Allahabad High Court
State Of U.P. And 3 Othrs. vs Smt. Sarika Singh on 13 September, 2017
Bench: Arun Tandon, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 10
Case :- SPECIAL APPEAL DEFECTIVE No. - 455 of 2017
Appellant :- State Of U.P. And 3 Othrs.
Respondent :- Smt. Sarika Singh
Counsel for Appellant :- Ghanshyam Dwivedi
Counsel for Respondent :- Kapil Kumar Pandey
Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
Ref: Civil Misc. Delay Condonation Application No. 293044 of 2017
Cause shown for the delay in filing of the Special Appeal is to the satisfaction of the Court.
Delay is condoned.
This application is allowed.
Order on Memo of Appeal
Sri Ashok Khare, Senior Advocate is present on behalf of the respondent. He prays for and is granted four weeks time to file counter affidavit, rejoinder affidavit if any be filed within two weeks thereafter.
Heard learned counsel for the parties.
This intra Court appeal has been filed against the judgment and order of the learned Single Judge dated 7.10.2016 passed in the writ petition No. 26607 of 2016.
The writ petitioner had been offered compassionate appointment on the post of Junior Clerk in the year 2001. He set up a claim for being appointed on the post of Sub- Inspector (Excise). which was not considered. He, therefore, approached the writ Court.
Objection was raised on behalf of the respondents to the writ petitioner (appellant before us) to the effect that the post of Sub Inspector (Excise) is required to be filled by promotion only. Since no direct appointment is permissible compassionate appointment cannot be offered to the petitioner. The objection so raised has not been accepted by the writ Court and a mandamus has been issued to offer appointment as Sub Inspector to the writ petition under the order in appeal. The State of U.P. not being satisfied has filed this Special Appeal.
It is submitted by the State Government that compassionate appointment was offered to the petitioner on the part of clerk in the year 2001 which she accepted and has been working for last more than 15 years as on the date of the order of the writ Court.
By means of amendment in the statutory rules applicable for appointment on the cadre post of Sub Inspector (Excise) known as U.P. Subordinate Excise Service (1st Amendment) Rules 2015, the only mode of appointment provided is by promotion only. Therefore, no compassionate appointment can be offered. Reliance is placed upon the judgment of the Apex Court in the case of State Bank of India Vs. Raj Kumar (2010) 11 SCC 661 (paragraph Nos. 8, 9, 10, 11, 12 and 13) it has been laid down that the scheme as is applicable on the date when the application for compassionate appointment is to be consider has to be applied and mere pendency of the application for the purpose would not be the guiding factor for deciding applicability to the scheme.
It is then contended that direction to offer compassionate appointment after 15 years of the initial appointment as an Assistant Clerk virtually negates the very purpose of compassionate appointment.
Sri Ashok Khare, learned counsel for the respondent, on the contrary points out that the Apex Court in the case of Canara Bank & Anr Vs. M. Mahesh Kumar 2015 Law Suit (SC) 530, after noticing the judgment in the case of State Bank of India (supra), has permitted the consideration of the claim of respondent before the Apex Court for compassionate appointment, even when the order rejecting such compassionate appointment was made at a time when the provision for such compassionate appointment under the relevant scheme had been withdrawn and ex-gratia amount alone was required to be paid.
He therefore, submits that the judgment of learned Single Judge is in conformity with the law laid down by the Apex Court in the case of Canara Bank & Anr (supra). He also referred to the Division Bench judgement of this Court in the case of the State of U.P. Thru Secy. & 2 Others Vs. Vikrant Tomar & 5 Others in special appeal (defective) No. 301 of 2017, decided on 17.5.2017.
So far as the judgment in the case of Canara Bank & Anr. (supra) is concerned, prima facie we find that the same is clearly distinguishable, in view of the recital in paragraph No. 14 of the said judgment, wherein it has specifically been taken note of that the scheme for compassionate appointment has been restored in the year 2014. The Apex Court while passing the order on 15th May, 2015 was aware of such restoration of the scheme of compassionate appointment. It is in this back ground that in the Apex Court had directed for compassionate appointment being offered in that case.
So far as the judgment of the Division Bench of this Court dated 17.5.2017 is concerned, we find that the writ Court has recorded a finding that the respondents can not take a stand that there has been change in the Rules 2015.
In our opinion, there is no estoppel against law. The law as declared by the Apex Curt in the case of State Bank of India (supra) was binding upon the Division Bench.
We may also record that another Division Bench of this Court of which one of us (Arun Tandon, J) is a member has already held that in view of the judgment of the Apex Court in the case of State Bank of India (supra), once there is a change in the scheme and the provision for compassionate appointment has been done away with there cannot be any mandamus to direct compassionate appointment by the writ Court.
Even otherwise petitioner has been working as Clerk for more than 16 years as on date.
In the totality of the circumstances on record, we find that a prima facie case for grant of interim order is made out. Till the next date of listing operation of the judgment of the learned Single Judge dated 7.10.2016 shall remain stayed.
We, however, clarify that the petitioner shall continue to work as an Assistant Clerk and shall be paid salary accordingly.
Order Date :- 13.9.2017
Akbar
