Harendra Singh vs State Of U.P. And Others
2015 Latest Caselaw 737 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 
Case :- WRIT - A No. - 58341 of 2010
 
Petitioner :- Harendra Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Bhola Nath Yadav, Santosh Yadav, Tarun Agarwal, Vinod Kumar Yadav
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner's father late Khem Raj Yadav was working as a Stenographer in the Excise Department. He died in harness on 31st January, 2008. The petitioner made an application for compassionate appointment on the post of Sub-Inspector Excise. However, his request for the said post was denied on the ground that there is a ban on compassionate appointment on the said post and he was offered the post of Junior Clerk vide order dated 27th March, 2008. A copy of the said order is on the record as Annexure-5 to the writ petition.

It is stated that in the compelling circumstances the petitioner gave his consent for appointment on the post of Junior Clerk. However, he found that in the case of late Shailendra Kumar Singh, Sub-Inspector Excise, who died in harness, his wife Smt. Jyoti Singh was appointed on the post of Sub-Inspector Excise under the U.P. Recruitment of Dependant of Government Servants Dying in Harness Rules, 1974.

The petitioner initially preferred this writ petition for a direction upon the respondents to appoint him on the post of Sub-Inspector Excise. Later on, by the amendment in the writ petition, a relief has been sought to quash the order dated 11th February, 2011, which was passed pending consideration of this writ petition, whereby his representation has been rejected on the ground that once the petitioner has accepted the offer to be appointed on the post of Junior Clerk, he cannot claim higher post of Sub-Inspector Excise. It is also mentioned in the order that the petitioner has no right to claim the post as a matter of right.

A counter affidavit has been filed on behalf of the respondent authorities wherein it is stated that the Excise Commissioner, Uttar Pradesh vide his communication dated 21st November, 1997 recommended the State Government not to make compassionate appointment on the post of Sub-Inspector Excise because the said post is a sensitive post and further promotions to the posts of Excise Inspector, Assistant Excise Commissioner and Deputy Excise Commissioner are also made from the Sub-Inspectors Excise. The same request was reiterated vide a Demi- Official letter dated 28th August, 1999. It is further submitted that in view of the recommendation of the Excise Commissioner no compassionate appointment was made on the post of Sub-Inspector Excise till 15th September, 2010 when the Excise Commissioner took a decision to make compassionate appointment on the said post and accordingly, the sixth respondent was given the compassionate appointment on the post of Sub-Inspector Excise.

Learned Standing Counsel has drawn the attention of the Court to the Government Orders dated 05th August, 2011 and 21st December, 2011 issued in pursuance of the recommendations of the VIth Pay Commission that the post of the Sub-Inspector Excise is now out of the category of posts, on which compassionate appointment can be made. Paragraph-5 of the Government Order dated 05th August, 2011 reads as under:

"(5) mi vkcdkjh fujh{kd ds inksa ij 10 o"kZ dh lsok okys gkbZLdwy mRrh.kZ vkcdkjh flikfg;ksa ,oa rkM+h i;Zos{kdksa esa ls 'kr&izfr'kr inksUufr dh O;oLFkk j[kh tk;A"

I have heard learned counsel appearing for the parties and perused the material on record.

The petitioner has claimed the appointment on the post of Sub-Inspector Excise on compassionate ground as his father died in harness while working in the said department. The petitioner was offered the appointment on the post of Junior Clerk on the ground that on the post of Sub-Inspector Excise no appointment on compassionate ground can be made as a restriction has been imposed on compassionate appointment on the said post. The petitioner claims that in view of the said direction, under the compelling circumstances he joined the post of the Junior Clerk. It is a trite law that once a person accepts the appointment on compassionate ground, he cannot claim the appointment on higher post because the appointment on compassionate ground cannot be claimed as a matter of right.

In the case in hand, the grievance of the petitioner is that the respondent authorities have violated the fundamental right of the petitioner guaranteed under Article 14 of the Constitution as a discriminatory treatment has been meted out to him by denying the appointment on the post of Sub-Inspector Excise on the ground of a ban imposed by the State Government, but a similarly placed person has been offered appointment on the same post in spite of the said ban. The fact of discrimination has been elaborately pleaded by the petitioner in the writ petition. In paragraph-6 of the supplementary affidavit sworn by the Deputy Excise Commissioner in the office of the Excise Commissioner, U.P. at Allahabad the respondent authorities have admitted the fact that the sixth respondent has been appointed on the post of Sub-Inspector Excise. The said appointment has been justified on the ground that the ban, which was imposed on the request of the Excise Commissioner, was operative only till 15th September, 2010 when the Excise Commissioner took a decision to make compassionate appointment on the said post and accordingly, the sixth respondent was appointed.

From the material on the record I am satisfied that the State Government has not issued any order imposing the ban on compassionate appointment on the post of Sub-Inspector Excise. In fact, it was a request of the Excise Commissioner to the State Government for imposing such ban and the Excise Commissioner himself, as stated in paragraph-6 of the supplementary affidavit, took a decision to make the compassionate appointment on the said post.

Reliance has been placed by the learned counsel for the petitioner on a judgment of the Supreme Court in the case of Surya Kant Kadam Vs. State of Karnataka and others, (2002) 9 SCC 445, wherein the Supreme Court directed the respondents to consider the case of the persons for appointment on the post of Sub-Inspector (Excise) even though they had been offered appointment on compassionate appointment on the lower post of Clerk. The Supreme Court observed as under:

"The learned counsel for the appellant contended that even though Respondents 3 and 4's appointment could not be assailed on the ground of belated approach by the appellant but the prayer with regard to consideration of the appellant for the post of Sub-Inspector of Excise could not have been rejected by the Tribunal. The learned counsel appearing for the State Government, on the other hand, contended that against the earlier order when the Tribunal denied the relief of considering the case of the appellant for the post of Sub-Inspector of Excise, the appellant having not moved this Court, the same has become final and therefore should not be interfered with by this Court. There is some force in the aforesaid contention of the learned counsel for the State. But having considered the facts and circumstances of the present case and admittedly Respondents 3 and 4, who were similarly situated like the appellant and who were given compassionate appointment later than the appellant, having been appointed as Sub-Inspector of Excise, the appellant has a justifiable grievance. It is true that the appointment on compassionate ground in the State of Karnataka is not governed by any statutory rules but by a set of administrative instructions and as such is not enforceable in a court of law. But the grounds on which the appellant makes out the case for consideration of his case, is the violation of Article 14 and discriminatory treatment meted out to the appellant. It is undisputed that the date on which the appellant was given a compassionate appointment as Second Division Assistant/ Clerk he had the necessary qualification for being appointed as Sub-Inspector of Excise. It is also undisputed that Respondents 3 and 4 were given appointment initially as Second Division Assistant/Clerk but later than the appellant. When the State, therefore, thought it fit to change the post of Respondents 3 and 4 and appointed them to the post of Sub-Inspector of Excise, unless there is any justifiable reason existing, there is no reason as to why the appellant should be treated with hostile discrimination. In the aforesaid circumstances, we set aside the impugned order of the Tribunal rejecting the prayer of the appellant for being considered for the post of Sub-Inspector of Excise and we direct that the State Government may consider the case of appointment of the appellant as Sub-Inspector of Excise. Be it stated, in the event he is appointed it would be prospective and he will not be entitled to any retrospective benefit. The appeals are allowed accordingly."

From the aforesaid facts it is manifest that the petitioner has been treated differently and the action of the respondent authorities violates Article 14 of the Constitution. In the result, the impugned order dated 11th February, 2011, annexed as Annexure-CA-3 to the counter affidavit, is set aside and the matter is remitted to the second respondent to consider the cause of the petitioner and pass the appropriate order in accordance with law expeditiously.

The writ petition is, accordingly, allowed.

No order as to costs.

Order Date :- 28.5.2015

SKT/-

Hon'ble Pradeep Kumar Singh Baghel, J.

The writ petition is allowed.

For order, see my order of the date passed on the separate sheets (five pages).

Dt.-28.05.2015.

SKT/-