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2012 DIGILAW 717 (UTT)

MADAN LAL TIWARI v. SUPERINTENDENT OF POST OFFICE

2012-12-03

KALYAN JYOTI SENGUPTA

body2012
JUDGMENT Hon’ble Kalyan Jyoti Sengupta, J. (Oral) This is the second round of action by the petitioner whereby and whereunder the order dated 30.03.2007 is challenged. 2. The fact of the case is as follows: The father of the petitioner one Late Sri Vatchaspati Tiwari was appointed at Village Branch Post Master in Purval Gaon in the year 1972. He died in harness on 01.03.2002. Consequent upon his death, the petitioner applied for compassionate appointment, however, such application was rejected by an order dated 14.05.2003. Thereafter, the petitioner challenged the said order by filing writ petition before this Court which was registered being WPSS No. 721 of 2003. The said writ petition was heard by the learned Single Judge of this Court. During the pendency of the writ petition, the petitioner, pursuant to an advertisement issued to fill up the post of “Dakpal”, applied intending to participate in the selection process. Before the advertisement was issued, the petitioner for some time was engaged by the Department on adhoc basis to serve as “Dakpal” in the same post. Taking note of the aforesaid fact, the learned Single Judge by an order dated 20.02.2007 disposed of the writ petition by passing following order: “In the circumstances stated above, I deem it fit and proper to direct the respondents to consider the candidature of the petitioner for the post of Village Dakpal in accordance with law and may consider sympathetically the fact that petitioner’s father, who was working as Village Dakpal, died in harness and petitioner had also worked as Village Dakpal with the respondents as alleged by petitioner and may also consider to give weightage.” 3. Thereafter, the selection process in which the petitioner along with respondent No. 2 participated was over by selecting the candidate. The respondent by the impugned order took decision and mentioned therein that appointment of the petitioner could not be considered as in the selection process he stood forth amongst the five candidates. It is also mentioned in the order that direction in the order dated 20.02.2007 could not be acceded to as the Departmental Rule does not permit so. In the back ground of the aforesaid fact now it is admitted position that respondent No. 2 has already joined the post and there has been no interim order restraining the respondents from filling up the post. 4. In the back ground of the aforesaid fact now it is admitted position that respondent No. 2 has already joined the post and there has been no interim order restraining the respondents from filling up the post. 4. In the aforesaid factual background, learned counsel for the petitioner submits that the order of this Court has been flouted by the respondent by not carrying out direction given therein. 5. I fully agree with the submission of the learned counsel for the petitioner that recording as above in the impugned order patently amounts to violation of the order of the Court. 6. The learned counsel for the respondent on the other hand says that the order of this Court passed earlier is not contrary to the provision of law. I am unable to accept this contention, when an order is passed by this Court and no appeal is preferred therefrom, it reaches its finality regardless of the provision of law. If any order is contrary to the provision of law, the same should have been set right by initiating judicial proceeding before the appropriate forum. Therefore, above order has been accepted by not taking any step against the said order of this Court. The said order is deemed to have been accepted. There is no escape of the respondent, but to carry out the same I, therefore, set aside this order as it has been passed in complete disregard to this Court. 7. The intention of the Court in the earlier order is very clear that the compassionate appointment claimed by petitioner cannot be ignored all together. As the petitioner took recourse to participate in selection process, in an open competition, claim for compassionate appointment was directed to be given extra weightage. In the impugned order no such weightage has been given. But in spite of this order being set aside, I cannot direct the respondent to give appointment to the petitioner as respondent No. 2 is a bonafide candidate and responded to the advertisement and was selected, his appointment cannot be cancelled. I direct the respondents to accommodate the petitioner to any vacant post of “Dakpal” available, if not available, on the first available vacancy, he must be accommodated. 8. With the aforesaid findings and direction the writ petition is allowed. 9. No order as to costs.