HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.1461 of 2006 (S/S) Constable C.P. No.1422 Amit Kumar and ten others … Petitioners Versus State of Uttarakhand & others … Respondents Dated:- 29th April, 2010 Hon’ble Tarun Agarwala, J. Heard Sri Sharad Sharma, the learned Senior Advocate duly assisted by Sri Kamlesh Lohani, the learned counsel for the petitioners and Sri Subhash Upadhyaya, the learned Brief Holder for the State. The petitioners applied for appointment under the Dying in Harness Rules in the police department upon the death of their father according to their qualifications. The petitioners have averred that they were educationally and physically qualified for appointment on the post of Sub Inspector and that, for the purpose of appointment on the post of Sub Inspector, the respondents directed the petitioners to undergo a training. It is alleged that pursuant to the training, six candidates were appointed as Sub Inspectors by an order dated 11th October, 2002. The petitioners were, however, not given an appointment on the post of Sub Inspector and were directed to give an undertaking dated 28th October, 2002 to the effect that they would not object to their appointment on the post of Constable. Pursuant to the undertaking, the petitioners were given appointment on the post of Constable, which they have joined and have started working on that post without any protest. The petitioners, upon coming to know that certain candidates were appointed as Sub Inspector, and the petitioners having the educational and physical qualification for the post of Sub Inspector represented the matter to the authorities. Pending such representation, the petitioners approached the writ court, which was disposed of by a judgment dated 27th February, 2006 directing the authority concerned to decide the matter. The authority, by the impugned order dated 23rd 2 May, 2006, rejected the representation of the petitioners for appointment on the post of Sub Inspector. The petitioners, being aggrieved by the said decision, have filed the present writ petition praying for the quashing of the order dated 23rd May, 2006 and further praying for a writ of mandamus commanding the respondents to appoint the petitioners on the post of Sub Inspector since they are eligible and qualified for the said post under the Dying in Harness Rules. The respondents in the impugned order took a stand that a decision was taken by the respondents on 04th October, 2002 not to appoint any person on the post of Sub Inspector and, based on such decision, the petitioners were appointed on the post of Constable, which they had accepted without any protest and an undertaking to that effect was also given. The same stand has been taken by the respondents in their counter affidavit. The learned senior counsel for the petitioners submitted that the action of the respondents in issuing the appointment letter dated 11th October, 2002 appointing six candidates on the post of Sub Inspector was wholly discriminatory since the said appointment letter was issued after the decision of 04th October, 2002. The learned senior counsel for the petitioners also invited the attention of the court to paragraphs 17 & 18 of the writ petition in which it was indicated that the similarly situated candidates, who underwent the same channel of selection process, were given appointments on the post of Sub Inspector, whereas the petitioners have been discriminated and have been appointed as Constables. The learned senior counsel for the petitioners also invited the attention of a decision of the Allahabad High Court in the case of Raj Kumar Pundir Vs. State of U.P. & others 2004 (5) AWC 3899, wherein the Allahabad High Court held that the decision of the respondents not to appoint the eligible candidates on the post of Sub Inspector was a hostile discrimination in a matter of public employment and, consequently, directed the respondents to consider the claim of 3 those candidates for the post of Sub Inspector. The learned senior counsel for the petitioners invited an attention of the court to a decision of this Court in the case of Neeraj Kumar Gupta Vs. District Judge, Haridwar passed in Writ Petition No.25 of 2003 (S/S), where the candidates appointed on a Class IV post claimed subsequently for an appointment on a Class III post, which was allowed by the court. Having heard the learned senior counsel for the petitioners at some length and having perused the judgments and the counter affidavit of the respondents, the court is of the opinion that the petitioners are not entitled for any relief. At the outset, the court finds that there has been no hostile discrimination against the petitioners. A decision was taken on 04th October, 2002 by the respondents that no appointment would be made on compassionate grounds on the post of Sub Inspector. The counter affidavit reveals that six candidates, who were appointed on the post of Sub Inspector, had undergone the training prior to 04th October, 2002 and an approval was granted by the Inspector General of Police for their appointment. In the present case, paragraph 17 & 18 of the writ petition, which was highlighted to the court, does not indicate that the petitioners are similarly situated to six candidates, who were given appointment by an order dated 11th October, 2002 or the fact that the petitioners had also completed their training etc. prior to 04th October, 2002. In view of the aforesaid, this Court is of the opinion that there is no hostile discrimination. In so far the decision dated 04th October, 2002 is concerned, the petitioners have no indefeasible right for a particular post in matters of appointment on compassionate grounds. The respondents have a prerogative to make appointments on compassionate grounds on a particular post. In the present case, the respondents have taken a decision not to appoint anyone on the post of Sub Inspector. Such decision is not arbitrary nor discriminatory. 4 With regard to claiming parity on the basis of the decision of the Allahabad High Court as well as of this Court, I am of the opinion that the decision of the Allahabad High Court is distinguishable. In that case, the petitioners were offered the post of Constable, which they protested and approached the writ court and, consequently, the court considered their matter and found that the decision of the respondents in not appointing the petitioners on the post of Sub Inspector was discriminatory and, accordingly, issued a mandamus. In so far as the decision of this court in the case of Neeraj Kumar (supra) is concerned, I am of view that the said judgment stands impliedly overruled in view of the decision of the Supreme Court in the case of I.G. (Karmik) & others Vs. Prahalad Mani Tripathi 2007 (6) SCC 162, wherein the Supreme Court has held that once an appointment has been made under the Dying in Harness Rule and has been accepted without any protest, the same cannot be reconsidered on the ground that the candidate was eligible for an appointment on a different post or on a higher post. In the present case, the petitioners have nowhere contended that they accepted their appointments on the post of Constable under protest. In the absence of any such protest coupled with the fact that the petitioners have themselves given an undertaking not to question their appointment on the post of Constable, this Court is of the opinion that the petitioners are not entitled for an appointment on the post of Sub Inspector. In view of the aforesaid, the writ petition fails and is dismissed. In the circumstances of the case, there shall be no order as to cost. (Tarun Agarwala, J.) Dated 29.04.2010 LSR