Surya Kant Kadam Vs. State of Karnataka and ors. - Court Judgment

Excerpt:
service - promotion - article 14 of constitution of india - appellant given compassionate appointment - similar appointed persons were promoted - appellant not considered for promotion - non-consideration of appellant's name for promotion while similar appointed persons considered was discriminatory and violative of article 14 - order of tribunal rejecting prayer of appellant for being considered for promotion set aside. - section 30: [s.b. sinha & cyriac joseph, jj] setting aside of award arbitrator taken into consideration ultimate contract and found that four letters which were said to be sole repository of contract formed part thereof - on the basis of said letters arbitrator concluded in respect of first claim of contractor that concluded contract took place and he was entitled to additional payment of 2.25% over and above quoted rates - similarly in relation to claim no.2 arbitrator found that fact that claimant received payment only at rate of 21% towards labour escalation would not preclude claimant from claiming at 40% as per contract, particularly, when it was clearly mentioned in one of the letters that 40% will be labour component which forms part of contract held, high court setting aside of said award is illegal. section 30: [s.b.sinha & cyriac joseph,jj] setting aside of award extra payment of labour involved in construction of high rise building - dispute as to held, what would constitute a high rise building was defined. a portion of the building cannot be high rise and a portion would fall within the purview of the said definition. the opinion of the arbitrator that the same workers may have to work for constructions of the entire building as it will be impossible for any contractor to employ any workmen to work exclusively for the high rise building was proper. furthermore, the same workmen may have to work in different parts of the same building at different times. it would lead to an absurd situation if the workmen at one point of time are not paid the 20% of the excess amount and then paid the same and yet again denied the same benefit. - but having considered the facts and circumstances of the present case and admittedly the respondents 3 and 4, who were similarly situated like the appellant and who were given compassionate appointment later than the appellant, having been appointed as sub-inspector of excise, the appellant has a justifiable grievance.1. these appeals are directed against the impugned order of the karnataka state administrative tribunal. the appellant on the death of his farther was given a compassionate appointment as second division assistant/clerks, even though he had applied for the post of sub-inspector of excise and did possess the necessary qualification for the said post. respondents 3 and 4 whose father also died while in service were appointed similarly as second division assistant/clerk on 9-1-1978 and 19-12-1979 respectively. those respondents 3 and 4 while continuing as second division assistant/clerk were later on promoted/appointed as sub-inspector of excise on 3-10-1987 and 27-4-1988. the appellant who had been earlier appointed on compassionate ground as second division assistant/ clerk and was entitled to be considered for appointment as sub-inspector of excise was not considered when the respondents 3 and 4 were appointed as sub-inspector of excise. the appellant therefore moved the state administrative tribunal claiming that his case for appointment as sub-inspector of excise be considered or in the alternative the appointment of respondents 3 and 4 be quashed. the tribunal considered the application of the appellant and did not grant the relief of his case being considered for appointment as sub-inspector of excise. the tribunal, however, quashed the appointment of respondents 3 and 4 as sub-inspector of excise. against the aforesaid order, the state of karnataka had approached this court in special leave petition but that special leave petition stood dismissed. the respondents 3 and 4 however, approached this court against the order quashing their appointment as sub-inspector of excise. this court, however, made some observations in that special leave petition and permitted the respondents 3 and 4 to file an application for review before the state administrative tribunal. pursuance to the aforesaid order of this court, the respondents 3 and 4 having approached the tribunal for review of the earlier order, the tribunal by the impugned order reviewed its earlier order and did not interfere with the appointment of respondents 3 and 4 on the ground that the appellant has moved the tribunal against the appointment of respondents 3 and 4 belatedly and therefore the same could not be interfered with. it is this review order of the tribunal which is the subject matter of challenge in the present appeals.2. the learned counsel for the appellant contended that even though the respondents 3 and 4's appointment could not be assailed on the ground of belated approach by the appellant but the prayer with regard to consideration of the appellant for the post of sub-inspector of excise could not have been rejected by the tribunal. the learned counsel appearing for the state government on the other hand, contended that against the earlier order when the tribunal denied the relief of considering the case of the appellant for the post of sub-inspector of excise, the appellant having not moved this court, the same has become final and therefore should not be interfered with by this court. there is some force in the aforesaid contention of the learned counsel for the state. but having considered the facts and circumstances of the present case and admittedly the respondents 3 and 4, who were similarly situated like the appellant and who were given compassionate appointment later than the appellant, having been appointed as sub-inspector of excise, the appellant has a justifiable grievance. it is true that the appointment on compassionate ground in the state of karnataka is not governed by any statutory rules but by set of administrative instruction and as such is not enforceable in a court of law. but the grounds on which the appellant makes out the case for consideration of his case, is the violation of article 14 and discriminatory treatment meted out to the appellant. it is undisputed that the date on which the appellant was given a compassionate appointment as the second division assistant/clerk he had the necessary qualification for being appointed as sub-inspector of excise. it is also undisputed that the respondents 3 and 4 were given appointment initially as second division assistant/clerk but later than the appellant. when the state therefore thought it fit to change the post of respondents 3 and 4 and appointed them to the post of sub-inspector of excise, unless there is any justifiable reason exist, there is no reason as to why the appellant should be treated with a hostile discrimination. in the aforesaid circumstances, we set aside the impugned order of the tribunal rejecting the prayer of the appellant for being considered for the post of sub-inspector of excise and we direct that the state government may consider the case of appointment of the appellant as sub-inspector of excise. be it stated, in the event he is appointed it would be prospective and he will not be entitled to any retrospective benefit. the appeals are allowed accordingly.