Rajesh Mahajan vs State Of U.P. & 2 Others
2013 Latest Caselaw 7515 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 67672 of 2013
 

 
Petitioner :- Rajesh Mahajan
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Ajay Sengar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioner has sought a writ of certiorari for quashing advertisement no.1265/P-4/Stha/Gram Panchayat Adhikari-Bharti/2013-14 dated 04th September, 2013 whereby 16 vacancies of Gram Panchayat Adhikari in District Jhansi have been advertised. He has also sought a mandamus commanding respondent no.3 to consider him for appointment on the post of Gram Panchayat Adhikari.

2. The brief facts, not in dispute, are as under:

3. The petitioner's father was a Gram Panchayat Vikas Adhikari and died in harness on 12.6.2005 while posted in Development Block Month, District Jhansi. The petitioner applied for compassionate appointment under U.P. Recruitment of Dependents of Government Servants Dying in harness Rules, 1974 (hereinafter referred to as "1974 Rules"). He was appointed as a Junior Clerk in the pay scale of Rs.3050-4590 (now revised to Rs.5200-20200) against a supernumerary post since there was no vacancy in the office of District Panchayat Raj Office, Jhansi, vide order dated 24.4.2006. It clearly contemplates that supernumerary post shall continue till a vacancy on the post of Junior Clerk in the office, occur. Consequent to the appointment letter dated 24.4.2006, petitioner joined service and has been discharging duties since then. It is also pleaded that post of Gram Panchayat Adhikari were designated as "Multi Purpose Worker" and ceased to exist hence when petitioner was appointed, hence there was no vacancy of Gram Panchayat Adhikari and he was not appointed on the said post in 2006. However, it was revived vide Government Order dated 22.7.2004 and several persons were appointed/absorbed thereon. Some persons, who were appointed as Junior Clerk, applied for their absorption as Gram Panchayat Adhikari, which was allowed and granting parity, this Court in Writ Petition No.1094 of 2005 (SS) Braj Pal Singh and others Vs. State of U.P. & Others) also issued similar directions vide judgment dated 10.2.2005, which reads as under:

"In this backdrop the Learned Counsel for the petitioners submitted that the petitioners in like manner are also entitled for being considered for appointment on the post of Gram Panchayat Adhikari.

Learned Standing Counsel, in opposition, argued that in view of the fact that the petitioners having been appointed as clerk on compassionate grounds and having accepted the same, subsequently cannot turn around and claim appointment on the post of Gram Panchayat Adhikari as revival of the same at a later stage would not give them any indefeasible right for such appointment.

In view of the fact that subsequently vide Annexures no.10 to 12, upon revival of the posts in question, the candidates were considered and were appointed on compassionate grounds, therefore, in the circumstances, it is hereby directed that the opposite parties shall also consider, within a period of four weeks from the date a certified copy of this order is served on the opposite parties, the case of the petitioners for appointment/absorption on the posts of Gram Panchayat Adhikari against the existing posts.

With the aforesaid direction the writ petition is finally disposed of."

4. It is contended that present petitioner is also entitled for the same benefit. He also drew my attention to the letter dated 24.7.2009 sent by District Panchyat Raj Officer, Jhansi to Director Panchayati Raj in which petitioner was shown as surplus staff working on the post of Junior Clerk and contended that since he is surplus staff, he can be absorbed against vacant post of Gram Panchayat Adhikari and therefore, before making any direct recruitment, petitioner should be considered for the same.

5. This Court vide order dated 11.12.2013 required District Panchayat Raj Officer, Jhansi respondent no.3 to inform whether petitioner is a surplus staff or appointed against a supernumerary post, inasmuch as, a person becomes surplus staff when the post on which he is working is no more existing and he is kept in surplus staff pool but one, who is appointed on a supernumerary post, is not a surplus staff as such and the two terms/canditions are different.

6. Today, District Panchyat Raj Officer himself has appeared before this Court and also filed an affidavit stating that due to wrong format used by his office, an inadvertent mistake has committed, inasmuch as, petitioner is not a surplus staff but is working on a supernumerary post as Junior Clerk and his claim that he is a surplus staff is incorrect. He said that Director required information in regard to staff working on supernumerary post but while conveying this information, format of surplus staff pool was used, which is an error committed inadvertently and indeliberately.

7. In para 9 of affidavit, respondent no.3 has categorically stated that petitioner is not a surplus staff but working on a supernumerary post. Now, it is in these facts and circumstances, this Court has to consider and decide whether petitioner is entitled to the relief claimed for.

8. It is not in dispute that recruitment and appointment to the post of Gram Panchayat Adhikari is governed by a separate set of rules namely U.P. Gram Panchayat Adhikari Service Rules 1978 as amended by U.P. Gram Panchayat Adhikari Service(First Amendment) Rules 1989. Under the Rules, there is no provision for recruitment by transfer from another post, may be in the same pay scale. The petitioner has not shown any legal or otherwise right vested under provision whereupon respondents can be obliged to consider him for appointment on a post of Gram Panchayat Adhikari instead of making recruitment in accordance with statutory rules applicable for the said post.

9. So far as petitioner's right for compassionate appointment is concerned, it has already exhausted as soon as the petitioner was appointed on a post of Junior Clerk vide appointment letter dated 24.4.2006 and accepting the same, he joined thereat and working for last seven years and more. Once an appointment is made on compassionate basis, the incumbent ceased to have any right to claim further appointment on any other post equivalent or higher status. Moreover, it is not the case of the petitioner that he joined the post of Assistant Clerk under any compelling circumstances and under protest.

10. Moreover, Apex Court in the case of State of Rajasthan Vs. Umrao Singh, 1994(6) SCC 560 has clearly held that once an appointment has been made and the incumbent has joined on a lower post, right to claim compassionate appointment exhausted on that very date and he cannot be allowed to set up his claim for appointment on a higher post on compassionate basis and the decision given by the High Court of Rajasthan otherwise was reversed by the Apex Court. In para 8 of the judgement the Apex Court clearly held:

"...He was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion"."

11. Again this issue was considered by a Division Bench of this Court in Dinesh Chandra Sharma Vs. District Inspector of Schools, Meerut and others, 2000(4) AWC 3262. There the legal heir of the deceased employee was given appointment on compassionate basis as Clerk. Subsequently, he became qualified for the post of Assistant Teacher and claimed that he was entitled to be considered for appointment on the said post on compassionate ground. The Hon'ble Single Judge relying on Umrao Singh (supra) held that once appointment has been made on compassionate ground, the claimant is not entitled to get any other appointment on different post simply because he has now obtained qualification for other post subsequently.

12. In Kamlesh Kumar Pandey Vs. State of U.P. and another 2001 (3) UPLBEC 2188, Sri Pandey was appointed on compassionate basis as a class-IV employee. He accepted the appointment and joined the service without any objection. Claiming thereafter appointment on a class-III post he approached this Court. Rejecting the claim, it was held:

"Once having accepted an appointment, may be on Class-IV post under existing situation out of will and volition, the 'chapter' of Dying in Harness is closed. No one should be permitted to re-agitate this matter in future on the basis of change of circumstances in further leaving everything in turmoil and in a state of indecisiveness. It if is permitted, no litigation will ever come to an end." (Para 10)

13. Similar is the view taken by another Hon'ble Single Judge in Raghunandan Pandey Vs. District Inspector of Schools, Basti and others, 2004(3) AWC 2535 and in para 8 of the judgement the Court said:

"It is well-settled that appointment on compassionate ground is given only to tide away the sudden financial crisis which the family of the deceased employee faces because of the sudden death of the sole bread earner of the family. Thus, once a member of the family of the deceased employee is given appointment on such ground, which is also accepted by the claimant, the reason for giving such appointment, which is for support to the family of the deceased employee, does not exist thereafter. The appointment under the Dying-in-Harness Rules cannot be made an alternate source or mode of appointment."

14. In Shyamdhar Mishra Vs. State of U.P., 2006(2) AWC 1415 reiterating the aforesaid view following Umrao Singh (supra) this Court in para 9 of the judgement held:

"In my view, once the appointment is made on the compassionate ground, the said rule comes to an end and no further appointment could be made under the said Rules. The authority could not, in any manner, reconsider the case of the petitioner or of any other person where an appointment had already been given at some anterior point of time, on compassionate ground under the Dying-in-Harness Rules."

15. The same thing has been reiterated in Suresh Prasad Singh Vs. State of U.P. and others, 2006(4) AWC 3718 (para 5).

16. Another Division Bench of this Court following Umrao Singh (supra) in Shardendu Tiwari Vs. State of U.P. & others in Special Appeal 908 of 2006 decided on 22.8.2006 held as under :

"The submission of learned Standing Counsel that once compassionate appointment is accepted, the right is exhausted and there cannot be any second consideration for the same right is well founded. The judgment of Apex Court in State of Rajasthan (supra) fully support the said submission."

17. In Surya Kant Kadam Vs. State of Karnataka & Ors. AIR 2001 SC 2415, on which reliance has been placed by petitioner, this Court has not laid down any law and no such issue as raised herein, has been raised, argued and decided therein so as to constitute a binding precedent on this Court. I find that the Court has not decided the matter but I find that Apex Court has decided the matter in the facts and circumstances of that case but looking to the law laid down by Constitutional Bench of Apex Court and various others as already noted above, in my view, the above decision lends no help to him.

18. On the contrary in absence of any right vested in the petitioner to claim appointment directly on the post of Gram Panchayat Adhikari, I have no hesitation in holding that his claim for appointment on the post of Gram Panchayat Adhikari from the post of Junior Clerk, which constitute a separate and independent cadre is not legally permissible and therefore, writ of mandamus cannot be issued directing respondents to do something which is impermissible in law and illegal. No person has a legal or constitutional right to claim parity in the matter which is something per se illegal. Article 14 has no application in such case. In Union of India & another Vs. Kartick Chandra Mondal & another (2010) 2 SCC 422, the Court has gone to the extent that even if some other persons similarly placed have been absorbed, that cannot be a basis to grant a relief by the Court which is otherwise contrary to statute. In para 25 of judgment, the Court said:

"Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh and Ors. (2009) 5 SCC 65, the relevant portion of which is extracted hereinbelow:

"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order ..."

19. In State of Karnataka & others Vs. Gadilingappa & others (2010) 2 SCC 728, the Court reiterated that it is well settled principal of law that even if a mistake is committed in an earlier case, the same cannot be allowed to be perpetuated. It is well settled that if a wrong has been committed by the respondents in respect to some other persons, that will not provide a cause of action to claim parity on the ground of equal treatment since the equality in law under Article 14 is applicable for claiming parity in respect to legal and authorized acts. Two wrongs will not make one right. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has held that Article 14 has no application in such cases.

20. The writ petition therefore, is devoid of merits and is dismissed.

21. No costs.

Order Date :- 18.12.2013

KA