Allahabad High Court
The State Of U.P.Through Secy. vs Pawan Kumar Sharma on 24 May, 2017
Bench: Sudhir Agarwal, Virendra Kumar-Ii
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 3
Case :- SERVICE BENCH No. - 1187 of 2000
Petitioner :- The State Of U.P. Through Secretary and others
Respondent :- Pawan Kumar Sharma and another
Counsel for Petitioner :- Harshwardhan
Counsel for Respondent :- C.S.C., R.C. Pandey
Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
1. Heard learned Standing Counsel for petitioners. None appeared on behalf of respondents though the case has been called in revised and name of Sri R.C. Pandey is shown as counsel for respondent. Hence, we proceed to decide this case after hearing learned Standing Counsel for petitioners.
2. This writ petition under Article 226 of Constitution of India is directed against judgment and order dated 21.01.2000 passed by State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal") in Claim Petition No. 2575 of 1997.
3. Father of Claimant-respondent, Pawan Kumar Sharma was an employee in Police Department and died in harness on 09.02.1991. Claimant-respondent was offered compassionate appointment on a Group D post by appointment letter dated 27.09.1994 pursuant whereto claimant-respondent joined. Subsequently, he claimed that according to his qualifications, he is entitled for appointment to a Group 'C' Post and when failed to receive any favour/response from petitioner, respondents filed Claim Petition No. 2575 of 1997 which has been allowed by Tribunal vide impugned judgment directing petitioners to appoint claimant-respondent on a Group C post.
4. The view taken by Tribunal is in the teeth of judgment of Supreme Court in State of Rajasthan Vs. Umrao Singh, 1994(6) SCC 560 wherein Court 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 High Court of Rajasthan otherwise was reversed by Apex Court. In para 8 of the judgment, Court 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"."
5. 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. Relying on Umrao Singh (supra), Court 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.
6. 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 appointment and joined 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)
7. Similar is the view taken by another Single Judge in Raghunandan Pandey Vs. District Inspector of Schools, Basti and others, 2004(3) AWC 2535 and in para 8 of the judgment 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."
8. 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 judgment 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." (emphasis added)
9. The same thing has been reiterated in Suresh Prasad Singh Vs. State of U.P. and others, 2006(4) AWC 3718 (para 5).
10. 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."
11. In Rajesh Mahajan Vs. State of U.P. and others 2014 (2) ADJ 55, this Court said "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".
12. Here also, learned Single Judge relied on judgment in State of Rajasthan Vs. Umrao Singh (supra).
13. In view of the above discussion, we are of the view that Tribunal has clearly erred in law in holding otherwise. Judgment impugned in this writ petition, therefore, cannot be sustained.
14. Writ Petition is accordingly allowed. Judgment and order dated 21.01.2000 is hereby set aside. Claim Petition No. 2575 of 1997 is hereby dismissed.
Order Date :- 24.5.2017
Shubham
