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2024 DIGILAW 103 (UTT)

Sunil Purohit v. State of Uttarakhand

2024-02-21

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : RAKESH THAPLIYAL, J. 1. The present Special Appeal is preferred against the judgment and order dated 29.09.2023, passed by the learned Single Judge in Writ Petition (S/S) No. 1489 of 2023, whereby, the Writ Petition was dismissed. 2. There is a delay of 66 days in preferring the instant Special Appeal. Delay is not opposed by the learned counsel for the respondents, and therefore, the Delay Condonation Application is allowed and delay in filing special appeal is condoned. 3. Brief facts of the case are that the father of the petitioner/appellant was a regular employee of GMVNL in a class-IV post, who died on 23.05.2019. Thereafter, the petitioner/appellant submitted a representation on 18.09.2019, claiming compassionate appointment being a son of the deceased employee under the dying-in-harness rules. Along with the application, the petitioner/appellant submitted his certificate of educational qualification. Subsequently, the claim of the petitioner/appellant was considered and he was offered the compassionate appointment by an order dated 19.09.2020 on the post of Ardali (class-VI post). 4. This compassionate appointment was on probation for a period of one year, which he voluntarily accepted by reporting joining on 17.10.2020. After completion of one year probation period, the petitioner/appellant was confirmed on 30.10.2021. 5. The petitioner/ appellant earlier preferred a Writ Petition, bearing Writ Petition (S/S) No. 593 of 2022, which was decided by this Court by an order dated 07.04.2022, whereby, the respondents were directed to decide the representation of the petitioner and pursuant to the direction of this Court, the representation of the petitioner/appellant was rejected by the Managing Director, Garhwal Mandal Vikas Nigam Limited (hereinafter to be referred as “GMVNL”) by an order dated 11 July, 2022, and being aggrieved with the said order, the petitioner/appellant again approached to this Court by means of Writ Petition (S/S) No. 1489 of 2023, which was dismissed on 29.09.2023 and being aggrieved with the same, instant appeal has been filed. 6. Subsequently, a writ petition was filed by the petitioner with the following reliefs: “(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11/07/2022 (Annexure No. 2 to the petition) passed by respondent no. 2. (II) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 6. Subsequently, a writ petition was filed by the petitioner with the following reliefs: “(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11/07/2022 (Annexure No. 2 to the petition) passed by respondent no. 2. (II) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 2 to consider the claim of the petitioner on class III post and give him joining on class III post as per his educational qualification. (III) Issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case may kindly be passed. (IV) Award the cost of the petition.” 7. The main ground of challenging the order dated 11.07.2022 before the learned Single Judge was that though the petitioner/appellant was appointed on class-IV post but he was assigned different work and when he was appointed, he was in Tourism Store, from where on 25.08.2021, he was transferred to e-Governance Cell and assigned the work of data digitization. Subsequently, by an another office order dated 02.09.2021, petitioner/ appellant was assigned the work of reservation section in addition to his work of Tourism Store, which was assigned to him. Apart from this assignment of different work, it is also contended that the petitioner/appellant is a graduate and having all eligibilities for appointment to class-III post. Consequently, he submitted a representation again on 11.01.2021 before the respondents stating therein that the petitioner/appellant is a graduate, having computer diploma, as such requested for his claim for appointment on class-III post. 8. Admittedly, the representation was made after acceptance of appointment on class-IV post, which was offered to the petitioner/appellant on 19.09.2020, which he voluntarily accepted by giving his joining on 17.10.2020. This is the main bone of contention of the petitioner/appellant before the learned Single Judge for seeking appointment on class-III post after accepting the offer of appointment on class-IV post under the dying-in-harness rules. 9. This is the main bone of contention of the petitioner/appellant before the learned Single Judge for seeking appointment on class-III post after accepting the offer of appointment on class-IV post under the dying-in-harness rules. 9. The other contention which was raised before the learned Single Judge was that the petitioner/appellant filed an application under the Right to Information Act and in reply thereof, certain informations were supplied and it has been informed that in the year 2000 one Rama Shankar, who was working as a labourer (Concrete) in GMVNL passed away while in service and his dependant Fauj Dar was appointed on compassionate ground on class-III post after considering his education qualification. After getting this information, the petitioner/appellant sent several reminders, wherein, he claimed for considering his candidature for appointment as fresh on compassionate ground in class-III post. 10. It was further contended in Writ Petition that though the petitioner/appellant was called by respondent No. 2 giving all information but when no positive action was taken by the respondents, then he preferred Writ Petition (S/S) No. 593 of 2022, which was disposed of by this Court on 07.04.2022 by directing the respondents to decide the representation, which was rejected by the order which was under challenge before the learned Single Judge. 11. In the Writ Petition, one another instance of one Jagat Singh, was also given, who was working as Chowkidar in GMVNL and he died while in service and his dependant Sanjay Singh was offered appointment on compassionate ground in class-III post on 07.05.2022. 12. The respondents filed their counter affidavit, wherein, a specific objection was raised, particularly, in reference to para 18 of the writ petition, wherein instance of another deceased employee was given, whose dependant was given appointment in class-III post and in response thereto in the counter affidavit, it was submitted by the respondents that these are not those cases which after accepting the first offer of appointment on compassionate ground, the employee concern seeks up-gradation of the appointment. In the counter affidavit, it was further contended by the respondents that the respondents department received an opinion from the Law Department of the State and the Law Department opined that once an appointment has been given on class-IV post, the same cannot be converted /upgraded to class-III post. 13. In the counter affidavit, it was further contended by the respondents that the respondents department received an opinion from the Law Department of the State and the Law Department opined that once an appointment has been given on class-IV post, the same cannot be converted /upgraded to class-III post. 13. The learned Single Judge after considering the averments as made in the Writ Petition and the stand as taken by the respondents dismissed the writ petition by the impugned judgment which now has been assailed by the present appellant by the instant Special Appeal. 14. A specific ground has been taken in the appeal that the respondents/department has adopted a selective approach in appointing some candidates to class-III post and other to class-IV posts on compassionate ground. 15. We have gone through the impugned judgment, wherein the learned Single Judge dismissed the writ petition on the ground that once the compassionate appointment is accepted, the same cannot be permitted to be upgraded. 16. No doubt, it is a settled principle of law that giving appointment to the dependant of the deceased employees, who died in harness is only a beneficial scheme so that the family of the deceased employee may not suffer from any financial crisis due to untimely death of the deceased employee. Since it is a beneficial scheme and as such no one can claim as a matter of right to get appointment on compassionate ground. Here in the present case, the compassionate appointment offered to the petitioner, who voluntarily accepted the same without any protest and after accepting, he also completed the probation period and after completion of probation period, he was given the status of the confirmed employee. 17. This aspect clearly reveals that with open eyes the petitioner/appellant accepts the offer of appointment in class-IV post without any protest and once he voluntarily accepts the said order, then he subsequent thereto cannot claim the compassionate appointment on a higher post. Once an offer is given under the dying-in-harness rules and the same is accepted, then no one can further claim either for upgradation of post or to claim to consider his claim for dying-in-harness rules afresh in a higher post. 18. Therefore, we do not find any substance and merit in the instant Special Appeal. The learned Single Judge rightly dismissed the Writ Petition. 19. 18. Therefore, we do not find any substance and merit in the instant Special Appeal. The learned Single Judge rightly dismissed the Writ Petition. 19. Accordingly, the instant Special Appeal being devoid of merit is dismissed.