Kamlesh KUmar Srivastava vs State of U.P. and Others

Sanjay Misra, J.—Heard learned Counsel for the petitioner and learned Standing Counsel appearing on behalf of the respondent Nos. 1 to 3.

With the consent of learned Counsel for the parties, this writ petition is being decided at this stage itself.

Learned Counsel for the petitioner states that the petitioner was given, appointment on compassionate ground under the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 on supernumerary Class IV post on 20.7.1998 whereupon he joined on 20.8.1998. Subsequently, he was appointed as a junior clerk in the pay scale of Rs. 3050-4500 also on a supernumerary post by the order dated 15.3.2003 (Annexure No 2 to the writ petition). At the time when the petitioner was given appointment, the post of Gram Panchayat Adhikari was declared as a dying cadre. However, subsequently, the said cadre has been revived and according to learned Counsel for the petitioner (as stated in paragraph 9 to the writ petition) there are 47 posts of Gram Panchayat Adhikari lying vacant in the district of Hardoi. He states that upon a representation being made by the petitioner, the District Panchayat Raj Officer, Hardoi has passed the order dated 24.9.2007 (Annexure No. 1 to the writ petition) whereby he has rejected the claim of the petitioner to be adjusted on the vacant post of Gram Panchayat Adhikari in the regular cadre. According to him the petitioner was entitled to the benefit of the Government Order dated 22.6.1998 which provided that, even if a person is appointed against the supernumerary post then as and when regular vacancies occurs the employee would be adjusted against the regular vacancy. According to learned Counsel for the petitioner, the post of Gram Panchayat Adhikari has been revived by means of Government Order dated 20.7.2004. Consequently, he states that he was entitled to be given the benefit thereof.

Learned Standing Counsel on the other hand has contended that the Hon''ble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana and Others, has clearly laid down the law that once a person is given compassionate appointment under the Dying-in-Harness Rules then he cannot claim benefit of the said rules for the purpose of being adjusted on any other post. According to him, the said benefit is available only at the first instance of entry into service and hence, it cannot be said that the impugned order dated 24.9.2007 suffers from any illegality whatsoever.

Having considered the submissions of learned Counsel for the parties and gone through the record, it is quite obvious that while passing the impugned order, the District Panchayat Raj Officer, Hardoi has not considered the fact of the case to the effect that the appointment of the petitioner was made on a supernumerary post which is quite apparent from the appointment letter dated 75.3.2003 filed as Annexure No. 2 to the writ petition. Consequently, when the appointment on compassionate ground was made on supernumerary post and the State Government by the Government Order dated 22.6.1998 provided that as and when the regular vacancy occurs such an employee appointed on supernumerary post would the adjusted against the regular vacancy. The respondent No. 3 ought to have considered this aspect of the matter. It is not disputed by learned Standing Counsel that by the Government Order dated 20.7.2004, the Government has revived the cadre of Gram Panchayat Adhikari. It is also not disputed that the post of Gram Panchayat Adhikari is in pay scale of Rs. 3050-4590 and according to Annexure No. 2 to the writ petition, which is Appointment letter on a supernumerary post of junior clerk, he was appointed in the pay scale of Rs. 3050-4590/-. Hence, submission of learned Counsel for the petitioner that he was entitled to the benefit of the Government order dated 22.6.1998 appears to be correct and it has not been considered in the impugned order. The impugned order is based only on the ground that once the benefit of compassionate appointment has been given to the petitioner it cannot be extended again. Such was not the claim of the petitioner. The petitioner was admittedly appointed on a supernumerary post and was claiming to be adjusted in the regular vacancy, which had occurred. In so far as the impugned order is concerned, it has not considered the grievance of the petitioner in light of the Government Order dated 22.6.1.998.

For the aforesaid reasons, the impugned order dated 24.9.2007 is hereby quashed.

Learned Standing Counsel then contended that although the District Panchayat Raj Officer, Hardoi is the appointing authority for the post of Gram Panchayat Adhikari, however, in view of the impugned order passed by the District Panchayat Raj Officer, Hardoi, it would be appropriate that the Director, Panchayat Raj, U.P., Lucknow (respondent No. 2) should consider the grievance of the petitioner and in case he finds that the petitioner is entitled to be adjusted in the regular cadre of Gram. Panchayat Adhikari, the Director, may issue suitable directions to the District Panchayat Raj Officer, Hardoi. The said submission of learned. Standing Counsel appears to have substance.

In view of the aforesaid circumstance, it is provided that the petitioner should file a suitable application along with a certified copy of this order before respondent No. 2. Director, Panchayat Raj, U.P. Lucknow within 15 days from today whereupon the respondent No. 2 shall consider and decide the same in accordance with law preferably within three months thereafter. In case the Director comes to the conclusion that the petitioner is entitled for the benefit of Government Order dated 22.6.1998 he shall issue necessary direction for compliance to the District Panchayat Raj Officer, Hardoi within a specified time to be fixed by him.

With the aforesaid directions, this writ petition is allowed. No order is passed as to costs.