- (1.) DEVI Prasad Singh, J. Heard Sri R. S. Pandey, the learned counsel for the petitioner and Sri Jai Shanker Mishra, learned standing counsel.
(2.) AFFIDAVITS have been exchanged and with the consent of parties counsel I proceed to decide the writ petition at the admission stage. The petitioner's father late Sri Hanuman Prasad was a mechanic in Lok Nirman Vibhag. According to petitioner's counsel, he was working against regular establishment and was a permanent employee of the department. He died in-harness on 18. 4. 1983. After his death, the petitioner applied for appointment on compassionate ground. Accordingly, the petitioner was given appointment on compassionate ground on the post of chowkidar. The petitioner raised dispute before the labour court raising plea that he cannot be appointed on temporary basis under work charge establishment. Since the petitioner's father was working against regular establishment, he was entitled to be appointed as regular employee. Other plea was that he qualified for Class-Ill post hence, he is entitled for appointment in Class-Ill cadre. The labour court by the impugned award has rejected the petitioner's claim on the ground that the petitioner failed to establish that he qualified for the post of Supervisor or work agent. However, the labour court not adjudicated the matter relating to appointment of the petitioner as regular employee. Feeling aggrieved, the petitioner approached this Court under writ jurisdiction. While assailing the impugned award, learned counsel for the petitioner relied upon the judgment of this Court in Rishiram and others v. Board of Revenue U. P. Allahabad and others, 2006 (24) LCD 641 : 2006 (2) AWC 2032, wherein, it has been held that the appointment made under Dying-in-Harness Rules, has to be treated as permanent appointment otherwise, the service of the employee may be terminated soon after appointment nullifying the very purpose of Dying-in-Harness Rules. In view of the Rishiram's case (supra), the argument of the petitioners' counsel seems to have got force that the appointment under compassionate ground should be treated as permanent appointment and it cannot be temporary or short gap appointment.
(3.) WITH regard to next submission that the petitioner is entitled to be appointed against Class-III post having passed high school, petitioner's counsel relied upon the judgment of this Court in Sandeep Kumar Maurya v. State of U. P. and others, 2006 (24) LCD 447, wherein this Court directed to make appointment against Class-III post with direction to create supernumerary post in case vacancy was not available. Rebutting the submission of the petitioner's counsel, Sri Badrul Hasan learned standing counsel submitted that under Dying-in-Harness Rules, dependant of the deceased employee has got no right of appointment or posting on a particular post. Learned standing counsel relied upon the judgment in [/mesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 and Director of Education (Secondary) and another v. Pushpendra Kumar and others, (1998) 5 SCC 192 : 1998 (3) AWC 1772 (SC), wherein Hon'ble Supreme Court has held that dependant of deceased Government employee has got no right to claim appointment on a particular post. Their Lordship of Supreme Court held that provisions of employment on compassionate ground on lowest post is justifiable and valid one more so when the deceased was not a person holding a very high office. In the case of Pushpendra Kumar (supra) Hon'ble Supreme Court reiterated the law laid down in earlier case and held that the dependant of deceased Government employee cannot claim appointment on a particular post. He possesses right to be considered for appointment against existing vacancy. It has also been held that no mandamus can be issued for creation of supernumerary post of Class-Ill post to adjust the dependant of deceased employee in case he is being chosen to be appointed against Class-IV vacancy.;