Allahabad High Court
Ankit vs State Of U.P. Thru ... on 29 April, 2016
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?AFR
Court No. - 10
Case :- SERVICE SINGLE No. - 8994 of 2016
Petitioner :- Ankit
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Home Govt.Of Up & Ors.
Counsel for Petitioner :- Ankit Pande
Counsel for Respondent :- C.S.C.
Hon'ble Rajan Roy,J.
Heard learned counsel for the parties.
The claim of the petitioner for compassionate appointment has been declined on the ground that the post of A.S.I.(M) on which the petitioner seeks appointment is not vacant.
The contention of the petitioner is that non-availability of a post cannot be a ground for refusing compassionate appointment. In this regard learned counsel for petitioner places reliance on a decision rendered by this Court in Writ Petition No. 2228 of 2014 (Prakash Agarwal vs Registrar General Allahabad High Court Allahabad & others). He also places reliance upon a Government order dated 17.06.2014 issued by the Personnel Department of the State Government addressed to all the Principal Secretaries/Secretaries of the Government in compliance of the said judgment.
The contention of the petitioner that non-availability of post of A.S.I.(M) cannot be a ground for refusal of compassionate appointment on the said post is clearly in the teeth of the pronouncement of the Supreme Court rendered in the case of A.P.S.R.T.C. and another vs. Dannina Rajeshwari reported in 1999 SCC (L&S) 1182 (paragraph 3), Hindustan Aeronautics Ltd. vs. A Radhika Thirumalai(Smt) reported in (1996) 6 SCC 309 (paragraphs 9 & 10) and Himanchal Road Transport Corproation vs. Dinesh Kumar reported in (1996) 4 SCC 560 (paragraph 10).
Paragraph 10 of Himachal Road Transport Corporation (supra) is being reproduced as under:-
"10. We are of the view that the Himachal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders dated 27.03.1995 and 06.03.1995 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 unauthorized. Normally, even if 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 authorities concerned 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 unauthorized 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."
In the said judgment the earlier judgment in the case of Sushma Gosain vs. Union of India reported in (1989) 4 SCC 468 and Umesh Kumar Nagpal vs. State of Haryana reported in (1994) 4 SCC 136 have been considered. In the case of Hindustan Aeronautics Ltd the judgment in the case of A.P.S.R.T.C. (supra) has been followed.
In the case of Dannina Rajeshwari (supra) the Supreme Court observed that "this court has now made it clear that it would not be proper to direct the Government or government corporations and other authorities to create supernumerary posts to appoint persons on compassionate grounds. Such persons are to be given appointments provided vacant posts are available."
It is also worthwhile to mention that on a perusal of the provisions of U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974 shows that there is no provision in the said Rules for creation of supernumerary post for making compassionate appointment nor for making such appointment even if the post is not vacant. In fact reading of rule 5 and the use of words "be given suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission", leaves no room of doubt that such compassionate appointment is to be considered against a vacant post and not in its absence.
Reference may also be made to the Full Bench decision of this Court wherein law relating to compassionate appointment has been explained. Though this issue did not fall for consideration specifically in the said case but in the context of the issue falling for its consideration it has been observed in paragraph 6 that "the Rules make it abundantly clear that the purpose and object underlying the provision for compassionate appointment is not to reserve a post for a member of the family of a deceased government servant who has died while in service."
It is now very well settled that consideration of such employment is not a vested right which can be exercised at any time. The appointment on compassionate ground is not a source of recruitment but merely an exception carved out in the interest of justice to meet certain contingencies as has been referred by the Supreme Court in the case of V. Shivamurthy vs State of Andhra Pradesh and others reported in (2008)13 SCC 730 (FB). Such appointments are to be made strictly in accordance with the scheme/rules governing such appointments and against existing vacancy as held in the aforesaid judgment.
In view of the above discussion the claim of the petitioner for compassionate appointment even in absence of a vacant post of A.S.I.(M) is untenable and the reliance placed upon the pronouncement of the Court in Prakash Agarwal's case as also the Government order dated 17.06.2014 issued in pursuance thereof cannot be sustained.
However, as the petitioner has also made a prayer for considering his compassionate appointment against any other suitable post commensurate with his qualification, the writ petition is disposed of with a direction to the competent authority to consider the case of the petitioner for compassionate appointment on any other suitable post (other than A.S.I.(M) commensurate to his qualification. Let this exercise be done within a period of two months from the date a certified copy of this order is submitted.
With the aforesaid observations, the writ petition is disposed of. There shall be no orders as to costs.
Let a certified copy of this judgment and order be sent to the Principal Secretary (Appointment) and Principal Secretary (Personnel), Government of U.P. Lucknow.
Order Date :- 29.4.2016
Vijay (Rajan Roy, J)
