Shailesh Kumar Srivastava vs State of U.P. and Others

Anil Kumar, J.—Heard Sri Anurag Srivastava, learned Counsel for the petitioner and Sri V.S. Tripathi, learned Additional Chief Standing Counsel.

By means of the present writ petition, the petitioner has challenged the impugned order dated 08.02.2007 passed by District Inspector of School, Bahraich (Annexure-6).

Learned Counsel for the petitioner further submits that the petitioner''s father Sri Sushil Kumar Srivastava who was working as L.T. Grade Teacher in Gandhi Inter College, Baharaich (hereinafter referred to as the ''Institution'') died during his tenure of service on 28.03.1998 . After the death of Sri Sushil Kumar Srivastava who was the sole bread earner of the family, as such an application has been submitted by the petitioner for consideration of his case for appointment on compassionate ground, the said application of the petitioner was forwarded by the Institution in question on which deceased Sri S.K. Srivastava was working to the District Inspector of School, thereafter by order dated 01.08.1998, the petitioner was given appointment on the post which belongs to Class-IV category.

Sri Anurag Srivastava, learned Counsel for the petitioner further submits that due to compelling circumstances the petitioner joined his services on class- IV post in the month of August, 1988. Thereafter petitioner again submitted an application on 24.09.1998 for consideration of his case on compassionate ground after taking into consideration qualification possessed by him which is sufficient to appoint him on the post which belongs to Class-III category under the rules. The said grievance was not considered by the concerned opposite party as such the petitioner was compelled to file the writ petition No. 3879 (SS) of 1999 before this Court and the same was disposed of by means of the order dated 19.07.2000.

He further submits that the direction as given by this Court by order dated 19.07.2000 was not complied. So, the petitioner was compelled to file a Contempt case (registered as Criminal Misc. Case No. 2902 of 2002 Shailesh Kumar Srivastava v. Sushri Asgar Sayeeda and Ors.), dismissed on 23.04.2008. After dismisal of the Contempt petition, the impugned order was supplied to the petitioner, hence the present writ petition has been filed for redressal of the grievances of the petitioner that he may be given compassionate appointment on Class-III post in the institution in question considering his qualification. In support of his argument he rely on the judgment passed by this Court in the case of Hiraman v. State of U.P. and Ors. reported in 1994 (12) LCD 649.

I have heard counsel for the petitioner and perused the record.

In the present case it is not disputed by the learned Counsel for the petitioner that after death of his father the petitioner was given compassionate appointment on the post which belongs to Class-IV category and he joined on the said post in the month of August 1998 and thereafter he raised the grievances to the effect that he may be given appointment on Class-III post keeping in view his qualification for the said purpose he had approached this Court by filing a writ petition No. 3879 (SS) of 1999 which was disposed of by order dated 19.07.2000 and when the said order was not complied with, the petitioner filed a Contempt petition before this Court and on 23.04.2008 the same was dismissed with the direction that Counter affidavit reveals that the claim of the applicant for appointment in class III post was rejected by the authorities on the ground that the applicant had already been given an appointment on a class IV post.

In view of the aforesaid, this Court is of the opinion that the contempt proceedings cannot proceed any further. Contempt proceedings are dropped, notices are discharged and the contempt application is rejected.

In view of the abovesaid facts, the present writ petition has been field before this Court by the petitioner for quashing of the order dated 08.02.2007 by which the petitioner''s grievance/case were rejected by District Inspect of School, Bahraich on the ground that the petitioner has already been given appointment on compassionate ground in the year 1998 on the post which belongs to Class- IV category in the Institution in question. As such, he cannot be given appointment again.

The object and the genesis of compassionate appointment is on account of immediate hardship and to mitigate ''distress'' in the family of a deceased employee. It is not planned and cannot be delayed or postponed, as that will frustrate the very object of the compassionate appointment.

Further, the provisions pertains to compassionate appointment has been dealt by Hon''ble Supreme Court in the case of Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, however thereafter the approach pertaining to the provisions for compassionate appointment has undergone major change.

In the case of State of Haryana Vs. Naresh Kumar Bali, the Supreme Court while allowing the appeal of the State held as under:

Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of a teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a Clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed. The claim for appointment as Inspector was never made earlier.

In the case of State of Rajasthan Vs. Umrao Singh, the Supreme Court held as under:

Once the respondent accepted the appointment as a Clerk which appointment came to be made on compassionate ground, he cannot lay a further claim for appointment as Sub-Inspector. It cannot be a case of compassionate for all time.

In the case of the Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, wherein the Hon''ble Apex Court has observed as under:

The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread- earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provide, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision. Care has, therefore, to be taken that a provision for grant of compassionate appointment which is in the nature of a exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee.

In the case of Sanjay Kumar Vs. The State of Bihar and Others, it has been held by the Hon''ble Apex Court that there cannot be a reservation of vacancy for the dependent of the deceased Government servant, who died-in-harness.

Therefore, once petitioner having accepted an appointment , may be on Class-IV post under existing situation out of will and volition, the ''chapter'' of Dying in Harness is closed. No one should be permitted to re-agitate this matter in future on the basis of change of circumstances in future, leaving everything in turmoil and in a state of indecisiveness. It if is permitted, no litigation will ever come to an end. So relief claimed by the petitioner for appointment on compassionate ground again on the post of Assistant Teacher as he possess the qualification of the said post is misconceived and liable to be rejected.

So far as the judgment relied by the learned Counsel for the petitioner in the case of Hiraman (Supra) passed by this Court is concerned, the same cannot be treated as a ''binding precedent'' having force of law and have to be treated as ''per incuriam'' as Supreme Court judgments are binding on this Court. So the petitioner cannot derive any benefit from the case of Hiraman(supra) as it is no longer open to the petitioner to lay a further claim for appointment on the post of Class-III category as held by the Hon''ble Supreme Court that once an appointment has been made, the matter regarding compassionate appointment comes to an end and no further appointment under they Dying-in Harness Rules could be made.

For the foregoing reasons, I do not find any illegality or infirmity in the order dated 08.02.2007 (Annexure-6) passed by O.P. No. 2. Accordingly, the present writ petition lacks merit and is hereby dismissed.

No order as to costs.