Mushtaque Ahmad vs State of U.P.

Heard learned counsel for the appellant, the learned Standing Counsel for the respondents no. 1,2 and 3, Sri Ashish Pandey for respondent no. 4 and Pt. S. Chandra for the respondent no. 5.

The appellant before us was appointed against a supernumerary post. There is a single post of Class-III in the institution in question. We are not elaborating the facts as the same have been clearly spelt out in the judgment of the learned Single Judge which is under appeal. The said post is of the promotion quota and for that learned Single Judge has relied on the judgment in the case of Jai Bhagwan Singh v. District Inspector of Schools, Gautam Budh Nagar and others(2006) 3 UPLBEC 2397. The claim of the respondent-petitioner was for promotion against the said post. The appellant was claiming adjustment against the said post as he was working against a supernumerary post having been appointed on compassionate basis. These competing claims have been considered and the learned Single Judge arrived at the conclusion that the post which has to be filled up by promotion, being a single post, should not be adjusted by way of offering the said post to the appellant.

We are also of the considered opinion that appointment by way of compassionate appointment falls within the category of direct recruitment and, therefore, the appellant cannot be appointed against a promotional post for which the respondent was an aspirant. Learned Single Judge has, therefore, rightly drawn the conclusion on the existing law being binding, and there being no distinction so as to differ on this issue this Court does not find any ground to interfere in this appeal.

Learned Counsel for the appellant has heavily relied on the decision of Special Appeal (Defective) No. 437 of 2014 : Brahm Kumar Saxena v. State of U.P. & others and contended that the principles enunciated therein apply in this case as well. We find that in that case the person who was claiming promotion had been found to be guilty of moral turpitude having been convicted in a criminal case. It is in that background that the compassionate appointment was saved by allowing the appeal. The facts of the said case are, therefore, clearly distinguishable from the facts of the present case as such the ratio thereof does not come to the aid of the appellant.

There is no merit in the appeal. Rejected.