Allahabad High Court
Amit Tiwari vs State Of U.P. And 3 Others on 22 July, 2021
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- WRIT - A No. - 6703 of 2021
Petitioner :- Amit Tiwari
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ramesh Chandra Dwivedi
Counsel for Respondent :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
Petitioner claims grant of compassionate appointment in place of his father late Gayanendra Kumar Tiwari, who died-in-harness on 13.03.2018. Arising therefrom, the brother of the petitioner Nitesh Kumar Tiwari earlier applied for compassionate appointment. During the pendency of that application, the said Nitesh Kumar Tiwari also scummed to the pandemic Covid-19. In such circumstances, the petitioner has filed an application for grant of compassionate appointment.
It has also been brought on record that the petitioner's father Gayanendra Kumar Tiwari had been regularised in service on 19.07.2007. Later notice dated 02.01.2017 was issued by the Director of Education (Madhyamik) U.P. proceeding under Section 16E(10) of the U.P. Intermediate Education Act, 1921 seeking to cancel the regularisation of the services of the father of the petitioner.
Submission of learned counsel for the petitioner is that the father of the petitioner challenged the proceedings by means of Writ Petition No.9532 of 2017 therein, on 03.03.2017 the below quoted interim order was granted.
"It is urged by learned counsel for the petitioner that the impugned notice dated 2.1.2017, whereby the Director of Education (Madhyamik) U.P. has called for comments from the Joint Director of Education, Deoria for deciding the validity of the appointment of the petitioner in purported exercise of power under Section 16E (10) of the U.P. Intermediate Education Act, 1921, is wholly without jurisdiction, inasmuch as after the enforcement of the U.P. Secondary Education Services Selection Board Act, 1982, the power to go into the validity of appointment can only be exercised by the Board. Reliance has been placed on a Division Bench judgment of this Court in Special Appeal No. 476 of 2014, Committee of Management Shri Maharshi Balmeek Inter College Vs. Rajesh Kumar Singh and Others 2014(3) ESC 1778 (All). It has further been pointed out that although a reference has been made to a Larger Bench of this Court for consideration of the said question but the Larger Bench has not yet answered the issue. It is further submitted that in the year 2007, on the basis of the same complaint, the District Inspector of Schools had passed an order on 19.7.2007 for appointment of the petitioner being examined in proceedings under Section 16E (10) of the Act. However for next 10 years, no action was taken and now in the year 2017, the impugned notice has been issued, which is wholly illegal. It is further pointed out that the service of the petitioner was regularized way back in the year 2001 under the provisions of Section 33-B of the Act. The Director is not competent to go into the correctness of the said order at this distance of time.
The matter requires consideration.
Notice on behalf of respondents 1 to 5 has been accepted by learned standing counsel.
Issue notice to the sixth respondent fixing a date in the second week of April 2017.
All the respondents are directed to file counter affidavit by the next date.
Having regard to the facts of the case and the submissions made, further proceedings in pursuance of impugned notice dated 2.1.2017 shall remain stayed till the next date of listing."
The aforesaid order remained operative till the death of father of the petitioner Gayanendra Kumar Tiwari. On his death the writ petition abated. In any case, proceedings under Section 16E(10) of the Act were not concluded, therefore for all practical purpose, the father of the petitioner died in regular service. Consequently, the petitioner remains entitled to benefit of compassionate appointment.
The above fact has not been disputed by the learned counsel for the respondents.
Consequently, the petitioner would remain entitled to be considered for compassionate appointment.
In view of above, no useful purpose would be served in keeping the present petition pending or calling for a counter affidavit, at this stage as claim of compassionate appointment has to be considered by the respondent no.2.
Accordingly, the writ petition is disposed of with the direction that in case, the petitioner places a copy of this order before the respondent no.2 within a period of two weeks from today, the respondent no.2 shall ensure to process the claim of the petitioner for grant of compassionate appointment strictly in accordance with law, as expeditiously as possible, preferably within a period of three months from the date of production of a copy of this order.
Order Date :- 22.7.2021
A.Kr.
