ARUN MISRA Vs. UNION OF INIDA UOI

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution. It prays for issue of a Mandamus commanding the respondents to appoint the petitioner as Inspector in Central Excise.

(2.) THE petitioner is the son of one Vidyadhar Misra who was employed as Superintendent in the Central Excise. He died on 16th February, 1977 in harness, leaving behind his widow Smt. Indra Misra and six children - -five sons and one daughter. Their names are as under: 1. Dr. Ashok Misra. 2. Ajai Misra. 3. Arun Misra. 4. Anoop Misra. 5. Ratnesh Misra and 6. (Km.) Manju. The petitioner is the third son of late Vidyadhar Misra. The first two sons are earning members, the first being a doctor and the second being an Advocate. On the death of Vidyadhar Misra, the petitioner's mother made an application to the Collector, Central Excise for the employment of the petitioner as Inspector in the Central Excise. This application was made on 20th February, 1977. The petitioner at that time was studying in class B.A. The Department on the death of Vidyadhar Misra, granted enhanced family pension to the family of the deceased to meet the immediate necessities of the same. The petitioner passed his B.A. in the year 1977. On 15th November, 1977 the petitioner made a representation to the respondents to appoint him as Inspector in the Department on compassionate grounds. It is stated in the petition that the Department had taken a sympathetic attitude towards the family of the deceased at that time. The application of the petitioner was forwarded to the Central Board of Revenue, Delhi. In September 1978, the petitioner received an information from the Collector, Central Excise, Allahabad that his application had been rejected. The petitioner made a representation to the Ministry of Finance, Government of India in the last week of September, 1978. In his representation, it appears, he informed the Government that his two brothers who were earning members in the family, were not in a position to support the same as the eldest one, the doctor, had a wife and a son to support and the other, the lawyer, was not earning enough to support the family of the deceased, Sri Vidyadhar Misra. The Government was further requested not to take a based view against the petitioner because of a litigation fought between the Government and the petitioner's father in respect of his dismissal at one stage of his service, which was set aside by a civil suit. During the pendency of the representation before the Ministry of Finance, the petitioner filed a writ petition in this Court, being Writ Petition No. 10467 of 1978, for the early disposal of the representation. The petition was allowed, and by an order dated 27th February, 1978 this Court directed the respondents to dispose of the petitioner's representation within six weeks. By an order dated 23rd March, 1979, the petitioner's representation was rejected by the Government of India. The rejection was communicated to the petitioner by a letter of the same date, a copy whereof has been filed as Annexure 11 to the Writ Petition. This communication, so far as material, reads as follows: Your request for appointment in the Allahabad Central Excise Collectorate on compassionate grounds has been considered carefully by the Government of India but it has not been found possible to accede to it. Your request for appointment on compassionate ground, therefore, stands rejected.

(3.) THE petitioner's case is that the administrative instructions contained in Annexure 1 to the petition confer a right in his favour, and he is entitled to ask for an appointment in the Department on its basis. Reliance has been placed on Union of India v. K.P. Joseph : [1973]2SCR752 , to contend that even an administrative order confers a right, and a Mandamus can be issued to enforce the same. Further reliance has been placed on State of Mysore v. Srinivasmurthy 1976 -II L.L.J. 311, to submit that a principle of policy evolved by the State must be given effect to. These cases do not assist the petitioner in view of the policy declared by the Government in para 5 of the instructions as contained in Annexure 1 to the writ petition.