IMPORTANT POINT
Compassionate appointments under the dying-in-harness rules cannot be upgraded once accepted, as they are not a matter of right.

JUDGMENT :

RAKESH THAPLIYAL, J.

1. The present Special Appeal is preferred against the judgment and order dated 29.09.2023, passed by the learned Single Judge in Writ Petition (S/S) No. 1489 of 2023, whereby, the Writ Petition was dismissed.

2. There is a delay of 66 days in preferring the instant Special Appeal. Delay is not opposed by the learned counsel for the respondents, and therefore, the Delay Condonation Application is allowed and delay in filing special appeal is condoned.

3. Brief facts of the case are that the father of the petitioner/appellant was a regular employee of GMVNL in a class-IV post, who died on 23.05.2019. Thereafter, the petitioner/appellant submitted a representation on 18.09.2019, claiming compassionate appointment being a son of the deceased employee under the dying-in-harness rules. Along with the application, the petitioner/appellant submitted his certificate of educational qualification. Subsequently, the claim of the petitioner/appellant was considered and he was offered the compassionate appointment by an order dated 19.09.2020 on the post of Ardali (class-VI post).

4. This compassionate appointment was on probation for a period of one year, which he voluntarily accepted by reporting joining on 17.10.2020. After completion of one year probation period, the petitioner/appellant was confirmed on 30.10.2021.

5. The petitioner/ appellant earlier preferred a Writ Petition, bearing Writ Petition (S/S) No. 593 of 2022, which was decided by this Court by an order dated 07.04.2022, whereby, the respondents were directed to decide the representation of the petitioner and pursuant to the direction of this Court, the representation of the petitioner/appellant was rejected by the Managing Director, Garhwal Mandal Vikas Nigam Limited (hereinafter to be referred as “GMVNL”) by an order dated 11 July, 2022, and being aggrieved with the said order, the petitioner/appellant again approached to this Court by means of Writ Petition (S/S) No. 1489 of 2023, which was dismissed on 29.09.2023 and being aggrieved with the same, instant appeal has been filed.

6. Subsequently, a writ petition was filed by the petitioner with the following reliefs:

“(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11/07/2022 (Annexure No. 2 to the petition) passed by respondent no. 2.

(II) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 2 to consider the claim of the petitioner on class III post and give him joining on class III post as per his educational qualification.

(III) Issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case may kindly be passed.

(IV) Award the cost of the petition.”

7. The main ground of challenging the order dated 11.07.2022 before the learned Single Judge was that though the petitioner/appellant was appointed on class-IV post but he was assigned different work and when he was appointed, he was in Tourism Store, from where on 25.08.2021, he was transferred to e-Governance Cell and assigned the work of data digitization. Subsequently, by an another office order dated 02.09.2021, petitioner/ appellant was assigned the work of reservation section in addition to his work of Tourism Store, which was assigned to him. Apart from this assignment of different work, it is also contended that the petitioner/appellant is a graduate and having all eligibilities for appointment to class-III post. Consequently, he submitted a representation again on 11.01.2021 before the respondents stating therein that the petitioner/appellant is a graduate, having computer diploma, as such requested for his claim for appointment on class-III post.

8. Admittedly, the representation was made after acceptance of appointment on class-IV post, which was offered to the petitioner/appellant on 19.09.2020, which he voluntarily accepted by giving his joining on 17.10.2020. This is the main bone of contention of t