Dismissed

Nilendra Tiwari v. State of U.P. and Others

Allahabad HC5 Dec 2017SPLA/644/2011

Case brief

AI extract

What is this about?

This special appeal challenged the dismissal of a writ petition seeking compassionate appointment as a Sub-Inspector. The High Court Bench, upholding the Single Judge's decision, held that once compassionate appointment is accepted and the claimant joins, the right is exhausted and cannot be exercised for a higher post to prevent endless litigation.

What did the court decide?

Applicant's claim for compassionate appointment on a higher post was rejected as the right was exhausted upon acceptance and joining of the lower post.

Nilendra Tiwari Vs State of U.P. and Others — Pension and Retirement Benefits | Allahabad HC (2017)

¶1

¶2

Court No. - 34

¶3

Case :- SPECIAL APPEAL No. - 644 of 2011 Appellant :- Nilendra Tiwari Respondent :- State Of U.P. & Others Counsel for Appellant :- Siddharth Khare Counsel for Respondent :- C.S.C.

¶4

Hon'ble Sudhir Agarwal,J. Hon'ble Ajit Kumar,J.

¶5

This intra-Court appeal under Chapter VIII Rule 5 of the High Court Rules has arisen from the judgment passed by learned Single Judge dated 19.01.2010 dismissing the appellant's writ petition whereby appellant has sought compassionate appointment on the post of Sub-Inspector.

¶6

Petitioner-appellant is claiming appointment as Sub-Inspector by way of compassionate appointment though post of constable was offered to appellant, which was accepted by appellant and he joined on the same post. Once appointment of compassionate basis has been made on the post, right to claim on compassionate appointment has come to an end and this is what has been held in the case of State of Rajasthan Vs. Umrao Singh, 1994(6) SCC 560, wherein Apex Court has clearly held that once an appointment has been made and the incumbent has joined on a lower post, right to claim compassionate appointment exhausted on that very date and he cannot be allowed to set up his claim for appointment on a higher post on compassionate basis. The decision given by the High Court of Rajasthan otherwise was reversed by the Apex Court. In para 8 of the judgement, Apex Court clearly held:

¶7

"...He was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion"."

¶8

Again this issue was considered by a Division Bench of this Court in Dinesh Chandra Sharma Vs. District Inspector of Schools, Meerut

¶9

and others, 2000(4) AWC 3262 . There the legal heir of the deceased employee was given appointment on compassionate basis as Clerk. Subsequently, he became qualified for the post of Assistant Teacher and claimed that he was entitled to be considered for appointment on the said post on compassionate ground. The Court relying on Umrao Singh (supra) held that once appointment has been made on compassionate ground, the claimant is not entitled to get any other appointment on different post simply because he has now obtained qualification for other

¶10

¶11

post subsequently.

¶12

In Kamlesh Kumar Pandey Vs. State of U.P. and another 2001 (3) UPLBEC 2188 Sri Pandey was appointed on compassionate basis as a class-IV employee. He accepted the appointment and joined the service without any objection. Claiming thereafter appointment on a class-III post he approached this Court. Rejecting the claim, it was held:

¶13

"Once 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 reagitate this matter in future on the basis of change of circumstances in further leaving everything in turmoil and in a state of indecisiveness. It if is permitted, no litigation will ever come to an end." (Para 10)

¶14

5. Similar is the view taken by another Hon'ble Single Judge in Raghunandan Pandey Vs. District Inspector of Schools, Basti and others, 2004(3) AWC 2535 and in para 8 of the judgement the Court said:

¶15

"It is well-settled that appointment on compassionate ground is given only to tide away the sudden financial crisis which the family of the deceased employee faces because of the sudden death of the sole bread earner of the family. Thus, once a member of the family of the deceased employee is given appointment on such ground, which is also accepted by the claimant, the reason for giving such appointment, which is for support to the family of the deceased employee, does not exist thereafter. The appointment under the Dying-in-Harness Rules cannot be made an alternate source or mode of appointment."

¶16

6. In Shyamdhar Mishra Vs. State of U.P., 2006(2) AWC 1415 reiterating the aforesaid view following Umrao Singh (supra) this Court in para 9 of the judgement held:

¶17

"In my view, once the appointment is made on the compassionate ground, the said rule comes to an end and no further appointment could be made under the said Rules. The authority could not, in any manner, reconsider the case of the petitioner or of any other person where an appointment had already been given at some anterior point of time, on compassionate ground under the Dying-inHarness Rules."

¶18

7. The same thing has been reiterated in Suresh Prasad Singh Vs. State of U.P. and others, 2006(4) AWC 3718 (para 5).

¶19

Another Division Bench of this Court following Umrao Singh (supra) in Shardendu Tiwari Vs. State of U.P. & others in Special Appeal 908 of 2006 decided on 22.8.2006 held as under:

¶20

: "The submission of learned Standing Counsel that once compassionate appointment is accepted, the right is exhausted and there cannot be any second consideration for the same right is well founded. The judgment of Apex Court in State of Rajasthan (supra) fully support the said submission."

¶21

Learned Single Judge has rightly dismissed the writ petition of appellant. We find no fault in the judgement.

¶22

Appeal is dismissed accordingly. No order as to cost.

¶23

Order Date :- 5.12.2017/Sanjeev

¶24

Nilendra Tiwari v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Nilendra Tiwari v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Jagdish Sharan Agrawal Vs the District Inspector of Schools and Others

Sri Ram Laxmi Narayan Marwari Hindu Hospital Vs Union of India Thru Secy. and 5 Others

Mahesh Chandra Agrawal and 2 Others Vs State of U.P. and 4 Others

Director of Education Madhyamik and Others Vs Ms. Neelam Yadav and Others

Sat Prakash Sharma and Another Vs District Judge Bulandshahar and Others

Khem Chandra and 4 Others Vs State of U.P. and 3 Others