KAPIL KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) -Aggrieved by the judgment dated 22.1.2007, passed by the Hon'ble single Judge dismissing the appellant's Civil Misc. Writ Petition No. 40099 of 2006, this intra-court appeal under the rules of the Court has been preferred by the appellant contending that there is no substantial distinction between a regular employee and a seasonal employee and, therefore, once the scheme for compassionate appointment was extended and adopted for regular employees, the same would be deemed applicable to the seasonal employees. It is further contended that being a seasonal employee, the father of the petitioner-appellant had a right to be engaged continuously in the successive seasons, meaning thereby, for all purposes he was a regular employee and, therefore, cannot be denied the benefit of the provisions of compassionate appointment only on the basis that the petitioner-appellant's father was engaged as seasonal employee. Lastly, it is contended that the sugar company itself a seasonal department and, therefore, it cannot be said that the seasonal employees are not at par with the regular employees. For this purpose reliance has been placed on Aspinwall and Co., Kulshekar, Mangalore v. Lalitha Padugay and others, AIR 1996 SC 580 : 1995 AIR SCW 4500. Placing reliance on a Division Bench judgment of this Court in the case of State of U. P. and others v. Smt. Malti Devi, 2006 (1) ESC 316, it is contended that in respect to a Government servant, this Court has taken a view that even a daily wager is entitled to get the benefit of the Rules pertaining to compassionate appointment and, therefore, there is no reason for not extending the same to the seasonal employees of the sugar mills and any view otherwise is violative of Articles 14 and 16 of the Constitution of India.

(2.) FROM the record it appears that the appellant's father late Sri Bir Singh was engaged as Seasonal Clerk in Sahkari Ganna Vikas Limited, Daurala, district Meerut sometimes in February, 1997 and died while working in the same capacity on 1.6.2005 leaving behind his widow and other children including the appellant. The appellant said to have filed applications on 13.7.2005 and 22nd December, 2005 before the Secretary, Ganna Vikas Limited, Daurala, district Meerut and the District Cane Officer, Meerut requesting them to grant compassionate appointment to him. The aforesaid authorities found that there is no provision for giving compassionate appointment to the legal heirs of seasonal employee, hence could not accept the request of the appellant. The petitioner appellant further made a representation to the Cane Commissioner, Meerut in this regard which was also rejected vide order dated 27th March, 2006 whereupon the appellant preferred Civil Misc. Writ Petition No. 40099 of 2006 challenging the order dated 27th March, 2006 of the Cane Commissioner, Meerut as also the order dated 26th May, 2000, copies whereof are enclosed as Annexures-1 and 6 to the writ petition. He also sought a writ of mandamus commanding the respondents to provide appointment on compassionate basis commensurating to his qualification. The Hon'ble single Judge, having considered the submissions at length has dismissed the writ petition vide judgment dated 22.1.2007 which is impugned in this intra-Court appeal.

(3.) THE learned counsel for the appellant could not dispute this fact that either on the date of death of his father or even thereafter no such provision or scheme was/is in existence which provides for appointment on compassionate basis to the legal heirs of seasonable employee in a Co-operative Sugar Development Society. Suffice it to mention at this stage that compassionate appointment is not a matter of right unless it is provided in the statute or in a scheme, having force of law or binding upon the employer or the employee of the concerned department. THE appointment in harness is not a regular source of recruitment. It can be given only if it is provided in the statute, scheme or otherwise. In normal course, there are two sources of recruitment generally provided, one is direct and second is by promotion of the employees working in the establishment itself. In respect to the direct recruitment a procedure consistent with Article 16 of the Constitution of India is to be followed, i.e., advertisement of the vacancies to public at large to ensure their right of consideration for employment of those persons, who are eligible for consideration for such employment. THE Apex Court has observed, time and again, that the appointment on compassionate ground is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. THE dependants of the employees died-in-harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer. (See State Bank of India and another v. Somvir Singh, JT 2007 (3) SC 398 : 2007 (2) AWC 1552 (SC)).