Akhilesh Kumar Singh vs State Of U.P. Thru Secy. And 4 ...
2017 Latest Caselaw 4978 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 26
 

 
Case :- WRIT - A No. - 13987 of 2014
 

 
Petitioner :- Akhilesh Kumar Singh
 
Respondent :- State Of U.P. Thru Secy. And 4 Others
 
Counsel for Petitioner :- Dr. G.S.D. Mishra, Rajesh Yadav, Sunil Yadav
 
Counsel for Respondent :- C.S.C., Jayram Pandey, Ramesh Chandra Upadhyay
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard Mr Sunil Yadav along Mr Rajesh Yadav, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. This writ petition has been filed praying for quashing of the order dated 01.11.2013 passed by the Regional Level Committee communicated through Assistant Director Basic Education,Vth Region, Varanasi,respondent No. 2 herein and the order dated 02.11.2013 passed by the District Basic Education Officer, Mirzapur, respondent No. 3 herein. A further prayer has been made for issuance of writ in the nature of mandamus commanding respondent No. 4, Director of Education Basic, Allahabad and respondent No. 5, Committee of Management, Aryavrat Madhyamik Vidhyalaya Sindhaura, Mirzapur to appoint the petitioner as Assistant Teacher in the said Institution.

3. The brief facts necessary for decision of this writ petition are as follows:

4. Aryavrat Madhyamik Vidhyalay is an aided Institution under the Payment of Salaries Act, reimbursement of teaching and non-teaching employees' salaries and other expenses are being made from the public exchequer. The petitioner's father late Bans Bahadur Singh was Assistant Teacher in the said Institution and died in harness on 29.12.2011. The Committee of Management of the Institution passed as Resolution on 26.12.2012 for engagement of the petitioner as Assistant Teacher in the Institution. The petitioner filed application on 04.01.2013 along with affidavit of other family members given 'no objection' to his appointment. The petitioner also filed certificates of his educational qualification in his application to the respondent No. 3.

5. Since the matter was not being considered expeditiously, the petitioner filed Writ Petition No. 26841 of 2013, which was disposed of by this Court on 14.05.2013 with a directions to the authorities to consider the grievance of the petitioner and pass appropriate order thereon in accordance with law within a period of six weeks from the production of certified copy of the order. When the order passed by this Court was complied with, the petitioner filed a Contempt Application (Civil) No.3547 of 2013, which was disposed of by this Court on 05.09.2013 with a direction to the Basic Education Officer, Mirzapur to take a decision in the matter in accordance with law within a period of two months positively.

6. It was thereafter that the Basic Education Officer referred the matter to the Assistant Director Basic, who placed the case of the petitioner before the Regional Level Committee, which passed the order dated 01.11.2013 for appointment of the petitioner as Class IV employee in the vacancy available in Devta Prasad Junior High School, Dramandganj, Mirzapur. In compliance of the decision taken by the Regional Level Committee, the District Basic Education Officer, Mirzapur issued the order dated 02.11.2013 to respondent No.5 for issuance necessary appointment letter to the petitioner.

7. The petitioner has challenged the aforesaid two orders on the ground that there are two Government Orders dated 31.01.1997 and 22.07.2000 issued by the Government Basic Education Department, which provide for engagement of the dependents of the deceased teaching and non-teaching staff on the basis of their educational qualification in the Institution, in which the deceased teacher/ non-teaching employee was working and only when a vacancy was unavailable, then dependents of the employee concerned would be considered for an appointment as Teaching/Non-teaching staff, as the case may be, in any other Institution.

8. It is the case of the petitioner that the petitioner is a graduate and is also B.Ed. qualified and has passed Teaching Eligibility Test and entitlted for appointment as Teacher in Junior High School, but without any reason, the Regional Level Committee as decided that the petitioner be given appointment on Class IV post in a different Institution, although in the same District.

9. Mr Sunil Yadav, learned counsel for the petitioner has pointed out from the Government Orders referred to herein-above filed as Annexure- 13 to the writ petition that it was not open for the Regional Level Committee to engage the petitioner in any other Institution or to disregard the educational qualifications of the petitioner.

10. Learned counsel for the petitioner has referred to a supplementary affidavit filed in July, 2017, wherein under the Right to Information Act, the petitioner has obtained information from the office of the Basic Education Officer that the educational qualifications required for Assistant Teacher in a Junior High School is B.Ed. and T.E.T. and from the Managers Return sent by the respondent No. 5 to the office of Basic Education Officer for the year 2017, that against six sanctioned posts, four Assistant Teachers are working and two post of Assistant Teacher are lying vacant in the Institution.

11. Learned Standing Counsel for the State respondents has referred to the averments made in the counter affidavit, which are to the effect that the Regional Level Committee had considered the petitioner's qualifications in its meeting held on 01.11.2013 before taking a decision for his appointment as class IV employee in Devta Prasad Junior High School, Dramandganj, Mirzapur. It has also been averred on the basis of paragraph 6 of the counter affidavit that the Manager of Devta Prasad Junior High School had informed the Basic Education Officer, through his letter dated 12.12.2013 that the petitioner had refused to receive the appointment letter issued to him in pursuance of the order passed by the Basic Education Officer dated 02.11.2013, and therefore, the Basic Education Officer had directed to send the copy of the appointment letter through Registered Post. The Manager of the Devta Prasad Junior High School had thereafter sent the appointment letter through Registered Post on 16.01.2014 to the petitioner, but the petitioner did not join the Institution in question and instead filed the aforesaid writ petition in February, 2014. The allegation of demanding illegal gratification for appointment as Teacher in the Institution Aryavrat Madhyamik Vidhyalay Sindhaura, Mirzapur has been specifically denied.

12. In the rejoinder affidavit, the petitioner has not denied that the had refused to join in the Devta Prasad Junior High School as a class IV employee and has reiterated the averments made in the writ petition and the allegations that the then Assistant Director Basic and the then Basic Education Officer had both asked for gratification for appointment of petitioner as Assistant Teacher.

13. In the counter affidavit filed on behalf of respondent No. 5, by Mr Ramesh Chandra Upadhyay, respondent no. 5 has supported the case of the petitioner. However, Mr Ramesh Chandra Upadhyay has not appeared to assist this Court.

14. I have carefully considered the pleadings in the writ petition and the affidavits filed and the arguments made by the learned counsel for the petitioner and the learned Standing Counsel. This Court is aware of the law settled by the Hon'ble Supreme Court in Director of Education Secondary vs. Pushpendra Kumar and others, 1998 (5) SCC 192, wherein the Hon'ble Supreme Court was considering Regulations 101 to 107 of the Regulations attached to Intermediate Education Act, 1921, which contained almost similar provisions directing that the dependent of a deceased teacher or non-teaching employee should be given appointment on the basis of educational qualifications proposed by him. The Hon'ble Supreme Court had held that the purpose of giving compassionate appointment is only to help the family of the deceased employee, who died all of a sudden to tide over the financial difficulties faced by them. The provision of compassionate appointment should not unduly interfere with the right of the other persons, who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee. The Court held that there should be a balance between open market candidate applying through regular procedure vis-a-vis compassionate appointee and it further held that the compassionate appointment cannot be insisted upon for any particular post. The Hon'ble Supreme Court observed in paragraph 10 of the aforecited judgment as under:

"The construction placed by the High Court on the Regulations governing appointment of dependents of teaching/non-teaching staff in non-government recognised aided institutions dying in harness would result in all the vacancies in class III posts in non-government recognised aided institutions which are required to be filled by direct recruitment being made available to the dependents of persons employed on the teaching/non-teaching staff of such institutions who die in harness and the right of other persons who are eligible for appointment to seek employment on those posts by direct recruitment would be completely excluded. On such a construction the said provision in the Regulations would be open to challenge on the ground of being violative of the right to equality in the matter of employment inasmuch as other persons who are eligible for appointment and who may be more meritorious than the dependents of deceased employees would be deprived of their right of being considered for such appointment under the rules. A construction which leads to such a result has to be avoided. Having regard to the fact that there are large number of posts falling in class IV and appointment on these posts is made by direct recruitment, the object underlying the provision for giving employment to a dependent of a person employed on teaching/non-teaching staff who dies in harness would be achieved if the said provision in the Regulations is construed to mean that in the matter of appointment of a dependent of teaching/non-teaching staff in a non-Government recognised aided institution dying in harness if a post in class III is not available in the institution in which the deceased employee was employed or in any other institution in the district, the dependent would be appointed on a class IV post in the institution in which the deceased employee was employed and for that purpose a supernumerary post in class IV may be created. If the Regulations are thus construed the respondents- applicants could only be appointed on a class IV post and they could not seek a direction for being appointed on a class III post and for creation of supernumerary post in class III for that purpose. We are, therefore, unable to uphold the direction given by the High Court in the impugned judgments whereby the respondents have been directed to be appointed on a class III post if they possess the requisite qualifications for such a post and in case no Class III post is available then a supernumerary class III post be created for the purpose of such appointment."

15. Hon'ble Supreme Court for deciding the controversy in interpretation of the Regulations referred to an earlier judgment by it in the case of Umesh Kumar Nagpal vs State of Haryana 1994 (4) SCC 136 and the judgment in Sushma Gosain and others vs Union of India and others, 1998 (4) SCC 468.

16. The law as laid down by the Supreme Court in the case of Director of Secondary Education (supra) has been reiterated in State of U.P. vs Pankaj Kumar Vishnoi, 2013 (11) SCC 178, wherein reliance was placed on an earlier decision in I.G. (Karmik) vs Prahalad Mani Tripathi, 2007 (6) SCC 162. The Supreme Court was considering the claim of the dependent of deceased police personnel for appointment as Sub-Inspectors on the ground of having possessed requisite Educational qualifications, and held appointment on the compassionate grounds is given only for meeting the immediate hardship, which is faced by the family by reason of the death of the bread-winner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to proide for endless compassion. The Supreme Court observed that in the absence of meeting the required physical efficiency standards, if appointment was given as Constable, the dependent of deceased employee should have accepted the same, looking into hardship faced by the family instead of insisting for appointment as Sub-Inspector in the U.P.Police.

17. The law having been settled by the Supreme Court has been followed in a Full Bench decision of this Court in the case of Shiv Kumar Dubey vs State of U.P. and others, 2014 (2) ADJ 312, wherein this Court has observed in paragraph 29 thus:

"29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;

(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;

(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;

(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;

(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;

(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;

(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family."

18. In view of what has been said herein above, this writ petition lacks merit and is dismissed as such.

19. No order as to costs.

Order date: 05.10.2017

Sazia