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Allahabad HC dismisses appeal seeking upgrade in compassionate appointment post

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The Allahabad High Court has held that the object of compassionate appointment is to enable the family of the deceased employee to tide over the sudden financial crisis due to the breadwinner’s death which has left the family in penury and without means of livelihood.

The Division Bench of Justice Surya Prakash Kesarwani and Justice Jayant Banerji passed this order, saying it is an exception to the normal rule of public employment and a concession.

The Court was hearing the special appeal filed by Iqbal Khan praying to set aside the judgment and order dated 18.07.2019, passed by the Single Judge in Writ – A No – 9064 of 2019  (Iqbal Khan Vs. State Of U.P. And 2 Others).

The impugned judgment and order dated 18.7.2019, passed by the Single Judge is:-

 “Petitioner had applied for compassionate appointment, consequent upon the death of his father. An order was passed on 14.5.2015, declining appointment on the post of pharmacist and offering him appointment on the post of lab attendant or any other post for which petitioner possesses requisite qualification. Pursuant to this direction, petitioner applied for the post of lab attendant and has been offered appointment also. Petitioner has been working since July 2015. He has now approached this Court with the grievance that qualification for the post of pharmacist had been amended and that amended rule had not been taken note of as per which he is eligible for appointment to the post of pharmacist.

The Standing Counsel has obtained instructions, according to which, appointment to the post of pharmacist is to be made through UP Subordinate Service Selection Commission and, therefore, in view of the provision contained in Rule 5 read with Rule 3 of the UP Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the ‘Rules of 1974’), no compassionate appointment can be granted on such post. It is stated that the vacancies have otherwise been notified on the post of pharmacist to the Selection Commission. Rules of 1974 clearly provides that appointment can be offered only on a post for which recruitment is not required to be undertaken by the UP Subordinate Service Selection Commission. Since the post of pharmacist is earmarked to the Commission for recruitment, the petitioner’s claim for compassion on it cannot be considered. The petitioner has been appointed to the post of lab attendant in July 2015, and therefore, he has otherwise acquiesced to his appointment on the said post. There is no challenge laid to the order declining petitioner’s claim on the post of pharmacist. In that view of the matter, no relief can be granted to the petitioner. The writ petition is dismissed.”

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It is admitted to the petitioner that a compassionate appointment was offered to him on 14.05.2019 and he accepted the offer and joined the post of lab attendant. After about four years, he filed the aforesaid writ petition claiming that he has the qualification for the post of pharmacist and, therefore, a mandamus may be issued to the respondents to give appointment/absorb the petitioner on the post of pharmacist in place of the post of lab attendant considering his qualification.

The aforesaid contention of the petitioner has been rejected by the impugned judgment and order passed by the single judge on two grounds firstly the appointment on the post of pharmacist is to be made through UP Subordinate Service Selection Commission which has been notified by the Commission for selection and secondly, the petitioner has otherwise acquiesced to his appointment on the post of lab attendant.

Aggrieved with the aforesaid judgment passed by the single judge, the appellant has filed the appeal.

The counsel for the petitioner submitted that as per Rule 5 of the UP Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 , the appointment has to be given by the employer in accordance with the qualification of the candidate applying for compassionate appointment under Rules 1974.

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He further submitted that even if the petitioner has accepted appointment to the post of lab attendant under the Rules 1974 yet his claim for the post of pharmacist on the basis of qualification, cannot be denied by the respondents.

The Court held that the basic intention to grant compassionate appointment is that on the death of the employee concerned his family is not deprived of the means of livelihood vide PNB Vs. Ashwini Kumar Taneja, (2004) 7 SCC 265 (para 4). It cannot be claimed by way of inheritance vide State of Chhattisgarh & others Vs. Dhirjo Kumar Sengar (2009) 13 SCC 600 (para 10 and 12). In Santosh Kumar Dubey Vs. State of U.P., (2009) 6 SCC 481 (para 11 & 12), the Apex Court held that Compassionate Appointment cannot be treated as a bonanza.

“In view of the law laid down by the Supreme Court and the Court referred above, we do not find any error of law in the impugned judgment”

-the Court observed while dismissing the Special Appeal.

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