# Rajesh Mahajan v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-18
- **Case number:** Civil Misc. Writ Petition No. 67672 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-mahajan-v-state-of-u-p-and-ors-42910
- **Pages:** 6

## Headnote

Constitution of India, Art.-226-Service lawclaim of appointment on post of village
development officer-petitioner already got
compassionate appointment on post of
junior clerk-on supernumerary post-heldonce accepted-ceased to put any claim for
appointment on higher post-contrary to
Rules 1978-parity can not be claimed
against law.

Held: Para-8&9

## Text

232 INDIAN LAW REPORTS ALLAHABAD SERIES
terms as may be too onerous. The Supreme
Court held that cost should be assessed that
would reasonably compensate the plaintiff for
the loss of time and inconvenience caused by
relegating back the proceedings of the case to
an earlier stage. The Supreme Court held that
the provision of Order 9, Rule 7 of the Code
of Civil Procedure is basically to ensure the
orderly conduct of the proceedings by
penalizing improper dilatoriness calculated
merely to prolong the litigation. Ensuring
orderly conduct of the proceedings by
penalizing improper dilatoriness can only be
done by imposition of cost or otherwise but it
cannot be interpreted to mean that the word
"otherwise" would also include imposition of
the amount claimed, which has not as yet
fructified by way of a decree or order. The
decision of the Supreme Court in Arjun
Singh's case (supra) was reiterated in Vijay
Kumar Madan and others Vs. R.N. Gupta
Technical Education, AIR 2002 SC 2082 and
in Tea Auction Ltd. Vs. Grace Hill Tea
Industry and another 2006 (9) Scale 223 has
followed the same view.

8. In Moin Leather Wear Exports and
others Vs. Oriental Bank of Commerce,
Chennai, 2012 (2) DRTC 829 (Mad.) a
Division Bench of the Madras High Court
was faced with a similar situation. The
Division Bench held that such conditions of
predeposit could not be exercised while
setting aside an ex parte order, inasmuch as
such conditions is onerous and that an
attempt was being made to recover the
amount without taking up the matter on
merits. Similar view was again reiterated by
another Division Bench of the Gwalior
Bench of Madhya Pradesh High Court in
Alok Saboo and others Vs. State Bank of
India and others in Writ Petition No.1987
of 2013 decided on 13th September, 2013.

9. In the light of the aforesaid, the Court
finds that the direction of the Tribunal
imposing a predeposit of 30% of the claimed
amount, which has not as yet been adjudicated
on merits nor any decree has been passed
could not be imposed upon the petitioner.
Such onerous conditions is contrary to the
provisions of Section 22(2)(g) of the Act of
1993. Such onerous conditions is wholly
arbitrary and harshly excessive quite apart
from being unreasonable and, therefore, the
impugned order cannot be sustained.

10. For the reasons stated aforesaid,
the order of the Tribunal, the order of the
Appellate Tribunal and the order passed in
review application are patently erroneous and
are quashed. The writ petition is allowed.
The recall application of the petitioner is also
allowed subject to payment of cost of
Rs.20,000/-, which shall be paid by the
petitioner to the respondent-bank on or
before the 31st December, 2013. If such
amount is paid and proof is filed before the
Debts Recovery Tribunal, the petitioner
would be permitted to file the written
statement on or before 15th January, 2014. It
is made clear that no further time would be
allowed to the petitioner.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 67672 of 2013

Rajesh Mahajan..... .Petitioner
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Ajay Sengar

Counsel for the Respondents:
C.S.C.
1 All] Rajesh Mahajan Vs. State of U.P. and Ors.
233
Constitution of India, Art.-226-Service lawclaim of appointment on post of village
development officer-petitioner already got
compassionate appointment on post of
junior clerk-on supernumerary post-heldonce accepted-ceased to put any claim for
appointment on higher post-contrary to
Rules 1978-parity can not be claimed
against law.

Held: Para-8&9
8. It is not in dispute that recruitment and
appointment
to
the
post
of
Gram
Panchayat Adhikari is governed by a
separate set of rules namely U.P. Gram
Panchayat Adhikari Service Rules 1978 as
amended by U.P. Gram Panchayat Adhikari
Service(First Amendment) Rules 1989.
Under the Rules, there is no provision for
recruitment by transfer from another post,
may be in the same pay scale. The
petitioner has not shown any legal or
otherwise right vested under provision
whereupon respondents can be obliged to
consider him for appointment on a post of
Gram
Panchayat
Adhikari
instead
of
making recruitment in accordance with
statutory rules applicable for the said post.

9.
 So far as petitioner's right for
compassionate appointment is concerned, it
has already exhausted as soon as the
petitioner was appointed on a post of Junior
Clerk
vide
appointment
letter
dated
24.4.2006 and accepting the same, he joined
thereat and working for last seven years and
more. Once an appointment is made on
compassionate basis, the incumbent ceased
to
have
any
right
to
claim
further
appointment on any other post equivalent or
higher status. Moreover, it is not the case of
the petitioner that he joined the post of
Assistant
Clerk
under
any
compelling
circumstances and under protest.

Case Law discussed:
W.P. No. 1094 of 2005(SS); 1994(6) SCC 560;
2000(4) AWC 3262; 2001(3) UPLBEC 2188;
2004(3) AWC 2535; 2006(2) AWC 1415;
2006(4) AWC 3718; Special Appeal No. 908 of
2006; AIR 2001 SC 2415; (2010) 2 SCC 422;
(2010)2 SCC 728; AIR 2000 SC 2306; AIR
2003 SC 3983; AIR 2004 SC 2303; AIR 2005
SC 565; AIR 2006 SC 1142.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The petitioner has sought a writ of
certiorari
for
quashing
advertisement
no.1265/P-4/Stha/Gram Panchayat AdhikariBharti/2013-14 dated 04th September, 2013
whereby 16 vacancies of Gram Panchayat
Adhikari in District Jhansi have been
advertised. He has also sought a mandamus
commanding respondent no.3 to consider
him for appointment on the post of Gram
Panchayat Adhikari.

2. The brief facts, not in dispute, are
as under:

3. The petitioner's father was a Gram
Panchayat Vikas Adhikari and died in harness
on 12.6.2005 while posted in Development
Block Month, District Jhansi. The petitioner
applied for compassionate appointment under
U.P.
Recruitment
of
Dependents
of
Government Servants Dying in harness Rules,
1974 (hereinafter referred to as "1974 Rules").
He was appointed as a Junior Clerk in the pay
scale of Rs.3050-4590 (now revised to
Rs.5200-20200) against a supernumerary post
since there was no vacancy in the office of
District Panchayat Raj Office, Jhansi, vide
order dated 24.4.2006. It clearly contemplates
that supernumerary post shall continue till a
vacancy on the post of Junior Clerk in the
office, occur. Consequent to the appointment
letter dated 24.4.2006, petitioner joined
service and has been discharging duties since
then. It is also pleaded that post of Gram
Panchayat Adhikari were designated as "Multi
Purpose Worker" and ceased to exist hence
when petitioner was appointed, hence there
was no vacancy of Gram Panchayat Adhikari
and he was not appointed on the said post in
2006. However, it was revived vide
234 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Order dated 22.7.2004 and
several persons were appointed/absorbed
thereon. Some persons, who were appointed
as Junior Clerk, applied for their absorption as
Gram Panchayat Adhikari, which was
allowed and granting parity, this Court in Writ
Petition No.1094 of 2005 (SS) Braj Pal Singh
and others Vs. State of U.P. & Others) also
issued similar directions vide judgment dated
10.2.2005, which reads as under:

"In this backdrop the Learned
Counsel for the petitioners submitted that
the petitioners in like manner are also
entitled
for
being
considered
for
appointment on the post of Gram
Panchayat Adhikari.

Learned
Standing
Counsel,
in
opposition, argued that in view of the fact
that the petitioners having been appointed
as clerk on compassionate grounds and
having accepted the same, subsequently
cannot turn around and claim appointment
on the post of Gram Panchayat Adhikari
as revival of the same at a later stage
would not give them any indefeasible
right for such appointment.

In view of the fact that subsequently
vide Annexures no.10 to 12, upon revival
of the posts in question, the candidates
were considered and were appointed on
compassionate grounds, therefore, in the
circumstances, it is hereby directed that
the opposite parties shall also consider,
within a period of four weeks from the
date a certified copy of this order is
served on the opposite parties, the case of
the petitioners for appointment/absorption
on the posts of Gram Panchayat Adhikari
against the existing posts.

With the aforesaid direction the writ
petition is finally disposed of."

4. It is contended that present
petitioner is also entitled for the same
benefit. He also drew my attention to the
letter dated 24.7.2009 sent by District
Panchyat Raj Officer, Jhansi to Director
Panchayati Raj in which petitioner was
shown as surplus staff working on the
post of Junior Clerk and contended that
since he is surplus staff, he can be
absorbed against vacant post of Gram
Panchayat Adhikari and therefore, before
making any direct recruitment, petitioner
should be considered for the same.

5. This Court vide order dated
11.12.2013 required District Panchayat Raj
Officer, Jhansi respondent no.3 to inform
whether petitioner is a surplus staff or
appointed against a supernumerary post,
inasmuch as, a person becomes surplus staff
when the post on which he is working is no
more existing and he is kept in surplus staff
pool but one, who is appointed on a
supernumerary post, is not a surplus staff as
such and the two terms/canditions are different.

6. Today, District Panchyat Raj
Officer himself has appeared before this
Court and also filed an affidavit stating that
due to wrong format used by his office, an
inadvertent
mistake
has
committed,
inasmuch as, petitioner is not a surplus staff
but is working on a supernumerary post as
Junior Clerk and his claim that he is a
surplus staff is incorrect. He said that
Director required information in regard to
staff working on supernumerary post but
while conveying this information, format of
surplus staff pool was used, which is an
error
committed
inadvertently
and
indeliberately.

7. In para 9 of affidavit, respondent
no.3 has categorically stated that petitioner is
not a surplus staff but working on a
supernumerary post. Now, it is in these facts
1 All] Rajesh Mahajan Vs. State of U.P. and Ors.
235
and circumstances, this Court has to consider
and decide whether petitioner is entitled to
the relief claimed for.

8. It is not in dispute that
recruitment and appointment to the post
of Gram Panchayat Adhikari is governed
by a separate set of rules namely U.P.
Gram Panchayat Adhikari Service Rules
1978
as
amended
by
U.P.
Gram
Panchayat
Adhikari
Service(First
Amendment) Rules 1989. Under the
Rules,
there
is
no
provision
for
recruitment by transfer from another post,
may be in the same pay scale. The
petitioner has not shown any legal or
otherwise right vested under provision
whereupon respondents can be obliged to
consider him for appointment on a post of
Gram Panchayat Adhikari instead of
making recruitment in accordance with
statutory rules applicable for the said post.

9. So far as petitioner's right for
compassionate appointment is concerned, it
has already exhausted as soon as the
petitioner was appointed on a post of Junior
Clerk
vide
appointment
letter
dated
24.4.2006 and accepting the same, he joined
thereat and working for last seven years and
more. Once an appointment is made on
compassionate basis, the incumbent ceased
to have any right to claim further
appointment on any other post equivalent or
higher status. Moreover, it is not the case of
the petitioner that he joined the post of
Assistant Clerk under any compelling
circumstances and under protest.

10. Moreover, Apex Court in the
case of State of Rajasthan Vs. Umrao
Singh, 1994(6) SCC 560 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 and the decision
given by the High Court of Rajasthan
otherwise was reversed by the Apex Court. In
para 8 of the judgement the Apex Court
clearly held:

"...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"."

11. Again this issue was considered by a
Division Bench of this Court in Dinesh
Chandra Sharma Vs. District Inspector of
Schools, Meerut 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 Hon'ble Single
Judge 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
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:
236 INDIAN LAW REPORTS ALLAHABAD SERIES

"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 re-agitate 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)

13. 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:

"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."

14. 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:

"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-in-Harness Rules."

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

16. 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 :

"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."

17. In Surya Kant Kadam Vs. State of
Karnataka & Ors. AIR 2001 SC 2415, on
which reliance has been placed by petitioner,
this Court has not laid down any law and no
such issue as raised herein, has been raised,
argued and decided therein so as to constitute
a binding precedent on this Court. I find that
the Court has not decided the matter but I find
that Apex Court has decided the matter in the
facts and circumstances of that case but
looking to the law laid down by Constitutional
Bench of Apex Court and various others as
already noted above, in my view, the above
decision lends no help to him.

18. On the contrary in absence of any
right vested in the petitioner to claim
appointment directly on the post of Gram
Panchayat Adhikari, I have no hesitation in
holding that his claim for appointment on the
post of Gram Panchayat Adhikari from the
post of Junior Clerk, which constitute a
separate and independent cadre is not legally
permissible and therefore, writ of mandamus
1 All] Mukhtar Ahmad Vs. Prescribed Officer/A.D.J. Kanpur Nagar & Ors.
237
cannot be issued directing respondents to do
something which is impermissible in law and
illegal. No person has a legal or constitutional
right to claim parity in the matter which is
something per se illegal. Article 14 has no
application in such case. In Union of India &
another Vs. Kartick Chandra Mondal &
another (2010) 2 SCC 422, the Court has gone
to the extent that even if some other persons
similarly placed have been absorbed, that
cannot be a basis to grant a relief by the Court
which is otherwise contrary to statute. In para
25 of judgment, the Court said:

"Even assuming that the similarly placed
persons were ordered to be absorbed, the
same if done erroneously cannot become the
foundation for perpetuating further illegality.
If an appointment is made illegally or
irregularly, the same cannot be the basis of
further appointment. An erroneous decision
cannot be permitted to perpetuate further error
to the detriment of the general welfare of the
public or a considerable section. This has been
the consistent approach of this Court.
However, we intend to refer to a latest
decision of this Court on this point in the case
of State of Bihar v. Upendra Narayan Singh
and Ors. (2009) 5 SCC 65, the relevant
portion of which is extracted hereinbelow:

"67. By now it is settled that the
guarantee of equality before law enshrined in
Article 14 is a positive concept and it cannot
be enforced by a citizen or court in a negative
manner. If an illegality or irregularity has been
committed in favour of any individual or a
group of individuals or a wrong order has
been passed by a judicial forum, others cannot
invoke the jurisdiction of the higher or
superior court for repeating or multiplying the
same irregularity or illegality or for passing
wrong order ..."

19. In State of Karnataka & others Vs.
Gadilingappa & others (2010) 2 SCC 728, the
Court reiterated that it is well settled principal
of law that even if a mistake is committed in an
earlier case, the same cannot be allowed to be
perpetuated. It is well settled that if a wrong has
been committed by the respondents in respect
to some other persons, that will not provide a
cause of action to claim parity on the ground of
equal treatment since the equality in law under
Article 14 is applicable for claiming parity in
respect to legal and authorized acts. Two
wrongs will not make one right. The Apex
Court in the case of State of Bihar and others
Vs. Kameshwar Prasad Singh and another,
AIR 2000 SC 2306; Union of India and
another Vs. International Trading Co. and
another, AIR 2003 SC 3983; Lalit Mohan
Pandey Vs. Pooran Singh and others, AIR
2004 SC 2303; M/s Anand Buttons Ltd. etc.
Vs. State of Haryana and others, AIR 2005 SC
565; and Kastha Niwarak G. S. S. Maryadit,
Indore Vs. President, Indore Development
Authority, AIR 2006 SC 1142 has held that
Article 14 has no application in such cases.

20. The writ petition therefore, is
devoid of merits and is dismissed.

21. No costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 68403 of 2013

Mukhtar Ahmad... Petitioner
Versus
Prescribed Officer/A.D.J. Kanpur Nagar &
Ors. ...Respondents
Counsel for the Petitioner:
Sri Vivek Mishra, Sri Rajesh Mishra

Counsel for the Respondents:
Sri Manish Tandon, Sri Atul Dayal.