JUDGMENT :

1. Heard learned counsel for the petitioner, learned standing counsel for the State-respondents and Sri Manu Saxena, learned counsel for the respondent nos. 4 & 5.

2. Present petition has been filed with the following prayers:-

"(a) Issue, a writ or direction in the nature of certiorari to quash the impugned communication letter dated 26.9.2023 (Annexure No.1) issued by Respondent no.4-Chairman, Nagar Palika Parishad, Faridpur, Bareilly whereby refused to grant the appointment on Class-III post.

(b) Issue, a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities to appointment the petitioner on the post of Clerk (Class-III) under the Dying-In-Harness Scheme on account of the death of his father or according to this qualification as possible as earliest."

3. Brief facts of the case are that father of petitioner was working as Class-IV employee at Nagar Palika Parishad, Faridpur, Bareilly. During the course of service, father of petitioner died on 31.7.2022. After his death, petitioner has submitted an application for appointment as Class-III employee on compassionate ground, which was rejected. His appointment has not been considered, therefore, petitioner has filed an application before the District Magistrate upon which ADM has sought instruction from the respondent no.4, which was replied by him vide impugned letter dated 26.9.2023. In the said letter, it is mentioned that no post is vacant for Class-III employee and further in light of Government Order dated 17.6.2014, dependent of deceased has no right to claim particular position or place and it is the discretion of appointing authority to pass appropriate order warranted in the facts and circumstance of the case. Though, the letter dated 26.9.2023 was not communicated to petitioner, but coming to know that his claim has been rejected at the end of respondent No. 4 vide letter dated 26.09.2023, he has challenged the same by filing present petition.

4. Learned counsel for the petitioner submitted that in case post is vacant, it is required on the part of respondents to create supernumerary post for Class-III employee and grant appointment. He has placed reliance upon the judgment of Apex Court in the case of Sushma Gosain vs. Union of India reported in 1989 (4) SCC 468 as well as Division Bench of this Court in the case of Smt. Premlata vs. State of U.P. and others passed in Special Appeal Defective No. 620 of 2018 and Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as Rules, 1974) and submitted that petitioner is entitled for appointment on the post for which he is having qualification.

5. Sri Manu Saxena, learned counsel for the respondent nos. 4 & 5 has vehemently opposed and submitted that in light of Government Order dated 17.6.2014, petitioner has no right to claim particular post. He next submitted that State Government has challenged the judgment of Division Bench of this Court given in Smt. Premlata (Supra) before the Apex Court and Apex Court has reversed the judgment with specific finding that mere qualification cannot be a ground for appointment on higher post than the post held by the deceased employee. He also pointed out that it is not the case of petitioner that post of Class-III is vacant rather respondents are having specific case that post of Class-III employee is not vacant, which is also not disputed by the petitioner.

6. He further submitted that again the similar issue came up before the Apex Court in the matter of Suneel Kumar vs. State of U.P. and others reported in AIR 2022 SC 5416 and Apex Court has taken specific view that supernumerary post cannot determine the scope of the words "suitable employment." He firmly submitted that in both the cases, Rule 5 of Rules, 1974 has been interpreted, which was subject matter of Division Bench of this Court in the case of Smt Premlata (Supra), therefore, under such facts and