Sita Kumar vs State Of U.P. And Others
2012 Latest Caselaw 2587 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 28
 

 
Case :- WRIT - A No. - 29880 of 2007
 

 
Petitioner :- Sita Kumar
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Siddharth Srivastava,D.K. Srivastava
 
Respondent Counsel :- C.S.C.,Vishal Tandon
 

 
Hon'ble B. Amit Sthalekar,J.

Learned counsel for the petitioner states that he does not press the amendment application dated 10.2.2007 and it may be dismissed as not pressed. Accordingly, the amendment application dated 10.2.2007 is dismissed as not pressed.

This writ petition has been filed by the petitioner challenging the order dated 14.6.2007 whereby direction has been given by the District Inspector of Schools, Fatehpur (DIOS) to give appointment to respondent no. 4-Smt. Vimla Devi on compassionate ground. Subsequently, by means of an amendment application, the petitioner has also challenged the order dated 15.10.2007 which was passed in pursuance of the judgment of a Division Bench of this Court dated 24.9.2007 directing the authorities to give appointment to the respondent no. 4, setting aside the interim order granted by this Court on 14.6.2007.

There is an Institution by the name of Chandra Bhan Inter College, Damapur, District Fatehpur. The case of the petitioner is that he is working on the post of peon in the said Institution since 18.12.1999 and he is eligible for promotion on the post of Assistant Clerk. According to him in the said Institution there is one post of Head Clerk on which one Shri Shiv Bhushan was working and on two posts of Assistant Clerks one Shri Surendra Pratap Singh was working as a direct recruit and on the other post, Shri Babu Lal was working as promotee promoted from Class IV. The said Shri Babu Lal died on 8.10.1985 and therefore, on the vacancy in the promotee quota the petitioner claimed his promotion through his representation dated 21.8.2006 and 5.10.2006. On these representations a report was called by the DIOS from the Committee of Management of the Institution. The Committee of Management submitted its report stating that the post in question is a promotional post. Accordingly the DIOS by his order dated 21.11.2006 directed the Committee of Management to take steps to fill up the post in the promotee quota. The Committee of Management therefore, passed a resolution on 24.12.2006 recommending the name of the petitioner for promotion in the promotee quota against the vacancy arising on account of death of late Babu Lal. However, in the meantime an order was issued by the DIOS on 14.6.2007 recommending the name of Smt. Vimla Devi-respondent no. 4 for appointment on compassionate ground. Smt. Vimla Devi was appointed against the vacancy caused by the death of late Babu Lal.

I have heard Shri Vishnu Shanker Gupta, learned counsel for the petitioner, Shri Vishal Tandon, learned counsel appearing for the respondent no. 4 and the learned standing counsel representing State respondents, as well as perused the material on record. No one appeared on behalf of the respondent no. 3-Committee of Management though the case has been taken up in the revised list.

The contention of learned counsel for the petitioner is that the vacancy caused by the death of late Babu Lal belonged to the promotee quota and on the representations of the petitioner, the DIOS had also directed the Committee of Management to take steps for promotion of the petitioner against the said vacancy occurring in the promotee quota and therefore, in the circumstances, the respondent no. 4 could not have been appointed on compassionate ground against the said vacancy as the compassionate appointment could only be given against the quota reserved for direct recruitment.

On the other hand, Shri Vishal Tandon, learned counsel for respondent no. 4 submitted that the name of respondent no. 4 was recommended for appointment on compassionate ground considering that she was a widow of a deceased employee of the Institution and that she has two small children to take care of and that her financial condition was precarious. It was on a consideration of these aspects, the DIOS made a recommendation for the appointment of respondent no. 4 on compassionate ground. His submission is that Regulation 103 to 106 of Chapter III of the U.P. Intermediate Education Act, 1921 contemplates appointment on compassionate ground considering the immediate financial crisis and hardship faced by the family of the deceased employee, therefore, the appointment of respondent no. 4, having been made in terms of the statutory Rules and on a consideration of the family condition of the respondent no. 4, could not be faulted.

At the time of admission of the petition, an interim order was passed on 9.7.2007 whereby the order dated 14.6.2007 for appointing the respondent no. 4 was stayed. Aggrieved by the said interim order, the respondent no. 4 filed a special appeal no. 797 of 2007, which was allowed by a Division Bench of this Court by judgment and order dated 24.9.2007 and the stay order granted by the learned Single Judge dated 9.7.2007 was set aside and a further direction was given to the respondents to allow the appellant (respondent no. 4-Smt. Vimla Devi) to join on the post.

The learned counsel for the petitioner, however, submits that the post against which the respondent no. 4 was appointed being a post of the promotee quota, the appointment of the respondent no. 4 could not have been made. He has placed reliance upon a decision of the Supreme Court reported in (1997) 11 SCC 630 (Hira Man Vs. State of U.P. and others) wherein the Supreme Court has held that even though Rule 4 of the U.P. Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974 had overriding affect, it does not mean that the Rules made by the State of U.P. regulating recruitment and conditions of service of the persons appointed in the U.P. Government service and on the posts under that Government, or under Acts of U.P. Legislature, have intended to override such statutory provisions.

In the case before the Supreme Court two posts had fallen vacant, one of clerk and the other of a peon (Daftari). The respondent no. 4 therein was given compassionate appointment on the post of peon. The said order was challenged on the ground that the respondent no. 4 on the basis of his qualification was entitled to be considered for appointment on the post of clerk. The writ petition was allowed and a direction was given by the learned Single Judge to appoint the respondent no. 4 against the vacant post of clerk. This decision of the learned Single Judge was challenged in special appeal and the Division Bench held that the Dying in Harness Rules had an overriding affect over all the recruitment rules in respect of posts not falling within the purview of U.P. Public Service Commission and held that the respondent no. 4 on the basis of his qualification should have been appointed as a clerk and not as a peon. It also held that the appellant (before the Supreme Court) who was a class IV employee ought not to have been promoted as a clerk ignoring the claim of respondent no. 4. It is in this context that this judgment was given by the Supreme Court and the Supreme Court allowed the appeal of the appellant and set aside the judgement of the Division Bench dated 10.12.1993 and also dismissed the writ petition no. 444 of 1991 filed by the respondent no. 4.

Thus, the affect of the judgement of the Supreme Court was that a candidate eligible for appointment against the promotee quota would be appointed against the promotee quota subject to fulfilling all the eligibility qualifications for the said post and that the said post could not be filled up by a candidate on compassionate grounds by allocating the post of the promotee quota to a direct recruitment quota.

At this junction, Shri Vishal Tandon, learned counsel for the respondent no. 4 raised an apprehension that since the respondent no. 4-Smt. Vimla Devi had already been working in view of the judgment of the Division Bench of this Court she may not be disturbed otherwise she alongwith her children will find themselves on the road. He has also filed a counter affidavit in which he has stated that during the pendency of the writ petition the post of Assistant Clerk fell vacant when Shri Surendra Pratap Singh was promoted as Head Clerk on the retirement of Sri Shiv Bhushan and against the said vacant post of Assistant Clerk one Ajay Singh was promoted in June, 2010.

Be that as it may, in view of the facts narrated above and the law laid down by the Supreme Court, it is quite clear that the post against the promotee quota can only be filled up by promotion and the said post cannot be filled up by a candidate by direct recruitment even if such direct recruitment may be by way of compassionate appointment. However, considering the fact that the respondent no. 4 has been working in the Institution in view of the judgment of the Division Bench of this Court dated 24.9.2007, I am not inclined to interfere with the order dated 14.6.2007.

However, the writ petition is disposed of with a direction to the District Inspector of Schools, Fatehpur to consider the candidature of the petitioner for his promotion in the promotee quota on the post of Assistant Clerk in terms of the resolution of the Committee of Management dated 24.12.2006 and to pass appropriate orders within a period of one month from the date a certified copy of this order is received by him.

Before parting with the judgment it is made clear that so far as the appointment of respondent no. 4 is concerned, in an identical matter reported in 2005 ADJ 226 (All) Pramod Kumar Vs. State of U.P. and others where also the appointment made on compassionate ground was challenged this Court has held that since the appointment made on compassionate ground is a permanent appointment, the right of the appointee cannot be taken away and the compassionate appointee must be granted protection, therefore, it is directed that the consideration of the promotion of the petitioner by the District Inspector of Schools, Fatehpur shall be without prejudice to the appointment of respondent no. 4-Smt. Vimla Devi, already made.

Order Date :- 3.7.2012

o.k.