Learned counsel for the petitioner further submits that in the year 2005, due to retirement of one Sri Ved Mani Shukla who was working on the post of Clerk which belongs to Class-III category, fell vacant, so the petitioner by way of representation made a request that taking into account the qualification which is possessed by him and requested for appointment on the said post, his case be again considered for appointment on compassionate ground. But his request was not considered on one hand and on the other hand the Committee of Management of the Institution had issued an advertisement on 12.03.2010 (Annexure-1) thereby inviting applications for appointment on the post of Clerk in the Institution in question. Hence present writ petition. 6. But his request was not considered on one hand and on the other hand the Committee of Management of the Institution had issued an advertisement on 12.03.2010 (Annexure-1) thereby inviting applications for appointment on the post of Clerk in the Institution in question. Hence present writ petition. 6. Sri R.B.S. Rathaur, learned counsel for the petitioner while assailing advertisement dated 12.03.2010, by way of calling the applications are called for appointment on the post of Clerk in the Institution in question, submits that the said action on the part of the O.P. No. 3 is totally illegal and arbitrary as the respondent has failed to consider the case of the petitioner for appointment on the said post on compassionate ground in spite of the fact that he possess all the requisite qualifications for appointment. 7. He further submits that the claim of the petitioner cannot be rejected by the O.P. No. 3 on the ground that the petitioner has already accepted compassionate appointment on Class-IV post in the Institution and in this regard he relied on a decision reported in the case of Anjani Pratap Singh Vs. State of U.P. and others 2008 (26) LCD 82 in which it is held as under:- "The record also reveals that on 16.09.2003 recommendation was also made by the Secretary, State Election Commission to the State Government for consideration of the case of the petitioner for appointment on Class III post. It is also evident that on 3.12.2004 a communication was sent by the District Magistrate, Pilibhit to the State Election Commission in which the work and conduct of the appellant was appreciated and recommendation was made for appointment of the appellant on Class III post. We are of the view that while passing the judgment and order dated 5.10.2007 Hon'ble Single Judge has failed to consider these aspects of the matter. It is settled law that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crises resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. The appellant accepted the appointment of Class IV post under compelling circumstances but that will not debar him from agitating the matter for his rightful claim in accordance with the qualification. The impugned judgment and order is legally not sustainable." 8. The appellant accepted the appointment of Class IV post under compelling circumstances but that will not debar him from agitating the matter for his rightful claim in accordance with the qualification. The impugned judgment and order is legally not sustainable." 8. Accordingly, it was argued by the learned counsel for the petitioner that the advertisement as contained in Annexure-1, illegal and arbitrary in nature and is liable to be set aside. 9. I have heard counsel for the parties and perused the record. 10. The provision pertaining to compassionate appointment has been dealt with by the Hon'ble Apex Court subsequent to its decision in the case of Sushma Gosain and others Vs. Union of India and others, AIR 1989 SC 1976 , and the approach pertaining to the provisions for compassionate appointment has undergone major change. This would be apparent from a judgment of Hon'ble Apex Court in the case of Director of Education (Secondary) and another Vs. Pushpendra Kumar and others, (1998) 5 SCC 192 , wherein the Hon'ble Apex Court has observed as under:- "8 The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provide, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of the exception to the general provisions. Further, 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. Therefore, once petitioner 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. It is not planned and cannot be delayed or postponed, as that will frustrate the very object of the compassionate appointment. Therefore, once petitioner 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, leaving everything in turmoil and in a state of indecisiveness. If it is permitted, no litigation will ever come to an end. So in the instant case the relief claimed by the petitioner for cancellation of the advertisement dated 12.03.2010 issued by the O.P. No. 3 thereby calling the application for appointment on the post of Clerk in the Institution in question without considering the claim of the petitioner again for compassionate appointment on the said post as he fulfills all the requisite qualifications for appointment on the post of Clerk which belongs to Class-III category is wholly misconceived and liable to be rejected in view of the judicial pronouncements given by the Apex Court on the point in issue which are referred hereinbelow:- In the case of State of State of Haryana Vs. Naresh Kumar Bali, (1994) 4 SCC 448 , the Supreme Court while allowing the appeal of the State held as under: "Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of a teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a Clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed. The claim for appointment as Inspector was never made earlier." 11. In the case of State of Rajsthan Vs. Umrao Singh, (1994) 6 SCC 560 , the Supreme Court held as under: "Once the respondent accepted the appointment as a Clerk which appointment came to be made on compassionate ground, he cannot lay a further claim for appointment as Sub-Inspector. It cannot be a case of compassionate for all time." 12. In the case of Sanjay Kumar Vs. State of Bihar and others, JT. It cannot be a case of compassionate for all time." 12. In the case of Sanjay Kumar Vs. State of Bihar and others, JT. 2000(10) SC, 156, it has been held by the Hon'ble Apex Court that there cannot be a reservation of vacancy for the dependent of the deceased Government servant, who died-in-harness. 13. In the case of State of Haryana Vs. Vipin Kumar, AIR 2002 SC 2867 , the Hon'ble Apex Court held that the purpose for compassionate appointment is not to confer a status on a family and no person can claim to have the same post, or a particular post, hierarchy and cadre. It is for the employer to consider and decide as to how and on which post the appointment on compassionate basis has to be made. 14. So far as the reliance, placed by the petitioner on the judgment rendered by this Court in the case of Anjani Pratap Singh Vs. State of U.P. (Supra) is concerned Admittedly, while passing the abovesaid judgment this Court had not taken into consideration the judgments passed by the Hon'ble Apex Court on the point in issue. Therefore the same cannot be treated as 'binding precedent' having force of law and have to be treated as per 'in curiam' as Supreme Court judgments are binding on this Court. So the petitioner cannot derive any benefit from the case of Anjani Pratap Singh Vs. State of U.P. (Supra) as it is no longer open to the petitioner to lay a further claim for appointment on the post of Clerk as held by the Hon'ble Supreme Court, once he accepted the appointment on compassionate ground on Class-IV post in the Institution in question, so the matter regarding compassionate appointment comes to an end and no further appointment under the Dying-In-harness Rules could be made in his favour 15. For the foregoing reasons, the present writ petition filed by the petitioner lacks merit and is accordingly dismissed. 16. No order as to costs.