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2010 DIGILAW 3240 (ALL)

AVADHESH KUMAR SINGH v. UNION OF INDIA

2010-10-21

DEVI PRASAD SINGH, VEDPAL

body2010
JUDGMENT By the Court.—Heard learned counsel for the petitioner, learned counsel for the respondents and perused record. 2. Present writ petition under Article 226 of the Constitution of India has been preferred against the impugned order passed by the Central Administrative Tribunal Lucknow, whereby the original application filed by the petitioner has been dismissed with regard to his claim for appointment on Group-C post on compassionate ground. 3. Brief facts of the case are that the petitioner’s father Sri Krishna Pal Singh was a Khalasi (Group-D post) in India Railways. He died in harness on 13.9.2991. After his death, an application was moved by petitioner’s mother for petitioner’s appointment on the post of Khalasi. While moving the application, the petitioner also appeared in test for appointment against Group-C post on compassionate ground. The petitioner could not succeed in suitability test for Group-C post since he could not secure requisite percentage of marks. Hence petitioner’s claim with regard to appointment on compassionate ground against Group-C post, was turned down. However, the petitioner was appointed keeping in view the original request against Group-D post. Apart from failure in suitability test, the other reason for not selection and appointment, was the absence of vacancy at the relevant time. Under these circumstances, the petitioner was appointed against Group-D post by the order dated 13.5.1992. 4. The petitioner approached the Central Administrative Tribunal with the grievance that since he is Intermediate, he should have been appointed on Group-C post. The Tribunal dismissed the original application firstly on the ground that the petitioner could not succeed in suitability test and secondly, he has applied for appointment against Group-D post hence he cannot be considered for appointment on Group-C post. Feeling aggrieved with the Tribunal’s order, the present writ petition has been preferred. 5. While assailing the impugned order petitioner’s counsel invited attention of this Court to the Circular dated 31.3.1984 (Annexure No. 5 to the writ petition) and other Circulars dated 3.2.1981 and 30.4.1979 (Annexure No. RA-1 and RA-2). Learned counsel for the petitioner also relied upon the judgment of Apex Court in Valsala Kumari Devi M. v. Director, Higher Secondary Education and others, (2007) 8 SCC 533 , as well as Anjani Pratap Singh v. State of U.P. and others, 2008 (26) LCD 82. 6. Learned counsel for the petitioner also relied upon the judgment of Apex Court in Valsala Kumari Devi M. v. Director, Higher Secondary Education and others, (2007) 8 SCC 533 , as well as Anjani Pratap Singh v. State of U.P. and others, 2008 (26) LCD 82. 6. On the other hand, it has been submitted by respondent’s counsel that since the petitioner could not succeed in suitability test, he lost his right to claim appointment on the Group-C post. It has further been submitted that once the petitioner was considered against Group-D post on the basis of application for compassionate appointment, and appointment was made, the petitioner lost his right to claim appointment against Group-C post. Respondent’s counsel relied upon the case in State of Rajasthan v. Umrao Singh (1994) 6 SCC 560 , as well as another judgment in I.G. (Karmik) and others v. Prahalad Mani Tripathi, (2007) 2 SCC (L&S) 417. 7. The circular dated 31.3.1984 provides that where a candidate is adjudged suitable for Group-C and could not be appointed to such a post for want of a vacancy therein and he is offered and he accepts a post in Group-D, he may be considered for Group-C post whenever vacancy arises. So far as the present case is concerned, it seems to be not covered by the circular dated 31.3.1984 where things stand on different ground. In the present case, the petitioner appeared in the examination and could not succeed in the suitability test. Since the petitioner has not succeeded suitability test, he loses his right to claim appointment against Group-C post. 8. So far as the submission of petitioner’s counsel claiming protection of Circular dated 3.2.1981 and 30.4.1979 (Annexure No. RA-1 and RA-2) is concerned, since the petitioner himself appeared in suitability test and not raised any objection with regard to outcome of suitability test, he has got no right to claim shelter of other circulars. In case the petitioner was having any grievance with regard to suitability test, then he should have approached the Court at the relevant time to install his claim to defend his cause. 9. Further submission of petitioner’s counsel is that the petitioner should have been given other chance even if he could not succeed in his test. That stage is now, over. 9. Further submission of petitioner’s counsel is that the petitioner should have been given other chance even if he could not succeed in his test. That stage is now, over. The petitioner accepted appointment on Group-D post and never install his claim to appear in the suitability test for second or third time. Once the petitioner himself accepted appointment on Group-D post, and has not succeeded the suitability test, he has got no right to claim chance to appear for suitability test for appointment on Group-C for second or third time. 10. In the case reported in Umrao Singh (supra), their lordship held that once right has been consummated, then any further or second consideration on higher post on the ground of compassion, would not arise. Relevant portion of the judgment of Umrao Singh (supra), (para-9) is reproduced as under : “9. Since both the sides relied on Naresh Kumar Bali’s case, we will not refer to the same. We have indicated our mind in that very ruling in paragraph 15 of the said judgment. It reads as under: (SCC p.452, para 15) “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 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.” (emphasis supplied) Therefore, once the right has consummated as we indicated earlier, any further or second consideration for a higher post on the ground of compassion would not arise.” 11. Aforesaid proposition of law has been reiterated by Hon’ble Supreme Court in the case of Prahalad Mani Tripathi (supra). 12. So far as the case of Anjani Pratap Singh (supra) is concerned, it does not seem to cover the field more so in view of the law pronounced by Hon’ble Supreme Court referred to hereinabove. The case of Anjani Pratap Singh seems to be a judgment per inquirium without considering the law settled by Hon’ble Supreme Court. Hence lacks binding effect. 13. The case of Anjani Pratap Singh seems to be a judgment per inquirium without considering the law settled by Hon’ble Supreme Court. Hence lacks binding effect. 13. Other case law of Valsala Kumari Devi M (supra) relied upon by the petitioner’s counsel, relates to promotional avenues and does not relate to compassionate appointment covering the present facts and circumstances of the case. In view of the above, the impugned order passed by the Central Administrative Tribunal, does not suffer from any infirmity or impropriety. 14. The petition is devoid of merit and is accordingly dismissed. —————