Court No. - 36
Case :- WRIT - A No. - 10832 of 2018 Petitioner :- Pankaj Kumar Singh Respondent :- State Of U.P. And Another Counsel for Petitioner :- Virendra Singh,Kapil Kumar Pandey Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
The petitioner seeks a writ of mandamus commanding the respondent to decide his representation moved for consideration of his claim for appointment on the post of Sub Inspector (Excise) on compassionate ground. It is contended by the learned counsel for the petitioner that similarly situated candidates have been granted appointment on the post of the Sub Inspector (Excise) in the respondent department and the petitioner has been discriminated by non consideration of his claim to the said post though he possessed all eligibility criteria. It is further contended that special appeal filed by the department challenging the direction given by the Court, to consider the claim on compassionate ground for the post of Sub Inspector (Excise) has been dismissed on 22.04.2016 and similarly situated candidate namely Harendra Singh has been given appointment on the said post.
The petitioner's father who was working as Head Constable (Excise) in the department had died on 20.10.2016. Soon after the death of his father, the petitioner moved an application seeking compassionate appointment on 17.01.2017. His claim has been processed and he has been granted appointment on the post of clerk in the Excise Department. Having joined the said post, the petitioner submitted his claim for consideration to the post of Sub Inspector (Excise) in view of the fact that other similarly situated candidates were given appointment to the said post.
The submission of learned counsel for the petitioner is that since there has been no consideration to the claim of the petitioner for a long period of time, he has to approach this Court by means of the present petition.
To deal with the submission of learned counsel for the petitioner and having perused the record, it is more than apparent from a careful perusal of the order dated 23.04.2016 passed by the Excise Commissioner, U.P. that the claim of some candidates who had applied for compassionate appointment for the post of Sub Inspector (Excise) was considered in the light of direction of this Court in writ petitions filed by them.
One Harendra Singh filed a writ petition No.58341 of 2010 claiming appointment to the post of Sub Inspector (Excise) on compassionate appointment. After exchange of affidavits, his claim was allowed by means of the judgement and order dated 28.05.2015. A special appeal (D) No.229 of 2016 was filed which was dismissed in limine on 22.04.2016. The observation of Special appellate Court has been extracted in the order dated 28.04.2016 of appointment of Sri Harendra Singh, which is quoted as under:-
"Undisputedly the claim of the petitioner for compassionate appointment arose in 2008 much before the post of Excise Inspector was made a 100% promotional post in 2011. Thus, the right of the petitioner-respondent crystallized prior to the promulgation of the Government Order dated 5.8.2011. The facts of the case of the respondent-petitioner are exactly identical to the facts of the case of Surya Kant Kadam (supra) before the Hon'ble Apex Court.
Following the law laid down by the Hon'ble Apex Court in the case of Surya Kant Kadam (supra), learned Single Judge has rightly held that petitioner-respondent was meted out discriminatory treatment by the appellant and his case for consideration of appointment on the post of Sub Inspector (Excise) was liable to be given afresh consideration in the light of the fact that an identically situated respondent no.3 Smt. Jyoti Singh was given compassionate appointment on the post of Sub Inspector (Excise).
In view of the aforesaid facts and discussions, we do not find any fault in the judgment of the learned Single Judge requiring any interference in the matter. The appeal is devoid of merits and accordingly stands dismissed in limine."
It is, thus, noteworthy that Sri Harendra Singh was granted appointment on the post of Sub Inspector (Excise) in view of the application moved by him in the year 2008 on account of the fact that his father died in harness on 31.01.2008. The Writ Court and the Special Appellate Court have observed that as the claim of such incumbents was pending consideration, since the year 2008 and the post of Sub Inspector (Excise) became 100% promotional post in the year 2011, in view of the judgement of Apex Court in Surya Kant Kadam Vs. State of Karnataka & others reported in 2002 (9) SCC 445, his rights having been crystallized prior to the promulgation of the Government order dated 05.08.2011, he was entitled for compassionate appointment to the post of Sub Inspector (Excise).
Thus it is clear that in the fact and circumstances of the said case, on the ground noted above, this Court has granted relief to Sri Harendra Singh.
In so far as the petitioner herein is concerned, he cannot be said to be similarly placed in as much as, his claim has arisen on account of death of his father i.e. after 20.10.2016; by the said date the post of Sub Inspector (Excise) has become 100% promotional post in view of the rules pertaining to appointment on the said post.
There cannot be a dispute to the fact that compassionate appointment can be granted only against the post which is a direct recruitment post and cannot be given against the promotional post.
This Court, therefore, does not find any merit in the claim of the petitioner. No further consideration is required by the competent authority.
The writ petition is found devoid of merits and hence dismissed. Order Date :- 30.4.2018/Himanshu