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2021 DIGILAW 375 (UTT)

SONU KUMAR v. STATE OF UTTARAKHAND

2021-07-29

SHARAD KUMAR SHARMA

body2021
JUDGMENT Hon'ble Sharad Kumar Sharma, J. (Through Hybrid Mode) The petitioner to the present writ petition, on the death of his late father Shyam Lal on 24th July 2013, claiming his appointment under the Rules called as the “Uttarakhand Dying in Harness Rules, 2003", had filed an application for appointment on the said ground, before the Executive Officer, Nagar Panchayat, Lal Kuan, District Nainital, claiming that on the date of the death of his late father, who was working with the respondent, as a Class-IV employee, since the petitioner was major and he was holding an intermediate qualification, coupled with the fact that the other dependents of late Shyam Lal had given an N.O.C., in favour of the petitioner, the petitioner may be considered for appointment on compassionate grounds, under the said Rules of 2003. 2. The petitioner's application for compassionate appointment was considered by the competent authority i.e. the Chairman, Nagar Panchayat, Lal Kuan, district Nainital and while also considering the implications of Government Order No. 6729 dated 5th November 1992, which was then issued by the State of Uttar Pradesh, offer of an appointment was extended to the petitioner, to be appointed on the post of ‘Sweeper', carrying a pay-scale of Rs. 4400–7440, with Grade Pay payable on it of Rs. 1300/-. 3. The petitioner admittedly had voluntarily accepted the said appointment, and had willingly submitted his joining and ever since his appointment on 1st November 2013, he had been working in the said capacity with the respondents. Later on, at a much belated stage, the petitioner has contended; that since he has ultimately graduated himself and was also holding a Diploma in Information Processing, with System and Database Management, coupled with the fact that since he has got the knowledge of English and Hindi typing too, that would be a qualification, which is compatible for consideration of his appointment on Class-III post, and hence he submits in the present writ petition that his appointment may be converted into a Class-III employee than that from the post on which he was originally appointed as Class-IV employee i.e. Sweeper w.e.f. 1st November 2013. 4. The learned counsel for the petitioner has further contended in the writ petition that on the claim of appointment of the petitioner on the basis of the so-called qualification, which has been mentioned above, in the preceding paragraphs, the petitioner had approached respondent Nos. 4. The learned counsel for the petitioner has further contended in the writ petition that on the claim of appointment of the petitioner on the basis of the so-called qualification, which has been mentioned above, in the preceding paragraphs, the petitioner had approached respondent Nos. 4 and 5, who were the Appointing Authorities of the petitioner and he has contended, that on his claim being raised for being appointment as Class-III employee, based on the qualification he possessed, he was orally assured by the respondents that his claim for conversion to class-III employee would be considered, to be appointed as Class-III employee, apart from the aforesaid assurance; another reason which had been taken as to be the basis, for filing the writ petition for conversion of his appointment from the post of sweeper to a Class-III employee; is because of the fact that the petitioner, has contended that from time to time, as and when there was a work exigency with the Nagar Palika, the respondent Nos. 4 and 5 had often, being asking the petitioner though intermittently to discharge the duties of the ministerial staff. 5. In order to substantiate the aforesaid fact that he was called upon to discharge the duties of the ministerial staff, which is a Class-III post, the petitioner had quoted some of the examples, when he was asked by the respondents to discharge the duties of a class three employee, for example: a) It was on 6th April 2016, the petitioner was asked to collect the parking tax. This Court on going through the documents, found, that if the documents thus conferring him the responsible to work for collecting parking taxes on 6th April 2016, is taken into consideration, in fact, it was only a one-day arrangement, which was made, whereby the petitioner was asked to assist the Class-III employee, Urva Dutt, who was engaged in the work of collecting the parking taxes. It was not creating any lien in favour of the petitioner. The scrutiny of the said document dated 6th April 2016 (Annexure 3 to the writ petition), would itself reveal that it was not an appointment or a permanent assignment of work, to the petitioner to collect the parking fee but rather only a temporary arrangement. It was not creating any lien in favour of the petitioner. The scrutiny of the said document dated 6th April 2016 (Annexure 3 to the writ petition), would itself reveal that it was not an appointment or a permanent assignment of work, to the petitioner to collect the parking fee but rather only a temporary arrangement. b) Similarly, the petitioner has contended that on 6th June 2016, he was once again asked to recover the taxes, but, yet again, it was only a one-day arrangement, which was made, which will not create any right in favour of the petitioner, to claim a conversion of appointment from Class-IV employee to Class-III employee, merely because, if on account of work exigency he was requested to collect the taxes for a period of one day only which was yet again a temporary arrangement not creating any lien for the petitioner, to continue to work in the said capacity. c) Petitioner contended that it was on 24th October 2016, along with a team of other officials of the Nagar Panchayat, he was also made a member of it as a part time team, which was given the responsibility for identification of the Malin Basti, in pursuance to the Government Order, which was issued by the State for the purposes of identification of and earmarking the Malin Bastis. Once again, merely because of he being constituted, as a member of a team, which had included Class-III employee will not entitled or grant him a status of being a Class-III employee itself, on that count. d) The petitioner submitted that again on 22nd January 2018 he was assigned with the clerical work to decide the objections which were submitted by the different complainants, however this arrangement too was only for one day, whereby he was not actually given the responsibility to decide the objections, but rather was made a member of the committee, to assist the members of the committee who were suppose to decide the objections. e) On 5th March 2018, the petitioner had submitted, that he was also called upon to constitute a member of the Committee, which was assigned with the responsibility to identify the homeless families, residing in the area and he contends, that since there too, he was given a duty of assistant surveyor, he would be entitled for conversion of his appointment from Class-IV to Class-III employee. Once again, on scrutiny of the said document dated 5th March 2018, he was only made, as a member of the supporting staff to the team; it was not a permanent assignment which was given to the petitioner; it was only to meet up the work exigency of the local body. f) The petitioner submitted that he would be entitled to be posted as a Class-III employee; for the reason being, that the respondent Nagar Panchayat on 12th July 2018, had posted him in the Control Room, Lalkuan District Nainital and since he was given a charge of the flood control room because of the fact that the Class-III employee, who was then deputed, with the said responsibility was not available on that day on account of administrative reasons, but here again, it was yet again an arrangement only and not a permanent assignment creating any lien or determining right of the petitioner. g) The petitioner submitted that on 14th September 2018, he was assigned with the work of supervision and monitoring the activities, which were being held between 15th September to 2nd October, in a program, which was sponsored as per the directives of the Government of India dated 7th September 2018, known as ‘Swachhata hi Seva'. This appointment too, it was on a day to day basis and yet again, the nature of work, which was being discharged under the said programme of the Government of India by the petitioner was yet again in the same capacity as that of a Class-IV employee. h) The petitioner's counsel has further contended, that under the Solid Waste Management Program, as enforced by the Director's communication dated 12th April 2019, the petitioner contends that on 16th April 2019, since he was providing an information to the Nodal/Assistant Nodal Officer in relation to the work discharged for the management of the Solid Waste Management, that in itself would not mean that he was given a permanent assignment of a Class-III employee, because yet again in this arrangement too, his nature of appointment and work also, continued to be discharged as that of Class-IV employee. i) In support of his contention the petitioner's counsel has contended that in a Scheme, for door to door collection of solid waste management, the work pertaining to segregation of biodegradable and non-biodegradable waste, he was deputed with the responsibility to discharge the said work from door to door basis by the communication made on 17th May 2019, hence would be entitled to be assigned with Class-III status. 6. On the scrutiny of each of the documents, where only intermittent arrangement, was made, where the petitioner was given with the responsibility, to either assist in a team of Class-III employees or to be a member under the schemes which were floated by the Directorate of local bodies or by the Government of India, for the purposes of regulating the solid waste management, that in itself will not infer that by the implications of these orders (Annexure 3 to the writ petition), the petitioner automatically acquires the status of being a Class-III employees, particularly in the light of the fact that the principal order of appointment dated 1st November 2013; its nature, the continuance of the petitioner on the said post and drawing the salary, as was admissible to the said post in pursuance to the letter of his appointment issued, remained the same and if the employer, because of certain programs, which were floated by the state or the Government of India and it assigns the responsibility to an already working staff, that in itself doesn't infer, that it was creating any lien in favour of the petitioner, to be considered for an appointment as Class-III employees and that too when all these assignments which has been assigned to the petitioner from time to time, were for approximately after 5 to 7 years of his initial appointment of 1st November 2013. 7. In order to further substantiate his case, the petitioner has submitted that in relation to one of the identically appointed employee namely Smt. Soni, who was too initially she was appointed as a sweeper but was later on posted as a clerk and hence he contends that there is a discrimination which has been meted out to him at the hands of the respondents, and hence his nature of appointment, as accorded to him on 1st November 2013, deserves to be changed to a Class-III employee. 8. 8. On the scrutiny of the information, which was said to have been supplied to the petitioner under the Right to Information Act, in relation to the appointment made of Smt. Soni, if the said order itself is taken into consideration, in fact, as per the record, it is not a conversion of a Class-IV post of an employee into a Class-III post, which was granted to Smt. Soni, but rather the order itself reveals, that she was in fact granted promotion on the post of clerk, on the basis of her eligibility. The said appointment of Smt. Soni, hence for that reason, that it was an appointment made by way of promotion that she was asked to discharge the work of a clerical post, it cannot be said that it was the conversion to the nature of appointment made for, which a similar claim was raised by the petitioner. 9. The petitioner submitted, that in yet another Municipality of Doiwala, District Dehradun, an identically appointed Class-IV employee Mr. Ashwani Kumar, who was initially appointed as a Sweeper on compassionate grounds under the Rules of 1974, in that said case had submitted a representation on 3rd September 2015, i.e. immediately within one month of his appointment made on 30th August 2015, on compassionate ground that the Nagar Palika, Doiwala District Dehradun had passed a resolution and posted Mr Ashwani Kumar, as against the supernumerary post of clerk carrying the pay scale of Rs. 5200-20200/- with a grade pay of Rs. 1900/-. No equivalence to the appointment made of Mr Ashwani Kumar, by the other independent Local Body of Doiwala could be claimed by the petitioner for two reasons. 5200-20200/- with a grade pay of Rs. 1900/-. No equivalence to the appointment made of Mr Ashwani Kumar, by the other independent Local Body of Doiwala could be claimed by the petitioner for two reasons. One, Nagar Palika, Doiwala, District Dehradun is an independent local body, which is constituted under the provisions of the Municipalities Act and the treatment given to its employees, by their respective employer therein, the same analogy or principles cannot be brought into and made applicable or effect qua the local bodies, which are much distinct in its existence, constitution and creation under law, and the second reason for not accepting that contention of the learned counsel for the petitioner, is for the reason being that there, Mr Ashwani Kumar immediately, after his appointment being made on 30th August 2015, has raised his claim for appointment as a Class-III employees, within a reasonable period i.e. on 30th September 2015 i.e. hardly within a week of his appointment, which was considered and ultimately he was appointed by creation of a supernumerary post unlike in this case, where after accepting the appointment made on 01.11.2013, claim was raised after a much belated stage on 20.06.2019. 10. It is not a case which could be said to be similar to that of the petitioner for the reason being that hear the petitioner has accepted the appointment on 1st November 2013, and had never objected to the said appointment rather had voluntarily joined and worked for a sufficient long period i.e. now almost more than 8 years from the date of initial appointment and hence no equivalence can be claimed by the petitioner or can be extended to the petitioner in seeking conversion of his post as compared to that of Mr Ashwani Kumar for the reasons already referred above. 11. 11. The petitioner has contended, that the raising his claim, he had submitted his representations on 19th March 2018 and 2nd December 2018, praying that his appointment which was made on 1st November 2013, ought to have been converted as a Class-III employee is the pleading which is contrary to the claim which was raised in the representations, because in the representations the petitioner has contended that he may be considered for promotion as a Class-III employee and it was not a representation, where he had prayed for conversion of his Class-IV appointment into Class-III thus the pleadings of the writ petition, are contrary to the documents itself relied by the petitioner. 12. Learned counsel for the petitioner further submitted that the petitioner's claim for appointment as Class-III employee ought to have been considered in the light of the Government Order dated 5th November 1992, as it was issued by the then State of Uttar Pradesh, which contemplates that the appointment which are to be made under the Dying in Harness Rules, has had to be compatible to the qualification possessed by the candidate, but the petitioner has lost sight of the fact that the said Government Order, create itself restrictions that even to the appointments which are to be made on the basis of the qualification possessed by a candidate by observing that the said Government Order, would not include within itself the posts which are to be filled under the Centralised Service Rules and further the said Government Order was also classifying, that the appointments cannot be made over and above the post which was held by the deceased employee against whose post, the appointment on compassionate ground is to be made or was sought to be made. 13. The learned counsel for the petitioner has submitted that based on the principles of the Government Order of the then State of Uttar Pradesh dated 5th November 1992; the state of Uttarakhand had diluted the modalities for appointment on compassionate ground by issuance of the Government Order dated 27th July 2011; wherein a general direction was issued to the local bodies for relaxing the restrictions, which were imposed by the Government Order of the state of Uttar Pradesh dated 5th November 1992. If the aforesaid principles of 1992 Government Order is to be read in relation to the changed modalities, as it was made applicable by the state of Uttarakhand by the Government Order dated 27th July 2011, is concerned, yet again it will not cover the issue under the given facts and circumstances, in relation to the petitioner for the reason being, that these Government Orders, were in existence even prior to the petitioner's appointment which was made on 1st November 2013 and if at all the petitioner had any claim, to seek for an appointment as a Class-III employee on the basis of the aforesaid amended government order dated 27th July 2011 (Annexure 8 to the writ petition), in that eventuality, the petitioner ought not to have accepted the letter of appointment which was offered to him on 1st November 2013, and rather could have then itself raised his claim for being appointed as Class-III employee without accepting the appointment, if at all it is tenable in the eyes of law. But since after having voluntarily accepted the appointment and after having worked for such a long period and thereafter agitating a belated claim based on the basis of the government order, which was pre-existing even prior to his appointment it cannot be taken into consideration, because his acceptance of appointment and his joining to the said post itself meets the very social welfare purpose and intention of Dying in Harness Rules, which contemplates for giving an immediate reprieve to the bereaved family of the deceased employee whose breadwinner has been lost due to any uncalled for eventuality. 14. The petitioner in his argument, through his counsel, had submitted that respondents No. 2 on 14th September 2015, has written to respondent No. 5, whereby it has provided, that the appointment of the dependents under the harness rules has to be made as per the qualification, but if the said government order is yet again taken into consideration, the said government order dated 14th September 2015, issued by respondent No. 2, was for the purposes of consideration of promotion and not for the purposes of initial appointment, which has to be initially made on compassionate grounds. The initial appointment at induction level is in much distinction to the appointments which are to be made by way of promotions, as the parameters of its consideration completely changes as per the respective service rules. 15. The petitioner submitted that considering his claim for appointment as a Class-III employee, the Nagar Panchayat has passed various Resolutions, for example, Resolution No. 21 dated 21st August 2015; Resolution No. 15 dated 13th May 2016; Resolution No. 12 dated 2nd December 2018. In fact, if all these Resolutions itself are taken into consideration they have exclusively confined and relate to, that the petitioner's claim would be considered for promotion, but, however as per the view of this Court for even being considered for promotion, there a rider was attached therein that it would be subject to the availability of the post, that the promotion could be considered not otherwise, even in the absence of vacancy on the promotional post. 16. The reference to the aforesaid three Resolutions, for the purposes of supporting the relief claimed in the writ petition, in my humble opinion, that it cannot be made applicable for the reason being that the petitioner in the writ petition has prayed for switching, over of his appointment from Class-IV post to Class-III post, as it was granted on 1st November 2013, and accepted by the petitioner, whereas the aforesaid Resolutions, on which the reliance has been placed, were exclusively only for the purposes of considering the candidature of the petitioner subject to the condition that a vacancy on the promotional post of Class-III employee is available. 17. The judgement of the Hon'ble Apex Court, particularly that as reported in a Judgments Today 1996 (5) S.C. 319, Himachal Road Transport Corporation Vs. Shri Dinesh Kumar, in para 9, it has been specifically held that the claim of appointment on compassionate grounds or even for that purposes for promotion too also could only be considered subject to the availability of the vacancy and if no vacancy is available with the organisation in the cadre to which the claim is raised, the claim in itself cannot be considered by creation of a supernumerary post. The relevant para 9 of the said judgement is extracted hereunder:- “9. The relevant para 9 of the said judgement is extracted hereunder:- “9. We are of the view that the Himachal Pradesh Administrative Tribunal acted illegally and without jurisdiction, in passing the orders dated 27.3.1995 and 6.3.1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even it the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post. We are of the view that directions given by the Administrative Tribunal, in these two appeals, are totally unauthorised and illegal. We are, therefore, constrained to set aside the orders appealed against. We hereby do so and allow the appeals. There shall be no order as to costs." 18. There is yet another judgement which were rendered by the Hon'ble Apex Court, as reported in JT 1996 (9) S.C 197, Hindustan Aeronautics Limited Vs. Smt. A. Radhika Thirumalai, wherein in the said judgement too, which was almost dealing with an identical issue, where a claim was raised for being appointed on compassionate grounds to a particular cadre of post, the Hon'ble Apex Court in para 6 and 9 of the said judgment had specifically held that such an appointment as claimed on compassionate grounds to a particular cadre, could only be considered and granted particularly only when there exists a vacancy, to be filled. Paragraph 6 and 9 of the said judgement are expected hereunder:- “6. In the appellant company appointment on compassionate grounds is governed by rules. Paragraph 6 and 9 of the said judgement are expected hereunder:- “6. In the appellant company appointment on compassionate grounds is governed by rules. Under Rule 78.1 provision is made that one of the dependants of the deceased employee could be considered for appointment in the company in preference to other applicants without being sponsored by employment exchange. But in Rule 78.3 it has been laid down that such appointment would be made depending upon the availability of vacancies in the respective staffing cadre/authorization. In other words, an appointment on compassionate grounds can be made only if a vacancy is available. According to the appellant no vacancy is available since there is surplus labour and the policy of the appellant is to progressively reduce the workforce and with that end in view a ban has been imposed on fresh recruitment and the appellant is also offering incentives for voluntary retirement. The learned Single Judge of the High Court was of the view that in spite of such a ban on fresh recruitment it was obligatory for the appellant to make appointment on compassionate grounds. The learned Single Judge has placed reliance on the following observations of this Court in Sushma Gosain [supra] at p.470: “We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." 9. A situation similar to the present case arose in Himachal Road Transport Corporation vs Dinesh Kumar (supra). In that case this Court was dealing with two cases where applications had been submitted by the dependents of the deceased employees for appointment on compassionate grounds and both of them were placed on the waiting list and had not been given appointment. They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observed : “..... They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observed : “..... In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the concerned authorities to create a supernumerary post and then appoint a person to such a post." 19. In view of the aforesaid ratio of the Hon'ble Apex Court, the petitioner's claim, even as per the resolutions of the respondent No. 5, even if it has been recommended to be considered for promotion, apart from the fact that it is not the subject matter, which is taken as to be the foundation of the present writ petition for the claim of switching over the post from Class-IV to Class-III, could only be considered, only where there exists a vacancy and not otherwise. And particularly, in the light of the fact, in the present set of circumstances of the case, where the petitioner himself has voluntarily accepted the appointment way back in 2013 and then thereafter raising a claim at a much belated stage after acceptance of the appointment, without raising any objection at the time of appointment in 2013, now at a belated stage, the change or switching over the post particularly, when the appointment is made on the compassionate grounds, would not be permissible for the reason being that grant of initial appointment itself, since it meets out the very social and legislative purpose of the U.P. Dying in Harness Rules of 1974, the said conversion would not be possible and that too, when the petitioner's claim in the writ petition is not a claim for promotion, nor he has sought any amendment in the order of appointment dated 1st November 2013. 20. In this writ petition, initially, the notices were issued to the respondents and during its tendency, after filing of the respective counter affidavits by respondent Nos. 3, 4 and 5 the petitioner had filed Stay Application, before this Court contending that one post of Muharir has fallen vacant and hence by virtue of filing of a Stay Application, the petitioner has prayed that he may be considered for promotion by the selection committee, as per the government order dated 7th March 2017. 3, 4 and 5 the petitioner had filed Stay Application, before this Court contending that one post of Muharir has fallen vacant and hence by virtue of filing of a Stay Application, the petitioner has prayed that he may be considered for promotion by the selection committee, as per the government order dated 7th March 2017. At this stage, this Court, feels it to be appropriate to point out that an affidavit filed along with the Stay Application, will not constitute to be a pleading or a part of the pleadings which has been raised in the writ petition, hence the facts pleaded therein in the interim relief application cannot be independently considered while deciding this writ petition on its own merits and that too particularly when the legal implications of the same would be that the Stay Application thus preferred by the petitioner i.e Civil Miscellaneous Application No. 15933 of 2019, stood rejected by the coordinate Bench of this Court vide its order dated 3rd December 2019, the effect of rejection of the Stay Application, which was supported with the affidavit would be that an affidavit in support of the Stay Application only and not a fact which is pleaded to be brought on record by way of an amendment and the consequential effect would be that with the rejection of the Stay Application, the facts of the affidavit were too declined to be considered by the Court and was also laid to rest. 21. An identical situation emerged when the petitioner filed, yet another Application, for the grant of an interim order, being Application No. 2682 of 2020, yet again along with an affidavit in support thereto, which too was considered by the co-ordinate Bench of this Court and the same was rejected on 25th September 2020, same analogy and legal effect would follow. 22. Hence, for the reasons already dealt with above, the pleadings which were raised in the affidavit filed in support of the 2nd Stay Application, would be deemed to be have been laid to rest with its rejection on 25th September 2020 and it will not be treated as to be a pleadings which were on record of the writ petition, to substantiate the case for switching over of the nature of the appointment from Class-IV post to Class-III post. 23. 23. In the light of the judgements of the Hon'ble Apex Court, which have already been referred above and the relevant portions of which have already been extracted above, if the counter affidavit submitted by respondent No. 3 i.e. the District Magistrate, Nainital, is taken into consideration, in fact, the District Magistrate, Nainital had specifically come up with the case that in the year 2013, when the petitioner's candidature was to be considered for compassionate appointment, at that point of time, there was only one vacant post available and that too of a Class-IV post, which was offered to the petitioner and the petitioner has voluntarily and very candidly accepted and hence in the light of the judgement of the Hon'ble Apex Court, the appointment on compassionate grounds could only be made on an available vacant post, which was done in the case of the petitioner and that too particularly when he had accepted his application without raising any objection he cannot now raise a claim to the contrary, at such a belated stage. 24. An identical proposition, which has been laid down by the Hon'ble Apex Court in the matters of Himachal Road Transport Corporation (Supra), as well as considering the impact of the decision rendered in the matters of Hindustan Aeronautics Limited (Supra), the High Court of Chhattisgarh, also had an occasion to deal with the controversy which was almost identical in nature in the matters of Vimla Diwan and others Vs. State of Chhattisgarh and others reported in 2016 (1) MPJR, 33 wherein while reiterating the aforesaid principles in paragraphs 9 and 10 of the said judgement, ultimately the Court has held in its para 16 of the said judgement, which is extracted hereunder that in an absence of a vacancy on the post on which the appointment is claimed to be granted on compassionate grounds cannot be made and no writ of mandamus as such could be issued to filling up a post for which no vacancy is exists. “16. Thus, on the basis of aforesaid decisions, it is quite vivid that for compassionate appointment availability of post(s) is sine qua non and in absence of vacant post, no mandamus can be issued. “16. Thus, on the basis of aforesaid decisions, it is quite vivid that for compassionate appointment availability of post(s) is sine qua non and in absence of vacant post, no mandamus can be issued. In the present case, admittedly, requisite post for appointment on compassionate ground has not fallen vacant within a period of three years and applicable policy provides for appointment only against regular vacant post, therefore, on that count, the application of petitioner No. 1 has rightly been rejected by the competent authority." 25. In a Division Bench's judgement, rendered by the High Court of Madhya Pradesh (Jabalpur Bench), as reported in 2006 (1) MPJR 239 , Pushpendra Singh Baghel Vs. State of M.P. and Others, the Division Bench has yet again laid down the same principles for the purposes of considering the claim for compassionate appointment and the points of determination which were considered by the Division Bench was that as to whether an appointment on compassionate grounds could be made on the basis of an expectation of an applicant to the compassionate appointment once he has already accepted the appointment and the said judgement has considered the principles laid down in the case of Umesh Kumar Nagpal vs State of Haryana as reported in 1994 (4) SCC 138 . Para 1 of the said judgement of the Division Bench is extracted hereunder, which refers to the findings which has been observed by his Lordship of the Hon'ble Apex Court. The Supreme Court held: “The question relates to the considerations which should guide while giving appointment in public services on compassionate ground.... As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule, which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. However, to this general rule, which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such-family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to be eligible member of the family. The posts in Class III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favorable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased, there are millions of other families which are equally, if not more destitute.... No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased, there are millions of other families which are equally, if not more destitute.... Unmindful of this legal position, some governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above class III and IV. That is legally impermissible.... In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in class II posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on specious ground that the person concerned that technical qualifications such as M.B.B.S., B.E., B. Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment: We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class HI or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments. It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above classes III and IV. It is necessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offer he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity. (emphasis supplied) 26. Thus, on an overall consideration of the facts, the Division Bench of Madhya Pradesh High Court, as referred above, while dealing with the aforesaid perspectives in the context of sub Rule (4) of Rule 7 of the Rules of compassionate appointment, as applicable in the State of Madhya Pradesh has held that the term ‘exigency', for considering the appointment, as envisaged under the Rules for grant of compassionate appointment is for the purposes to meet the urgent and emergent need of the bereaved family. The exigency, which has been referred to under the Rules to meet a particular social objective, cannot be made so elastic as to grant an appointment to the claimant on a compassionate grounds by stretching his expectations even beyond the ambit of the wider parameters which has been laid down by the Hon'ble Apex Court in the judgements as already referred above and particularly if the said principles are made applicable in the circumstances of the present case where the very objective of grant of compassionate appointment was met by granting an appointment to the petitioner by an order dated 1st January 2013 that cannot be sought to be altered according to the expectation of the petitioner and that too at a highly belated stage, after 8 years of acceptance of appointment. Hence, the following conclusion was arrived at by the Division Bench of the Madhya Pradesh High Court, which is extracted hereunder, and if those principles are made applicable, in that eventuality, the prayer sought for by the petitioner in the present case, would not be available. “Conclusion Our decision is not that third respondent should be denied any remedy. The Supreme Court has repeatedly held that in case of custodial death, the family should be given compensation. It is surprising that the State Government has not chosen to extend such compensation to third respondent, even though it has categorically admitted that the death of third respondent's husband was in unexplained circumstances while in the custody of the Special Police Establishment. It would be appropriate if the State Government shows sympathy and compassion to third respondent and her family by giving compensation as is the norm in such cases and also provide an appointment in a Class HI post. As stated at the outset, it is with great reluctance that we are interfering in the matter. But, such interference is absolutely necessary. If the appointment violative of principles relating to compassionate appointments is left undisturbed, it will spawn similar illegal appointments. For the aforesaid reasons, we allow this petition as follows: (i) The order dated 23-8-2004 appointing the third respondent as Commercial Tax Officer (Class II) is quashed. (ii) We, however, recommend to the State Government that appropriate compensation as extended in cases of other custodial death should be offered to the third respondent. (iii) Quashing of the order of appointment will not come in the way of State Government extending to the family of late R. K. Jain, such concession and facilities as are permissible under law, including offer of appointment to a class HI post to one member of the family. (iv) Parties to bear their respective costs. The security deposit by petitioner be refunded to him." 27. (iv) Parties to bear their respective costs. The security deposit by petitioner be refunded to him." 27. The respondent No. 3, in its para 9 of the counter affidavit has reiterated the said stand that the petitioner is now estopped to pray for change over of the post, after acceptance of joining the post, with his consent and without raising any objection; for the reason being, that the Dying in Harness Rules of 2003 or even that of earlier Rules of 1974, do not, at all any stage permit, that a candidate whose eligibility was considered for appointment on compassionate ground, when he was offered an appointment by the employer, keeping in mind the difficulty of the family, it aimed to meet a particular welfare objective and that is why the rules itself never provided any latitude or a provision for switching over of the appointment of an employee, where he has already accepted the same without raising any objection. 28. Similarly, the respondent No. 3, has submitted that in para 10 of the counter affidavit that the Nagar Panchayat, Lal Kuan District Nainital there is no such vacant post of clerk, which was then available in 2013, when the petitioner's claim for appointment was being considered on the compassionate grounds and in the absence of there being an availability of the vacant post, the petitioner could not have been appointed as it has now being claimed by him. 29. The respondent No. 3, has further submitted, that if there is any subsequent creation of the post, after the appointment of the petitioner, which is created on a Class-III post that itself provides the source of its recruitments according to the cadre description of the Nagar Panchayat and the said post of Class-III employee, would only be available to be filled up by way of direct recruitment or by way of promotion; but it cannot be adjusted or made available by changing over of the appointment of the petitioner and that too at a belated stage i.e. after about 7 years of his initial appointment which was made in 2013. 30. As far as the counter affidavit filed by the respondent Nos. 30. As far as the counter affidavit filed by the respondent Nos. 4 and 5 are concerned, they have in para 5 and 11 of their counter affidavit, had specifically taken a case, that the plea raised by the petitioner, that the petitioner was assured to be adjusted as a Class-III employee is absolutely not tenable; because no such assurance which was ever extended to the petitioner nor there is any such document on record to show, that any written assurance was ever extended to the petitioner by the competent authority and they too had specifically denied the claim of the petitioner on the ground that since the petitioner, has voluntarily accepted the joining, without raising any objection, he at this belated stage cannot claim for a change in the cadre, which runs contrary to the legislative intent and the provisions of the Dying in Harness Rules of appointment and that too particularly when an identical stand has also been taken by respondent Nos. 4 and 5 that there was no post of clerk which was vacant at the relevant point of time in 2013. 31. The contention of the petitioner pertaining to the changing over of the appointment, the issue of non availability of the post, the specific denial made by the respondents in their counter affidavit, that no such assurance was ever extended, and the established fact of voluntary joining of the petitioner on the post of Class-IV employee were the facts which were commonly pleaded by the respondent Nos. 3, 4 and 5 in their respective counter affidavits, since it remained un-refuted by the petitioner as no rejoinder affidavit was filed by the petitioner, ever since when for the first time, the time was granted on 3rd December 2019 till the matter was finally heard on 29th July 2021, it will be deemed that the stand taken by the respondent in their counter affidavit was not denied and it would be treated that it would amount to be an acceptance of a fact, which was otherwise not established or pleaded to the contrary by the petitioner by raising any pleading in the writ petition. In that eventuality, the writ petition lacks merit and the same deserves to be dismissed. 32. Accordingly, the writ petition is dismissed. However, there will be no order as to costs.