Satish Chandra Dwivedi (Inre ... vs Om Prakash Mishra & 8 Others
2016 Latest Caselaw 3616 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Lucknow Bench Lucknow
 
*******
 

 
[  A.F.R. ]
 

 
Case :- SPECIAL APPEAL No. - 256 of 2016
 
	Appellant :- Satish Chandra Dwivedi (Inre 13656 S/S 	2016)
 
	Respondent :- Om Prakash Mishra & 8 Others
 
	Counsel for Appellant :- Pradeep Kumar Singh
 
	Counsel for Respondent :- C.S.C.,Avanish Kumar 	Singh,J.B.S. Rathore
 

 
Along with
 

 
1.	Case :- SERVICE SINGLE No. - 13656 of 2016
 
	Petitioner :- Om Prakash Mishra
 
	Respondent :- State Of U.P Thru. Prin. Secy.For 	Education (Basic) & Ors.
 
	Counsel for Petitioner :- Avnish Kumar 	Singh,Laltaprasad Misra
 
	Counsel for Respondent :- C.S.C,A.S. 	Pawar,J.B.S.Rathour,P.K.Singh Vats
 

 
2.	Case :- SERVICE SINGLE No. - 5174 of 2015
 
	Petitioner :- Om Prakash Mishra
 
	Respondent :- State Of U.P. Through Prin. Secy. Basic 	Edu. Lko. & Ors.
 
	Counsel for Petitioner :- Avnish Kumar Singh
 
	Counsel for Respondent :- C.S.C.,J.B.S.Rathour
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Shamsher Bahadur Singh,J.

The present special appeal has been preferred questioning the correctness of an interim order dated 08.06.2016, reproduced hereinunder:-

"Case :- SERVICE SINGLE No. - 13656 of 2016

Petitioner :- Om Prakash Mishra

Respondent :- State Of U.P Thru. Prin. Secy.For Education (Basic) & Ors.

Counsel for Petitioner :- Avnish Kumar Singh,Laltaprasad Misra

Counsel for Respondent :- C.S.C,A.S. Pawar,J.B.S.Rathour,P.K.Singh Vats

Hon'ble Ritu Raj Awasthi,J.

Notice on behalf of opposite parties no.1 to 4 has been accepted by learned Chief Standing Counsel, whereas Mr. J.B.S. Rathore, Advocate has accepted notice on behalf of opposite parties no.5 and 6 and Mr. H.G.S. Parihar, Senior Advocate assisted by Mr. P.K. Singh Vats, Advocate has put in appearance on behalf of opposite party no.9 and filed memo of appearance, same is taken on record.

Issue notice to opposite parties no.7 and 8 returnable at an early date.

Dr. L.P. Mishra, learned counsel for the petitioner submits that the petitioner has been appointed on the post of Clerk in the institution concerned. The appointment of petitioner shall be deemed to be approved under Rule 15 (5) (iii) of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees Service) Rules, 1984. The petitioner has preferred Writ Petition No.5174 (SS) of 2015 with respect to payment of salary to the petitioner, which is pending consideration, however, in most arbitrary and illegal manner the opposite parties under political pressure have taken a decision to appoint opposite party no.9 on compassionate grounds in place of petitioner.

Submission is that the opposite party no.9 is not entitled to get compassionate appointment and moreover the Committee for consideration of compassionate appointment cannot consider the validity of appointment of the petitioner and hold that appointment of petitioner on the post of Clerk is illegal. The order impugned clearly indicates that the Committee while considering the compassionate appointment of opposite party no.9 has come to conclusion that appointment of petitioner is illegal.

Mr. H.G.S. Parihar, learned Senior Advocate appearing for opposite party no.9, on the other hand, submits that the Management has committed fraud with respect to alleged appointment of the petitioner as no documents were sent to the office of B.S.A. for approval. Counter affidavit has been filed in Writ Petition No.5174 (SS) of 2015. The opposite party no.9 is in dire need of employment as there is no bread-earner in the family. He is fully eligible and entitled to get compassionate appointment. Moreover, the appointment of the petitioner was made prior to expiry of the period of thirty days as contemplated under Rule (iii) of 15 (5) of the Act which itself indicates that appointment of the petitioner was illegal.

Be that as it may, prima facie I am of the view that since writ petition preferred by the petitioner, which goes to the very root regarding alleged appointment of the petitioner on the post of Clerk in the institution is pending consideration the status of the petitioner at present shall not be changed.

List this case along with Writ Petition No.5174 (SS) of 2015.

In the meantime, opposite parties may file counter affidavit.

Till the next date of listing, the status-quo with respect to the petitioner shall be maintained, however, it is made clear that in case it is necessary to give compassionate appointment to opposite party no.9 the same shall be done by giving him compassionate appointment against a supernumerary post, looking to his qualification.

Order Date :- 8.6.2016 "

The dispute centres around the appointment on the post of a Clerk in a privately managed Basic School namely, Sri Patti Devi Uchchatar Madhyamik Vidyalaya, Bilwayee, Sultanpur, the appointment whereof is governed by the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees Service) Rules, 1984.

Om Prakash Mishra, the petitioner in both the writ petitions, and respondent No.1 herein, claimed appointment on the post of Clerk under the aforesaid Rules on the post having fallen vacant substantively due to retirement of one Tribhuvan Sharma, who attained the age of superannuation on 31.07.2013. He alleges that the Manager of the Committee wrote a letter dated 15.07.2013 seeking permission for proceeding to make appointment which intimation according to him was received in the Office of the District Basic Education Officer, Sultanpur, followed by a reminder but the District Basic Education Officer did not pay any heed to the same. It is alleged that since the work of the Institution was suffering, the Management proceeded to advertise the post in two daily newspapers: one in English Daily published from Lucknow namely, 'The Pioneer', and in a local daily namely, 'Trigut Dainik', Gonda. The application was moved by the respondent No.1 and all other candidates who were called for interview on 22.06.2014 about which information is alleged to have been given to the District Basic Education Officer to send his observer. The observer was, however, not sent and accordingly, Om Prakash Mishra was selected as the successful candidate by the Selection Committee whereupon, a resolution was passed on 01.07.2014 to appoint Om Prakash Mishra on the post in question. It is alleged that a letter of appointment followed whereupon the petitioner joined his duties and all these documents were dispatched to the Office of the District Basic Education Officer, Sultanpur for according approval and financial sanction for release of salary.

It has been alleged by Om Prakash Mishra in Writ Petition No.5174 (S/S) of 2015 that there was a ban imposed by the State Government, which was not in respect of private aided Institutions and which had already been lifted by the State Government, yet, no action was being taken hence the above petition was filed praying for a mandamus directing the District Basic Education Officer and other authorities to ensure payment of salary since the date of joining on the post in question.

The aforesaid petition has been resisted by the District Basic Education Officer who has filed a counter affidavit therein alleging that the appointment could not have been made on account of the ban and further neither any prior permission was taken nor any approval was sought before the selection and appointment was resorted to. In paragraph-17 of the said counter affidavit, it has been alleged that the letter and documents alleged to have been sent with regard to the selection and appointment of Om Prakash Mishra, were neither received in the Office nor was it within the knowledge of the Basic Education Officer. This fact in paragraph-17, in the rejoinder affidavit has been simply denied reiterating the facts in the writ petition.

It appears that the writ petition was filed in August, 2015. The contest emanated thereafter when the appellant Satish Chandra Dwivedi claimed compassionate appointment on compassionate basis. The said claim was made on the death of the mother of the appellant, Smt. Hiravati who died working as an Assistant Teacher in the same institution on 28.08.2014. This claim of compassionate appointment was forwarded to the Assistant Director of Education Basic by the District Basic Education Officer, Sultanpur vide letter dated 10.11.2015. The said authority heads a Committee, of which the Basic Education Officer is also a member, to scrutinize and recommend claims of compassionate appointment

On receipt of this letter, the Assistant Director of Education Basic, Faizabad, vide letter dated 20.01.2016 sought information from the District Basic Education Officer, Sultanpur. The issuance of the said letter is not disputed in the counter affidavit filed by the District Basic Education Officer nor is it the case of the appellant that no such letter was issued. A perusal of the contents of the said letter in the second paragraph reflects a categorical recital that the representation of Mr. Dwivedi has not been sent by the Management of the Institution and on the other hand, there was an information with regard to selection of Om Prakash Mishra on the post in question with regard to which he has also filed Writ Petition No.5174 (S/S) of 2015 which is subjudice and pending consideration before the High Court. The aforesaid letter recites the said fact as being mentioned in the letter of the District basic Education Officer itself dated 10.11.2015. It may be mentioned that the counter affidavit on behalf of the District Basic Education Officer in Writ Petition No.5174 (S/S) of 2015 was filed on 04.11.2015.

The letter dated 20.01.2016 also calls upon the District Basic Education Officer to re-submit the file for consideration of the claim of compassionate appointment of the appellant Satish Chandra Dwivedi including the details of the selection and appointment as claimed by Om Prakash Mishra; secondly, the justification for proceeding to make appointment on compassionate basis when the matter is still subjudice before the High Court; thirdly, as to whether Satish Chandra Dwivedi possessed the requisite qualification under the Rules and is eligible or not, fourthly, the status of any other post available in the district for being filled up on compassionate basis and; finally, the clear opinion and recommendation of the District Basic Education Officer.

On receiving the same it appears that the District Basic Education Officer on 10.02.2016 wrote back informing that no approval has been given to the appointment of Om Prakash Mishra and that since the matter is subjudice before the High Court, namely, Writ Petition No.5174 (S/S) of 2015, and a counter affidavit has been filed therein, then in that event it will not be appropriate to appoint anyone till final disposal of the said writ petition. The letter also indicates the availability of vacant posts in other aided institutions where applications for appointment on compassionate basis are pending consideration. It has also been stated that Om Prakash Mishra has submitted his certificates with regard to his eligibility but in the final concluding part the District Basic Education Officer stated that he would recommend the appointment of the appellant Satish Chandra Dwivedi on compassionate basis.

From the documents on record, it appears that the brother-in-law of Satish Chandra Dwivedi wrote an application addressed to the Minister for Basic Education Sri Ahmad Hasan for a direction to the Basic Shiksha Adhikari, Sultanpur to appoint Satish Chandra Dwivedi. The Minister concerned endorsed an order thereon that the District Basic Education Officer may do the needful.

It is thereafter that the District Basic Education Officer wrote another letter on 18.04.2016 to the Assistant Director stating therein that the appointment of Om Prakash Mishra had been made without following the procedure prescribed under the Rules which matter is pending consideration in Writ Petition No.5174 (S/S) of 2015. He, however, in the concluding part stated that keeping in view the pendency of the said unlawful appointment of Om Prakash Mishra before the High Court, the appointment on compassionate basis be offered to Satish Chandra Dwivedi for which necessary directions be issued in this regard.

Simultaneously, the Assistant Director of Education Basic, issued an order dated 18.04.2016 calling upon the Basic Education Officer to be present on 25.04.2016 for a decision in the matter by the concerned Regional Committee that was competent to deal with the matters of compassionate appointment. In response to the said letter the District Basic Education Officer gave his reply reiterating the earlier facts indicating that the proposal of appointment of Om Prakash Mishra was without following the Rules and, therefore, treating the said proposal of appointment to be unlawful, it may be considered as having disapproved and on the other hand, recommended for the appointment of the appellant on compassionate basis subject to the decision in Writ Petition No.5174 (S/S) of 2015.

The Committee dealing with matters of compassionate appointment headed by the Assistant Direction of Education Basic accepted the aforesaid proposal of the District Basic Education Officer and made a recommendation for appointment of Satish Chandra Dwivedi on compassionate basis on the post of Clerk in the institution subject to the decision in the writ petition. A consequential letter of appointment was issued by the District Basic Education Officer, Sultanpur on 2.06.2016 to the appellant. Both these orders came to be assailed by Om Prakash Mishra in the second Writ Petition No.13656 (S/S) of 2016 wherein, the learned Single Judge proceeded to pass the interim order dated 08.06.2016 impugned and quoted hereinabove.

By the said order, the status of Om Prakash Mishra the petitioner was directed not to be changed with a further observation that in the event it was necessary to give compassionate appointment to the appellant, the same shall be done by offering him a supernumerary post looking to his qualification.

Aggrieved, the compassionate appointee Sri Satish Chandra Dwivedi has filed this special appeal and we have heard Sri H.G.S. Parihar, learned Senior Counsel for the appellant, Dr L.P. Misra has appeared for the first respondent and the learned standing counsel is for the respondent No.2 and 3. Learned counsel for the Basic Education Department has been heard for the respondent No.4 to 7.

In view of the nature of the order that is proposed to be passed and the nature of controversy involved, we do not propose to issue notices to the respondent No.8 and 9 who would be represented through the Manager of the institution when the matter is heard again by the District Basic Education Officer, Sultanpur for a decision in the light of our direction given hereinafter.

In view of the aforesaid position emerging all the learned counsel for the respective parties have agreed for final disposal of the appeal and both the writ petitions simultaneously. Consequently, on their request the Court has summoned the records of both the writ petitions and they are also being disposed of simultaneously.

The facts having been traced out hereinabove there is no dispute that the respondent-petitioner Om Prakash Mishra is claiming an appointment which according to him was an outcome of a selection prior to the death of Smt. Hiravati, the mother of the appellant. The respondent claims that the Management had submitted all the papers that had been received in the Office of the District Basic Education Officer. This has been vehemently opposed by the learned counsel for the District Basic Education Officer and Sri H.G.S. Parihar learned counsel for the appellant contending that no such documents were ever received and the District Basic Education Officer in his counter affidavit as noted above, has clearly stated that neither any such letter was received nor the District Basic Education Officer had any knowledge about the same. We are unable to accept this contention of Sri Parihar in view of the clear recital in the letter of the Assistant Director Education Basic dated 20.01.2016 that was in response to the letter of the District Basic Education Officer dated 10.11.2015. The same categorically states about the fact of the documents having been sent relating to the selection of Om Prakash Mishra and also the filing of the Writ Petition No.5174 (S/S) of 2015. It may be mentioned that the writ petition had been filed in August, 2015 and the counter affidavit denying the receipt of the document had been filed on 04.11.2015. The District Basic Education Officer will have to therefore, verify this fact from his Office as per the contents of the letter dated 20.01.2016 about the receipt of such documents. A mere denial before this Court would, therefore, be not sufficient to believe that the documents had not been sent.

Sri Parihar learned counsel for the appellant has urged that if such documents have not been received, then the claim of the respondent that the District Basic Education Officer, will be deemed to have given approval as per Rule 15, would not be attracted. Dr. L.P. Misra on the other hand, submits that if the candidate is eligible, qualified and the procedure prescribed has been followed, then the inaction on the part of the District Basic Education Officer cannot defeat the right of a selected candidate to seek approval of his appointment. In our opinion, this issue will also have to be dealt with by the District Basic Education Officer for which we do not find any reasons in the recommendations made by the District Basic Education Officer to the Regional Level Committee that has decided the claim of the compassionate appointment of the appellant nor such consideration is available in the final order impugned in the writ petition No.13656 (S/S) of 2016.

Sri Parihar submits that the respondent cannot claim any appointment as against the compassionate claim of the appellant. This issue of approval or otherwise, in relation to the selection and appointment of the respondent Om Prakash Mishra by the Committee of Management of the institution had to be decided by the District Basic Education Officer who is the only competent authority in this regard under the 1984 Rules. The Regional Committee headed by the Assistant Direction of Education Basic, is not the authority for this purpose and which can deal with the scrutiny and recommendations of appointment based on compassionate claim only. Thus, in our opinion, it was the District Basic Education Officer who had to decide the claim of the respondent Om Prakash Mishra after giving an opportunity of hearing to him and after hearing the Committee of Management of the Institution. This does not appear to have been done and the entire matter was finalized by way of a communication between the Assistant Director of Education Basic and the District Basic Education Officer with the intervening letter of the Basic Education Minister as alleged without the participation of the respondent petitioner at any stage.

As a matter of fact, in our opinion, the Writ Petition No.5174 (S/S) of 2015 ought to have been straight away disposed of with a direction to the District Basic Education Officer to look into the proposal of the Management for appointment of the respondent and pass appropriate orders thereon. The writ petition was entertained and only notices were issued for exchange of affidavits and it was during the pendency of the said writ petition that the appellant set up his claim for compassionate appointment. The respondent authorities in our opinion were, therefore, right to that extent that any claim would be subject to outcome of the said writ petition but at the same time, it would be necessary to re-emphasize that the Assistant Director of Education Basic in the letter dated 20.01.2016 and the District Basic Education Officer, Sultanpur in the letter dated 11.02.2016 had themselves taken a view that it would not be appropriate to make any appointment till the matter is subjudice, but what appears is that the matter caught speed after the orders of the Basic Education Minister and then the District Basic Education Officer on 18.04.2016 and 28.04.2016 altered his stand for offering appointment to the appellant. This persuasive method of crystallizing an order in violation of principles of natural justice cannot be, therefore, appreciated in law. The District Basic Education Officer was obliged to take an independent decision uninfluenced by any recommendation on the claim of the respondent Om Prakash Mishra for which he was the only competent authority. The District Basic Education Officer, therefore, failed to decide the matter as per Rules and instead, entered into a correspondence culminating in the decision by the Regional Committee headed by the Assistant Director of Education Basic that was not competent to decide the consideration of the claim of the respondent Om Prakash Mishra. To that extent the decision of the Committee headed by the Regional Assistant Director Education exceeded its authority. It could have only made a recommendation in relation to the appellant and not otherwise, leaving it open to the District Basic Education Officer to take a decision finally. The District Basic Education Officer instead of taking decision after hearing the respondent petitioner, straightaway proceeded to comply with the decision of the Committee headed by the Assistant Director of Education Basic where the District Basic Education Officer had himself participated as one of the members. Consequently, the order of the District Basic Education Officer dated 02.06.2016 to that extent cannot be sustained and accordingly, the interim order passed by the learned Single Judge on 08.06.2016 does not require any interference on that count.

Dr. L.P. Misra has, however, vehemently urged that the appellant does not deserve any compassionate appointment inasmuch as, his father is still alive and who retired from the post of a Principal of an aided Institution and is receiving a very substantial amount as pension. He further submits that his family is also receiving family pension on account of death of the petitioner's mother and there is no element of distress, much less any financial distress so as to claim compassionate appointment. This is being seriously disputed by Sri Parihar contending that such parameters are not available under the compassionate appointment Rules in the present controversy and, therefore, this argument deserves to be rejected.

We are not expressing any opinion on the same leaving it open to the District Basic Education Officer to record his independent finding on such an issue including the eligibility and qualification of any candidate who may succeed upon the outcome of a fresh decision in the light of the directions given hereinafter.

However, since all the parties have agreed to the final disposal of the matter, it would be appropriate to issue an equitable direction so as to protect the interest of both the parties as well as the Management of the Institution.

On a consideration of the entire material on record and the discussion hereinabove, we issue a direction to the District Basic Education Officer, Sultanpur to hear out the respondent Om Prakash Mishra and the Management of Sri Patti Devi Uchchatar Madhyamik Vidyalay before proceeding to pass an order on the claim and the selection and appointment of respondent Om Prakash Mishra within a period of eight weeks from today. Thereafter the issue relating to the claim if any surviving of the appellant would also be assessed in accordance with law.

The appeal and both the writ petitions stand finally disposed off accordingly.

Order Date :- 23.6.2016

Rajneesh)

[Shamsher Bahadur Singh,J.] [Amreshwar Pratap Sahi,J.]