Uttarakhand High Court
WPSS/1486/2023 on 17 August, 2023
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WPSS No. 1486 of 2023
Hon'ble Pankaj Purohit, J.
Mr. Lalit Samant, learned counsel for the
petitioner.
2. Mr. P.C. Bisht, learned Additional C.S.C.
for the State.
3. Heard learned counsel for the parties.
4. By means of this writ petition, the
petitioner has challenged the orders dated
01.08.2023 (Annexure No.11 to the writ
petition) and 09.08.2023 (Annexure No.12 to
the writ petition), by which the appointment of
the petitioner on compassionate ground as
peon was cancelled.
5. It is the contention of the learned counsel
for the petitioner that the father of the
petitioner was initially appointed as Shiksha
Mitra with the respondents' department and
vide order dated 17.01.2015, he was
appointed/absorbed in the regular service of
the respondents' department as Assistant
Teacher in Government Primary School
Kankot, Block Syalde, District Almora. Though
in the order dated 17.01.2015, it has been
clearly stated that the father of the petitioner
was absorbed on the post of Assistant Teacher
in Government Primary School, Kankot at Pay
Band-2, Pay Scale 9300-34800, Grade Pay
4200, provisionally from the date of issuance
of this order i.e. 17.01.2015. Unfortunately,
the father of the petitioner was expired on
24.03.2016, while still in his service.
6. The petitioner applied under the dying in
harness rules and he was compassionately
appointed vide order dated 28.09.2016 as
Peon with the respondent's department and
posted at Government Inter College, Gumti,
District Almora.
7. By the impugned order, it appears that
the appointment of the petitioner was
cancelled by the respondent no.2 saying that
the order of appointment was passed in
mistake and accordingly as a consequential
order, Director, Primary Education,
Uttarakhand vide order dated 09.08.2023
directed District Education Officer (Elementary
Education), Almora to cancel the mistaken
appointment of the petitioner forthwith and to
inform the Directorate accordingly.
8. It is submitted by learned counsel for the
petitioner that in both the orders whereby the
appointment of the petitioner was cancelled by
the respondent nos.2 and 3, there are no
reasons mentioned as to why the appointment
of the petitioner was brought to end and as to
what was the mistake.
9. It is further submitted by the learned
counsel for the petitioner that it is a settled
principal of law that the appointment offered
to the dependents of the government
employee under dying in harness rules on
compassionate ground are always regular
appointment and the regular appointment
cannot be cancelled without offering the
opportunity of hearing to the petitioner. He
further submitted that the petitioner was
offered appointment on compassionate ground
as a Peon by the respondents and it is
nobody's case that there was any
mispresentation on the part of the petitioner
and therefore the respondents cannot take the
benefit of their own wrong to harm the
petitioner and to cancel his appointment.
10. In order to substantiate his argument,
learned counsel for the petitioner relied upon
the case of Md. Zamil Ahmed Vs. State of
Bihar and Others reported in (2016) 12 SCC
342 wherein, according to the petitioner on the
almost similar facts, the termination of the
service of the appellant in the aforesaid case
law, was set aside and he was reinstated in
service.
11. I have perused the judgment rendered
by the learned counsel for the petitioner. As
per the facts of the case of Md. Zamil Ahmed
(Supra), the brother of the appellant was
offered appointment under dying in harness
rule and after 15 years, the appointment was
terminated on the ground by the respondent
State that Md. Zamil Ahmed was not the
dependent of the deceased employee. And in
these facts, the aforesaid judgment has been
passed by the Hon'ble Apex Court reinstating
the services of the Md. Zamil Ahmed.
12. From perusal of the aforesaid judgment
passed by the Hon'ble Apex Court it is for sure
that the respondent State cannot take benefit
of its own fault that too after a considerable
period of 7 years, in case of the petitioner.
13. Per contra, learned State Counsel
submitted that from the order impugned it is
reflected that the Joint Secretary, Government
of Uttarakhand has directed the Director,
Elementary Education to cancel the
appointment of the petitioner and in his turn
the Director, Elementary Education, Dehradun
wrote a letter on 09.08.2023 to the District
Education Officer (Elementary Education),
District Almora to cancel the appointment. It is
still not clear as to whether the appointment of
the petitioner has been cancelled or not and
according to the learned State Counsel the
petition appears to be premature. It is further
submitted by the learned State Counsel that
since the father of the petitioner was
provisionally appointed as Assistant Teacher
with the respondents' department, therefore,
the appointment under the dying in harness
rules given to the petitioner appears to be
erroneously and therefore the same was
corrected by the respondents by rectifying the
mistake.
14. Having heard the rival contentions of the
parties, I found force in the arguments
advanced by the learned counsel for the
petitioner for the reason that the appointments
under compassionate grounds are always
regular in nature and the same cannot be
trifled within the manner as done by the
respondents. So far as the argument of the
learned State Counsel regarding the
prematurity of the writ petition is concerned, I
feel that the contention raised by the learned
State Counsel is farfetched for the reason that
once the decision has been taken at the
highest level to cancel the appointment of the
petitioner, it cannot be said to be premature to
file this writ petition.
15. Learned State Counsel is granted three
weeks' time to file counter affidavit. Two
weeks' time thereafter is granted for filing
rejoinder affidavit.
16. List on 31.10.2023.
17. As per the aforesaid discussion, till next
date of listing, the impugned orders dated
01.08.2023 (Annexure No.11 to the writ
petition) and 09.08.2023 (Annexure No.12 to
the writ petition), cancelling the appointment
of the petitioner on the post of Peon are
stayed.
(Pankaj Purohit, J.)
17.08.2023
PN
