# Raghunandan Pandey v. District Inspector of Schools, Basti and others

- **Citation:** (2004) 2 ILRA 470
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-22
- **Case number:** Civil Misc. writ Petition No. 17415 of 1992
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghunandan-pandey-v-district-inspector-of-schools-basti-and-others-40404
- **Pages:** 4

## Headnote

Sri S.K. Tripathi,
Sri Ashraf Ali
Sri R.C. Tiwari
Sri C.P. Gupta, S.C.
S.C.

Compassionate appointment on class 4th
post-once offered by the Department
and
accepted
by
the
claimant-the
purpose of compassionate appointment
exhausted- promotional post can not be
claimed
by
such
candidate-
the
promotion of petitioner on the post of
clerk-cum-librarian has been cancelled
without affording any opportunity- and
the promotion of the claimant on the
post in question- held- illegal.

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. The purpose for which the
appointment
had
been
given
to
Respondent no. 5, had already been
exhausted
on
21.1.1992
when
he
accepted such appointment on a class IV
post. The Respondent no. 5 would
thereafter
be
entitled
for
being
appointed or promoted on a higher post
only in due course.

 Para 6

Further it is not disputed that the
impugned
order
had
been
passed
without affording any opportunity to the
petitioner. The rights of the petitioner
had already accrued in his favour once
he had been granted promotion on a
class
III
post
vide
order
dated
13.1.1992. If the respondents were to
pass an order to the detriment of the
petitioner, it is well settled law that the
petitioner would necessarily be required
to be given an opportunity of hearing,
which has admittedly not been given in
the present case. As such the impugned
order is liable to be quashed on this
ground also.

 Para 8
Case law discussed:
(2000) 3 UPLBEC 2522

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
470
Chairman Legal Services Authority, U.P.
for compliance.

State Government and IG, Prisons to
report on number of seriously ill
prisoners in jail, and steps taken for
their release under paragraphs 195, 196
and 197 of the Jail manual and other
provisions, within 3 months.

31. List for further hearing on
21.5.2004.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.4.2004

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. writ Petition No. 17415 of 1992

Raghunandan Pandey
...Petitioner
Versus
District Inspector of Schools, Basti and
others

 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Chandra
Sri S.P. Misra

Counsel for the Respondents:
Sri S.K. Tripathi,
Sri Ashraf Ali
Sri R.C. Tiwari
Sri C.P. Gupta, S.C.
S.C.

Compassionate appointment on class 4th
post-once offered by the Department
and
accepted
by
the
claimant-the
purpose of compassionate appointment
exhausted- promotional post can not be
claimed
by
such
candidate-
the
promotion of petitioner on the post of
clerk-cum-librarian has been cancelled
without affording any opportunity- and
the promotion of the claimant on the
post in question- held- illegal.

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. The purpose for which the
appointment
had
been
given
to
Respondent no. 5, had already been
exhausted
on
21.1.1992
when
he
accepted such appointment on a class IV
post. The Respondent no. 5 would
thereafter
be
entitled
for
being
appointed or promoted on a higher post
only in due course.

 Para 6

Further it is not disputed that the
impugned
order
had
been
passed
without affording any opportunity to the
petitioner. The rights of the petitioner
had already accrued in his favour once
he had been granted promotion on a
class
III
post
vide
order
dated
13.1.1992. If the respondents were to
pass an order to the detriment of the
petitioner, it is well settled law that the
petitioner would necessarily be required
to be given an opportunity of hearing,
which has admittedly not been given in
the present case. As such the impugned
order is liable to be quashed on this
ground also.

 Para 8
Case law discussed:
(2000) 3 UPLBEC 2522

(Delivered by Hon'ble Vineet Saran, J.)

1. Petitioner was appointed on a
class IV post on 1.12.1969 in the college
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2 All] Raghunandan Pandey V. District Inspector of Schools, Basti and others
471
of Respondent no. 4. He was thereafter
also confirmed in service. On a post of
Assistant Clerk-cum-Librarian (a class III
post) having fallen vacant in the college
of Respondent no. 4 on account of
superannuation of the incumbent, the
petitioner was promoted on such post,
which, according to the petitioner, was a
post falling in the quota to be filled up by
promotion. The said promotion was
granted to the petitioner vide order dated
13.1.1992.

2. The father of Respondent no. 5
was an Assistant Teacher in some other
college, who had died in harness in June,
1988. The respondent no. 5 had filed an
earlier writ petition with a prayer for
being given appointment under the Dying
in Harness Rules. This Court, vide its
order dated 13.12.1990, disposed of the
said writ petition with a direction to the
District Inspector of Schools to consider
his (Respondent no. 5 in the present writ
petition) case and give him appointment
under Dying in Harness Rules in
accordance
with
his
qualification,
preferably in the college in which his
father was working, or else, in case if
there was no vacancy in the said college,
in some other college of the district. Since
there was no vacancy in the college in
which the father of Respondent no. 5 was
working and a vacancy on a class IV post
had occurred on 13.1.1992 in the college
of Respondent no. 4 on account of the
promotion having been granted to the
petitioner
as
Assistant
Clerk-cumLibrarian
(a
class
III
post),
the
Respondent no. 5 was given appointment
on class IV post in the college of
Respondent no. 4 vide order dated
21.1.1992. Admittedly the Respondent no.
5 joined on the said post. By the
impugned order dated 11.5.1992 passed
by the District Inspector of Schools, the
promotion granted to the petitioner vide
order
dated
13.1.1992
has
been
withdrawn and the Respondent no. 5 has
been appointment on class III post on
which the petitioner had been promoted.
Aggrieved by the said order the petitioner
has filed the present writ petition.

On 20.5.1992, by an interim order
granted by this Court, the operation of the
impugned order dated 11.5.1992 had been
stayed and liberty had been granted to the
District Inspector of Schools to pass a
fresh order after giving an opportunity of
hearing to the petitioner and if any such
order was passed, the same was to be
subject to the result of this writ petition.

3. Counter and Rejoinder affidavits
have
been
exchanged
between
the
petitioner and respondent no. 5. No
counter affidavit has been filed by other
respondents nor has it been stated at the
Bar that any fresh order has been passed
by the respondent-authorities after passing
of the interim order dated 20.5.1992.
Learned counsel for the petitioner has
submitted that on the strength of the
interim order granted by this Court, the
petitioner is continuing to work on the
post of Assistant Clerk-cum-Librarian in
the College of Respondent No. 4.

4. I have heard Sri Satish Prakash
Misra, learned counsel for the petitioner,
Sri C.P. Gupta, learned Standing counsel
appearing for the State Respondents and
Sri
S.K.
Tripathi,
learned
counsel
appearing on behalf of Respondent no. 5
and have perused the record. With the
consent of learned counsel for the parties,
this writ petition has been heard is being
disposed of at this stage.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
472

The challenge of the petitioner to the
impugned order is three fold, namely,

(i) once the Respondent no. 5 had
availed the benefit of compassionate
appointment under the Dying in Harness
Rules, it was not open for him to claim
fresh appointment on a higher post,
(ii) no
appointment
on
compassionate ground could be made on a
post which was required to be filled up by
promotion and
(iii) the said order has been passed
without giving any opportunity of hearing
to the petitioner.

5.

Admittedly
the
initial
appointment of respondent no. 5 had been
made on 21.1.1992 on a class IV post,
which had fallen vacant on account of
promotion having been granted to the
petitioner on a class III post. Once the
respondent no. 5 had accepted the said
appointment on 21.1.1992, his claim for
appointment on compassionate ground
under the Dying in Harness Rules cease to
exist thereafter. The Apex Court in the
case of State of Rajsthan vs. Umrao
Singh 1994 (6) SCC 657 has laid down
that once the appointment has been made
on compassionate ground the claimant
would not be entitled to get another
appointment on different post simply
because he is qualified for other post. A
Division Bench of this Court, in the case
of Dinesh Chandra Sharma vs. District
Inspector of Schools, Meerut and
others (2000) 3 UPLBEC 2522, has also
taken a similar view that no one will be
entitled to claim appointment under the
Dying in Harness Rules more than once.

6. 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. The purpose for
which the appointment had been given to
Respondent no. 5, had already been
exhausted on 21.1.1992 when he accepted
such appointment on a class IV post. The
Respondent no. 5 would thereafter be
entitled
for
being
appointment
or
promoted on a higher post only in due
course.

7. As regards the other question that
the petitioner had been given promotion
on a class III post which post was meant
only to be filed up by promotion and not
by direct recruitment, the same has been
disputed by the Respondent no. 5 in his
counter affidavit. Although it is a settled
principle of law that appointment on
compassionate ground could not be given
on a post reserved for promotion, but
since as has already been held, once after
having already been appointed on a class
IV post, the Respondent no. 5 would not
be entitled for subsequent appointment on
a class III post on compassionate ground,
the said question, which involves disputed
facts as to whether the said post was
actually reserved for being filled up by
promotion or not, need not be decided in
this writ petition.

8. Further it is not disputed that the
impugned order had been passed without
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2 All] Desh Raj Mishra V. Chief Medical Superintendent Officer and another
473
affording
any
opportunity
to
the
petitioner. The rights of the petitioner had
already accrued in his favour once he had
been granted promotion on a class III post
vide order dated 13.1.1992. If the
respondents were to pass an order to the
detriment of the petitioner, it is well
settled law that the petitioner would
necessarily be required to be given an
opportunity
of
hearing,
which
has
admittedly not been given in the present
case. As such the impugned order is liable
to be quashed on this ground also.

9. For the foregoing reasons the
impugned order dated 11.5.1992 passed
by the Respondent no. 1 is quashed. The
writ petitioner shall be entitled to continue
to work on the class III post on which he
had been promoted by order dated
13.1.1992.

In the result the writ petition
succeeds and is allowed. No order as to
cost.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.5.2004

BEFORE
THE HON'BLE R.S. MISRA, J.

Civil Misc. Writ Petition No. 28894 of 1996

Desh Raj Mishra

...Petitioner
Versus
Chief Medical Superintendent Officer and
another

 ...Respondents

Counsel for the Petitioner:
Sri K.K. Singh

Counsel for the Respondents:
Sri R.P. Srivastava
S.C.

Constitution of India, Articles 14 and 16-
U.P. Subordinate Offices Ministerial Staff
Rules, 1985-Appointment made dehory
without following procedure of Selection
and appointment without any sanctioned
post, held, illegal and violative of Articles
14 and 16- Petitioner not entitled to any
salary- Not discriminatory.

Therefore, any appointment made by a
Statutory Authority, which may be a State
within the meaning of Article 12 of the
Constitution, if found to have been made
by a person without any competence or
without
following
the
procedure
prescribed by law and in case the
procedure is not prescribed and the
procedure adopted by the Authority is not
in consonance with Articles 14 and 16 of
the Constitution, the incumbent claim any
benefit as in such a case the contract of
service becomes unenforceable and in
executable.

Para 12

If the view contrary to the above is
accepted, the same would override the
mandate of the Constitution also, it will
take away the powers of the High Court
to issue a writ of quo warranto, wherein
the appointment of an incumbent can be
challenged not only by an aggrieved
persons but a stranger also. Invalidity of
an appointment may arise not only from
want of qualification, but also from the
violation of such legal conditions or
procedure for appointment as mandatory
and as a result of which the appointment
becomes void.

Para 13

I have heard learned counsel for the
parties. I find that there was no vacancy
and the procedure prescribed by the
rules relevant to the selection to the post
of
junior
grade
clerk
and
the
appointment said to have been made
was not in consonance to the provisions
of relevant rules applicable, as such the
selection was bad. The petitioner being
beneficiary appointed as a product of
spoiled system, or defective system shall
have no right to the post or as such he is
not entitled to the salary. The petitioner
has not named any of the person