HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- WRIT - A No. - 7346 of 2004 Petitioner :- Sushil Kumar Mishra Respondent :- State Of U.P. And Others Petitioner Counsel :- B.N. Rai Respondent Counsel :- C.S.C. Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner and learned Standing Counsel.
Facts, giving rise to the dispute, are as under :
The father of the petitioner, namely, Ram Asharey Misra, who was functioning as Principal of Sarswati Sanskrit Pathshala, Pipiganj, Gorakhpur, which is affiliated with Samuprnanand Sanskrit University, Varanasi, died in harness on 18.10.1998. The petitioner made an application dated 13.10.2000 before the committee of management of the institution for appointment on compassionate ground. The said application was forwarded by the committee of management on 23.10.2000 to the District Inspector of Schools. The matter was also forwarded to Samuprnanand Sanskrit University. The proposal of the committee of management for giving compassionate appointment to the petitioner as Assistant Teacher was duly approved by the District Inspector of Schools, Gorakhpur as well as Vice Chancellor, Samuprnanand Sanskrit University, Varanasi vide letter dated 27.06.2001. In pursuance of the aforesaid approval, the committee of management issued an appointment letter dated 30.06.2001 and in pursuance whereof the petitioner joined on 08.07.2001. When the salary bill of the petitioner was forwarded by the committee of management, the District Inspector of Schools raised certain queries and called for the records from the management which were duly forwarded. The District Inspector of Schools also sought clarification from Samuprnanand Sanskrit University vide letter dated 26.09.2001. University vide letter dated 10.11.2001 informed the District Inspector of Schools that appointment of the petitioner is duly approved as such his salary may be released. However, still when no payment of salary was made, the petitioner approached this Court by filing Civil Misc. Writ Petition No. 47149 of 2003 which was disposed of vide order dated 21.10.2003 directing the Deputy Director of Education (Sanskrit), U. P., Allahabad to take a decision in the matter. In pursuance of the aforesaid direction, the Deputy Director of Education (Sanskrit) vide order dated 31.12.2003 rejected the claim of the petitioner on the ground that provision for making compassionate appointment was introduced in the Statute of the University for the first time vide Government Order dated 14.06.1999 and since on 18.10.1998 when the father of the petitioner died, there existed no provision for giving compassionate appointment as such the petitioner is not entitled for the same.
It has been urged by the learned counsel for the petitioner that since at the time of making appointment there existed a provision in the Statute for giving compassionate appointment as such the claim of the petitioner has wrongly and illegally been rejected on the ground that no such provision existed on the date of death of the father.
In reply, the learned Standing Counsel has tried to justify the impugned order by urging that compassionate appointment can only be made if there exists a rule or provision and in the absence of the same at the time of death of an employee, the dependents would not be entitled to compassionate appointment.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
Undisputedly, when the father of the petitioner died on 18.10.1998 there existed no provision in the Statute of the University for compassionate appointment. The provision was introduced for the first time by making amendment in the Statute by introducing Statue 21.06 which came into effect on 14.6.1999. Thus, when the petitioner made application on 13.10.2000, there was a provision in the Statute for making compassionate appointment. Equally undisputed is the fact that the appointment of the petitioner was duly approved by the Vice Chancellor, Samuprnanand Sanskrit University, Varanasi vide letter dated 27.06.2001 (Copy whereof has been annexed as Annexure '4' to the writ petition).
Once there existed a provision in the Statute for compassionate appointment at the time the petitioner applied for the same, there is no legally justifiable ground to deny the said benefit on the ground that the provision for compassionate appointment did not exist at the time of death of the employee. The provision of the rule as it existed on the date of making application shall apply and the same being very much in existence on the date when the petitioner applied for compassionate appointment, the benefit cannot be denied.
In view of the above facts and discussions, the impugned order dated 31.12.20003 passed by the respondent no. 2 is not liable to be sustained and is hereby quashed. The writ petition stands allowed and the petitioner shall be entitled for payment of salary along with arrears.
However, in the facts and circumstances, there shall be no order as to costs.
Order Date :- 9.12.2011 Dcs