HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. C.J. Court Special Appeal No. 1712 of 2010 Ashwani Kumar Gautam ------- Appellant Versus State Of U.P. & Ors. ------- Respondents Hon'ble Syed Rafat Alam,Chief Justice Hon'ble Krishna Murari,J.
This is an intra-court appeal under the Rules of the Court arising from the judgment and order dated 16th September, 2010 of the learned Single Judge dismissing the appellant's Writ Petition No. 42106 of 2008.
The short facts giving rise to this appeal is that the father of the appellant was a Class-III employee of S.K. Inter College, Maharara in the district of Hathras/Mahamaya Nagar (hereinafter referred to as the ''institution'), which is a recognized institution governed by the provisions of the U.P. Intermediate Education Act, 1921 (for short ''the Act') and the regulations framed thereunder. Appellant's father died in harness on 01.05.1993. He, therefore, made an application for giving compassionate appointment. He was, however, offered appointment against Class-IV post on 27.01.1994, but he did not join and made a request to appoint him on a post commensurate to his qualification. Thereafter, he was offered appointment against a Class-III post, which he claims to have joined under protest and the same was also approved by the District Inspector of Schools on 18.02.1994. The appellant, however, started making request to appoint him as Assistant Teacher keeping in view the fact that he possessed the requisite qualification for the said post. He approached this Court by filing Civil Misc. Writ Petition No. 54385 of 2003, which was disposed of vide order dated 11.12.2003 with the direction to the District Inspector of Schools, Hathras to consider the case of the petitioner-appellant and decide the same in accordance with law within a period of two months.
The District Inspector of Schools, Hathras, pursuant to order dated 11.12.2003, considered the case of the petitioner-appellant and vide order dated 13.01.2004 decided the representation holding that he was entitled for being appointed as Assistant Teacher. Further case set up by the appellant is that he was given appointment on the post of Assistant Teacher vide appointment order dated 31.01.2004 issued by the Manager of the institution and in pursuance thereof, he joined the post on 03.02.2004. His salary bills were regularly being forwarded, but the payment of salary was not made. He again approached this Court by filing Writ Petition No. 31905 of 2004 seeking a writ of mandamus to command the respondents to make payment of his salary.
It appears that the controversy regarding claim of the appellant for payment of salary on the post of Assistant Teacher remained pending. The then District Inspector of Schools vide letter dated 30th June, 2004, sought clarification from the Joint Director of Education whether the petitioner-appellant was entitled for payment of salary on the post of Assistant Teacher. Vide order dated 17.07.2008, the District Inspector of Schools rejected the claim of the petitioner-appellant for payment of salary and the approval accorded to his compassionate appointment as Assistant Teacher was cancelled. Aggrieved, the appellant approached this Court. Learned Single Judge finding that the petitioner-appellant having once availed the benefit of compassionate appointment in the year 1994, the right to such appointment stood exhausted and he does not have indefeasible right to claim appointment on compassionate basis as Assistant Teacher, dismissed the writ petition.
Learned counsel for the appellant vehemently contended that since the appellant holds requisite qualification for being appointed as Assistant Teacher, the same could not have been cancelled after giving him such appointment. He further sought to argue that under Regulation 103 of Chapter III, the dependent has to be given compassionate appointment keeping in view his qualification and since the appellant holds the requisite qualification prescribed for Assistant Teacher, he is liable to be given compassionate appointment on said post. Relying on the note appended to Regulation 103, it has been urged that since the said regulation has been made applicable in relation to those employees, who have died on or after 1st January, 1981, the petitioner-appellant having requisite qualification, ought to have been given compassionate appointment on the post of Assistant teacher.
Learned Standing Counsel refuting the submissions advanced on behalf of the appellant contended that once having accepted the appointment offered to him on a Class III post on compassionate grounds in the year 1994, he has no right to claim appointment on the teaching post subsequently.
In order to appreciate the rival contention and controversy involved, it would be relevant to examine the provisions contained in Regulation 103 of Chapter III. Regulation 101 to 107 of Chapter III provides the procedure for appointment on the post of Principal, Teachers as well as Class III and Class IV posts. Regulation 103 of Chapter III framed under Section 16G of the Intermediate Education Act deals with the appointment on compassionate ground. Regulations 101 to 107 were inserted in Chapter III vide Government Notification dated 30.07.1992.
The relevant Regulation 103, as it originally stood at the time of insertion, reads as under:-
"103. Notwithstanding anything contained in these regulations, where any teacher or employee of ministerial grade of any recognised, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less than eighteen years in age, can be appointed on the post of teacher in trained graduate grade or on any ministerial post, if he possesses prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment :
Explanation.- For the purpose of this regulation "member of the family" means widow or widower, son, unmarried or widowed daughter of the deceased employee.
Note.- This regulation and Regulations 104 to 107 would apply in relation to those employees who have died on or after 1 January, 1981."
Thus, initially the Regulation made a provision for making compassionate appointment only on a non-teaching post. Regulation 101 and 103 to 107 were again substituted vide notification dated 02.02.1995. The substituted Regulation 103 reads as under:-
"103. Notwithstanding anything contained in these regulations, where any teacher or employee of ministerial grade of any recognised, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less than eighteen years in age, can be appointed on the post of teacher in trained graduate grade or on any ministerial post, if he possesses prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment:
Provided that anything contained in this regulation would not apply to any recognised aided institution established and administered by any minority class.
Explanation.- For the purpose of this regulation "member of the family" means widow or widower, son, unmarried or widowed daughter of the deceased employee.
Note.- This regulation and Regulations 104 to 107 would apply in relation to those employees who have died on or after 1 January, 1981."
It is for the first time, vide notification dated 02.02.1995, provision was made for making compassionate appointment on a teaching post as well, provided the incumbent was having requisite qualification prescribed for the post. Thus in 1994, when the petitioner was offered appointment against a Class III post, which he claims to have joined under protest and was duly approved by the District Inspector of Schools on 18.02.1994, unamended Regulation 103 was in force under which a compassionate appointment could only have been made on a non-teaching post, inasmuch as the amended Regulation 103 making a provision of compassionate appointment on a teaching post, was enforced vide notification dated 02.02.1995.
The question which arises in this appeal for consideration is whether once compassionate appointment is accepted, can there be a second consideration on a higher post under the same right.
It is an admitted fact that the appellant accepted the offer of appointment against a Class-III post and pursuant thereto, he joined the service on 18th February, 1994. We are, therefore, of the considered view that the appellant, having accepted the compassionate appointment against a Class-III post, his right to be considered under the Act/Regulations is exhausted. The appellant, at the most, was entitled to be considered for giving compassionate appointment. It does not give him indefeasible right to claim appointment against his choicest post. Therefore, we are of the considered view that the appellant cannot now apply or pursue to reconsider him claim under the same provision for giving a higher position keeping in view his qualification. Our view finds support from the enunciation of law made by the Apex Court in State of Rajasthan Vs. Umrao Singh, 1994 Supp. (3) SCC 661 wherein it has been held as under:-
"Admittedly, the respondent's father died in harness while working as Sub-Inspector, C.I.D. (Special Branch) on 16.03.1988. The respondent filed an application on 08.04.1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for appointment on a compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion". Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case."
Again in the case of State of M.P. Vs. Ramesh Kumar Sharma, AIR 1994 SC 845, the Apex court has held that a person claiming compassionate appointment has no right to any particular post of his choice.
In view of the exposition of law by the Apex Court, it stands concluded that once an incumbent accepts the post offered to him under the Rules or Regulations governing compassionate appointment, the right extended to him under the said Rules or Regulations, stands exhausted and there cannot be any second consideration for the said right.
There is yet another aspect of the matter. In 1994, when the appellant exercised the right given to him by Regulation 103 for being considered for compassionate appointment, there was no provision for making such an appointment on a teaching post. The amended Regulation providing consideration for compassionate appointment on a teaching post was enforced by substituting Regulation 103 on 02.02.1995. Thus, in the absence of any provision, at the time of consideration of the appellant's case for making compassionate appointment on a teaching post, he could not have been considered for being offered appointment on the said post.
Learned counsel for the appellant referring to the note appended to Regulation 103 providing that this Regulation and Regulations 104 to 107 shall be made applicable in respect of those employees who have died on or after January 1981, urged that the effect of the note is that any person, who has received compassionate appointment prior to 02.02.1995 can claim appointment on another post after the amendment in the Regulation.
This issue stands answered by a Division Bench of this Court in the case of Shardanand Tiwari Vs. State of U.P. & Ors., 2006 (6) ALJ 449. In paragraph 13 of the said judgment, it has been held as under.
"13. Learned counsel for the appellant has also referred to Regulation 103 of Chapter III in which a note has been made that this regulation and Regulations 104 to 107 would apply in relation to those employees who have died on or after 1st January, 1981. The regulations 101 to 107 were inserted in Chapter III on 30th July, 1992. Prior to 30th July, 1992 there was no provision in the U.P. Intermediate Education Act, 1992 or the regulations framed thereunder with regard to giving of appointment to dependent of deceased employee on compassionate ground. However, the appointments on compassionate ground were being given to dependent of deceased employees by virtue of Government order which permitted appointment on compassionate ground with effect from 1st January, 1981. This is the reason why the note has been made in Regulation 103 of Chapter III that this regulation and Regulations 104 to 107 would apply in relation to employees who have died on or after 1.1.1981. Thus the appointment on compassionate ground to the employees who died on or after 1.1.1981 has been protected but the effect of the note is not that any person who has received compassionate appointment prior to 2.2.1995 can claim appointment on another post after the amendment in the regulations."
In view of the aforesaid observations of the Division Bench with which we are in respectful agreement, the submission advanced by learned counsel for the appellant based upon the note to Regulation 103 has no force.
The idea or the purpose for providing compassionate appointment, which is contrary to the general rule of appointment, is to mitigate the hardship of the dependents of the deceased employee who died leaving behind his dependents in penury. Such appointment is to be given immediately within the shortest possible time after the death of the deceased so that his family may not be ruined. In the case in hand, the appellant's father died in the month of May, 1993, as noticed above, and he was given compassionate appointment, pursuant to which he joined in the month of February, 1994 and, thus, the right to be considered under Regulation 103 stands exhausted. Regulation 103 does not confer or give right to give second consideration for giving appointment on the basis of qualification as it would be against the basic idea of giving compassionate appointment.
Thus, we do not find any error in the order of the learned Single Judge. The appeal, accordingly, fails and stands dismissed.
However, the appellant would be entitled to continue as Class III employee in terms of the order of the learned Single Judge.
21.11.2011 VKS/AHA