The Allahabad High Court reiterated that the compassionate appointment cannot be granted on a higher post than the post which was held by the deceased employee, despite the applicant having higher educational qualifications.
Brief Facts:
The Petitioner's father died in harness while working as a Class-IV employee at Nagar Palika Parishad, Faridpur, Bareilly. The petitioner applied for compassionate appointment on the post of Class-III employee. The application was rejected on the grounds that no post of Class-III employee was vacant and that the petitioner has no right to claim an appointment to a particular post.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner submitted that in case the post is vacant, it is required on the part of respondents to create a supernumerary post for a Class-III employee and grant an appointment. He has placed reliance upon the judgment of Apex Court in the case of Sushma Gosain vs. Union of India as well as the case of Smt. Premlata vs. State of U.P. and others and Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 and submitted that the petitioner is entitled to an appointment on the post for which he has a qualification.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent vehemently opposed and submitted that in light of Government Order dated 17.6.2014, petitioner has no right to claim a particular post. He next submitted that the State Government has challenged the judgment of the Division Bench of this Court given in Smt. Premlata (Supra) before the Apex Court and Apex Court has reversed the judgment with a specific finding that mere qualification cannot be a ground for appointment to a higher post than the post held by the deceased employee. He also pointed out that it is not the case of the petitioner that the post of Class-III is vacant rather respondents have a specific case that the post of Class-III employee is not vacant, which is also not disputed by the petitioner.
Observations of the court:
The court observed that Rule 5 of Rules, 1974 was interpreted by the Division Bench of this Court in the matter of Smt. Premlata and Court have opined that suitable appointment means appointment commensurate to the qualification and further the case of Sushma Gosain does not deal with the interpretation of Rules 5 of Rules, 1974 as well as suitable employment. It only says that the claim for appointment on compassionate grounds there should have been delayed and in case of unavailability of the post, the supernumerary post should be created to accommodate the applicant.
It was stated that the Apex Court had twice interpreted the Rule 5 Rules 1974 as well as suitable employment as referred herein. Apex Court has clearly held that "suitable employment" in Rule 5 must be construed with the post held by the deceased employee and not by the higher qualification held by the dependent. The view of the Apex Court is that compassionate appointment shall not be given upon a higher post than the post held by the deceased employee. Therefore, as of date, the law of the land is that a legal heir cannot be given an appointment on compassionate grounds to a post higher than the post held by the deceased employee.
The court stated that in the present case, the father of the petitioner was working on the Class-IV post and after his death, he was offered employment in the post of Class-IV, which was refused him on the ground that he qualified for the post of Class-III. Therefore, in light of the interpretation of Rule 5 of Rules 1974 made by the Apex Court as well as this Court, the petitioner is not entitled to the post of Class-III on compassionate grounds.
The decision of the Court:
The court dismissed the petition.
Case Title: Arpit Shukla vs State of U.P and Ors.
Coram: Hon’ble Mr. Justice Neeraj Tiwari
Case No.: WRIT - A No. - 19344 of 2023
Advocate for the Petitioner: Mr. Kamal Kumar Kesherwani
Advocate for the Respondent: C.S.C., Aditya Kumar Singh, Manu Saxena
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