Uttarakhand High Court
Sunil Purohit vs State Of Uttarakhand And Another on 21 February, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MS. RITU BAHRI
AND
THE HON'BLE JUSTICE SRI RAKESH THAPLIYAL
21st February, 2024
Special Appeal No. 06 of 2024
With
Delay Condonation Application (IA No.1 of 2024)
Sunil Purohit ........Appellant
Versus
State of Uttarakhand and another ........Respondents
Counsel for the appellant : Mr. Rajendra Dobhal, learned
senior counsel assisted by Mr.
Shubhang Dobhal, learned counsel.
Counsel for the State of : Mr. Gajendra Tripathi, learned
Uttarakhand Brief Holder.
Counsel for respondent No.2 : Mr. Sandeep Kothari, learned
counsel.
Judgment: (per Rakesh Thapliyal, J.)
The present Special Appeal is preferred against the
judgment and order dated 29.09.2023, passed by the learned Single
Judge in Writ Petition (S/S) No. 1489 of 2023, whereby, the Writ
Petition was dismissed.
2. There is a delay of 66 days in preferring the instant
Special Appeal. Delay is not opposed by the learned counsel for
the respondents, and therefore, the Delay Condonation Application
is allowed and delay in filing special appeal is condoned.
3. Brief facts of the case are that the father of the
petitioner/appellant was a regular employee of GMVNL in a class-
IV post, who died on 23.05.2019. Thereafter, the
petitioner/appellant submitted a representation on 18.09.2019,
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claiming compassionate appointment being a son of the deceased
employee under the dying-in-harness rules. Along with the
application, the petitioner/appellant submitted his certificate of
educational qualification. Subsequently, the claim of the
petitioner/appellant was considered and he was offered the
compassionate appointment by an order dated 19.09.2020 on the
post of Ardali (class-VI post).
4. This compassionate appointment was on probation for
a period of one year, which he voluntarily accepted by reporting
joining on 17.10.2020. After completion of one year probation
period, the petitioner/appellant was confirmed on 30.10.2021.
5. The petitioner /appellant earlier preferred a Writ
Petition, bearing Writ Petition (S/S) No. 593 of 2022, which was
decided by this Court by an order dated 07.04.2022, whereby, the
respondents were directed to decide the representation of the
petitioner and pursuant to the direction of this Court, the
representation of the petitioner/appellant was rejected by the
Managing Director, Garhwal Mandal Vikas Nigam Limited
(hereinafter to be referred as "GMVNL") by an order dated 11th
July, 2022, and being aggrieved with the said order, the
petitioner/appellant again approached to this Court by means of
Writ Petition (S/S) No. 1489 of 2023, which was dismissed on
29.09.2023 and being aggrieved with the same, instant appeal has
been filed.
6. Subsequently, a writ petition was filed by the petitioner
with the following reliefs :-
"I. Issue a writ, order or direction in the nature of
certiorari quashing the impugned order dated
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11/07/2022 (Annexure No.2 to the petition) passed by
respondent no.2.
II. Issue a writ, order or direction in the nature of
mandamus commanding the respondent no.2 to
consider the claim of the petitioner on class III post
and give him joining on class III post as per his
educational qualification.
III. Issue a writ, order or direction which this Hon'ble
Court may deem fit and proper under the
circumstances of the case may kindly be passed.
IV. Award the cost of the petition."
7. The main ground of challenging the order dated
11.07.2022 before the learned Single Judge was that though the
petitioner/appellant was appointed on class-IV post but he was
assigned different work and when he was appointed, he was in
Tourism Store, from where on 25.08.2021, he was transferred to
e-Governance Cell and assigned the work of data digitization.
Subsequently, by an another office order dated 02.09.2021,
petitioner/appellant was assigned the work of reservation section in
addition to his work of Tourism Store, which was assigned to him.
Apart from this assignment of different work, it is also contended
that the petitioner/appellant is a graduate and having all eligibilities
for appointment to class-III post. Consequently, he submitted a
representation again on 11.01.2021 before the respondents stating
therein that the petitioner/appellant is a graduate, having computer
diploma, as such requested for his claim for appointment on
class-III post.
8. Admittedly, the representation was made after
acceptance of appointment on class-IV post, which was offered to
the petitioner/appellant on 19.09.2020, which he voluntarily
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accepted by giving his joining on 17.10.2020. This is the main
bone of contention of the petitioner/appellant before the learned
Single Judge for seeking appointment on class-III post after
accepting the offer of appointment on class-IV post under the
dying-in-harness rules.
9. The other contention which was raised before the
learned Single Judge was that the petitioner/appellant filed an
application under the Right to Information Act and in reply
thereof, certain informations were supplied and it has been
informed that in the year 2000 one Rama Shankar, who was
working as a labourer (Concrete) in GMVNL passed away while in
service and his dependant Fauj Dar was appointed on
compassionate ground on class-III post after considering his
education qualification. After getting this information, the
petitioner/appellant sent several reminders, wherein, he claimed for
considering his candidature for appointment as fresh on
compassionate ground in class-III post.
10. It was further contended in Writ Petition that though
the petitioner/appellant was called by respondent No.2 giving all
information but when no positive action was taken by the
respondents, then he preferred Writ Petition (S/S) No. 593 of 2022,
which was disposed of by this Court on 07.04.2022 by directing
the respondents to decide the representation, which was rejected by
the order which was under challenge before the learned Single
Judge.
11. In the Writ Petition, one another instance of one Jagat
Singh, was also given, who was working as Chowkidar in
GMVNL and he died while in service and his dependant Sanjay
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Singh was offered appointment on compassionate ground in class-
III post on 07.05.2022.
12. The respondents filed their counter affidavit, wherein,
a specific objection was raised, particularly, in reference to para 18
of the writ petition, wherein instance of another deceased
employee was given, whose dependant was given appointment in
class-III post and in response thereto in the counter affidavit, it was
submitted by the respondents that these are not those cases which
after accepting the first offer of appointment on compassionate
ground, the employee concern seeks up-gradation of the
appointment. In the counter affidavit, it was further contended by
the respondents that the respondents department received an
opinion from the Law Department of the State and the Law
Department opined that once an appointment has been given on
class-IV post, the same cannot be converted /upgraded to class-III
post.
13. The learned Single Judge after considering the
averments as made in the Writ Petition and the stand as taken by
the respondents dismissed the writ petition by the impugned
judgment which now has been assailed by the present appellant by
the instant Special Appeal.
14. A specific ground has been taken in the appeal that the
respondents/department has adopted a selective approach in
appointing some candidates to class-III post and other to class-IV
posts on compassionate ground.
15. We have gone through the impugned judgement,
wherein the learned Single Judge dismissed the writ petition on the
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ground that once the compassionate appointment is accepted, the
same cannot be permitted to be upgraded.
16. No doubt, it is a settled principle of law that giving
appointment to the dependant of the deceased employees, who died
in harness is only a beneficial scheme so that the family of the
deceased employee may not suffer from any financial crisis due to
untimely death of the deceased employee. Since it is a beneficial
scheme and as such no one can claim as a matter of right to get
appointment on compassionate ground. Here in the present case,
the compassionate appointment offered to the petitioner, who
voluntarily accepted the same without any protest and after
accepting, he also completed the probation period and after
completion of probation period, he was given the status of the
confirmed employee.
17. This aspect clearly reveals that with open eyes the
petitioner/appellant accepts the offer of appointment in class-IV
post without any protest and once he voluntarily accepts the said
order, then he subsequent thereto cannot claim the compassionate
appointment on a higher post. Once an offer is given under the
dying-in-harness rules and the same is accepted, then no one can
further claim either for upgradation of post or to claim to consider
his claim for dying-in-harness rules afresh in a higher post.
18. Therefore, we do not find any substance and merit in
the instant Special Appeal. The learned Single Judge rightly
dismissed the Writ Petition.
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19. Accordingly, the instant Special Appeal being devoid
of merit is dismissed.
___________________________
Ritu Bahri, C.J.
___________________________
Rakesh Thapliyal, J.
Dt: 21st February, 2024
Shiv
