Janardan Sahai, J. - (1.) Heard Sri P.R. Ganguly, learned counsel for the petitioner and the learned counsel for the respondents.
(2.) The petitioner's father was a seasonal parchi vitrak, which is a Class IV post in the service of the Cane Co-operative Society. On his death the petitioner applied for compassionate appointment. The petitioner was given appointment as a Seasonal Clerk in the year 1993. The petitioner accepted the appointment. The petitioner has now filed this writ petition seeking Mandamus for giving him appointment/promotion as a permanent clerk in the Cane Co-operative Society. The basis of the petitioner's case is that after appointment of the petitioner as Seasonal Clerk the respondents 5, 6 and 7 were also given appointment on compassionate ground but as permanent clerks and the petitioner is therefore entitled to be given appointment from the date his juniors were given appointment. A counter affidavit has been filed by the cane society in which the stand is that the petitioner's father was a seasonal parchi vitrak and at the time of his death there were no vacancies and as such the petitioner was engaged as seasonal clerk. The petitioner having accepted the said appointment, it is not open to him to contend that he should be given appointment on regular basis. The matter is governed by rules known as U.P. Cane Co-operative Service Regulations. Regulation 40 of the said Regulation lays down the method by which promotions are granted. The Regulation provides that appointment/promotions shall be made in accordance with the list and in the order prepared by the Recruiting or appointing authority or by preferment from the lower rank and 50% of the seasonal staff shall be taken in regular employment. Regulation 20 provides that preferment shall be made from lower rank on basis of seniority. In the counter affidavit it is stated that there was a seniority list prepared and in that seniority list there are 293 persons senior to the petitioner awaiting promotion on the post of Clerk and the petitioner can not be given appointment superseding them.
(3.) Learned counsel for the petitioner relied upon a letter of the Commissioner (Annexure-1 to the writ petition) that the U.P. Dying in Harness Rules, 1974 shall be applicable to the employees of the Cane Co-operative Society. Under the said Rules compassionate appointment can be granted to a dependent of an employee who was permanent or regular or working in a regular vacancy. The petitioner's father was not a permanent employee. It has not been shown by the petitioner that his father was regular or had been working in a regular vacancy. He was merely a seasonal parchi vitrak. In the circumstances strictly speaking the petitioner was not entitled to a compassionate appointment under the said rules. In any case the petitioner had accepted appointment on the seasonal post way back in the year 1993 as is clear from the stand taken in the counter affidavit, which has not been disputed. At that time there was no vacancy in which the petitioner could have been given a permanent appointment. The petitioner having accepted the compassionate appointment as seasonal clerk can not claim permanent appointment retrospectively. The fact is also not disputed that there are 293 persons senior to the petitioner in the list that has been prepared. If any person is entitled to be given appointment/promotion from the seasonal clerks it is they who are senior in the said list. Undisputedly, under the said list the petitioner's turn has yet not come.;