District Basic Edu. Officer, ... vs Bhanmati And Another
2022 Latest Caselaw 253 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- CIVIL MISC REVIEW APPLICATION No. - 11 of 2022
 

 
Applicant :- District Basic Edu. Officer, Ambedkar Nagar (In Wria 3679 Of 2012)
 
Opposite Party :- Bhanmati And Another
 
Counsel for Applicant :- Neeraj Chaurasiya
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Sri Neeraj Chaurasiya, learned counsel for review-applicant/District Basic Education Officer, Ambedkar Nagar and Sri O.P.M. Tripathi, learned counsel representing the opposite party (petitioner in the writ petition) and learned counsel representing the State authorities.

By means of this application, a limited review of the judgment and order dated 23.09.2020 passed by this Court in Writ Petition No.3679 (S/S) of 2012 has been sought and it has been prayed that in the said order only this much may be provided that appointment of the petitioner/Bhanmati shall be considered by the District Basic Education Officer keeping in view the provisions contained in the circular dated 08.11.2000 issued by the Secretary, Basic Shiksha Parishad to all the District Education Officers in the State of Uttar Pradesh.

The issue which was raised in the writ petition related to compassionate appointment of the petitioner-Bhanmati which she was claiming for the reason that her mother Smt. Maktula had died while working as Class IV employee in Poorva Madhyamik Vidyalaya, Bandipur, Bhiyaon, District Ambedkar Nagar. Initially the claim of the petitioner for appointment on compassionate grounds was denied giving the reason that married daughter of an employee, who dies-in-harness, was not entitled to compassionate appointment as she was not covered within the expression "family" occurring in U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974.

However, this question was decided by a Division Bench of this Court in the case of Neha Srivastava Vs. State of U.P. and another in Special Appeal (D) No.863 of 2015, which has been affirmed by Hon'ble Supreme Court by means of order dated 23.07.2019 whereby Special Leave Petition preferred against the judgment of the Division Bench in the case of Neha Srivastava (supra) has been dismissed.

The Court accordingly allowed the writ petition and directed the District Basic Education Officer concerned to consider the claim of the petitioner for compassionate appointment treating her to be eligible as married daughter for such appointment and also treating the mother of the petitioner as a regular employee with effect from 01.01.1983. The Court while deciding the writ petition on 23.09.2020 further directed that the said consideration shall be made by the District Basic Education Officer within a period of three months. The aforesaid directions were issued by the Court while deciding the writ petition by means of judgment and order dated 23.09.2020 keeping in view the fact that it is the District Basic Education Officer who under the Rules is the appropriate authority for making compassionate appointment.

Learned counsel representing the review-applicant has taken the Court to a circular dated 08.11.2020 issued by the Secretary, Basic Education Board, which is addressed to all District Basic Education Officers, subject matter of which relates to compassionate appointment where application for such appointment is made after expiry of period of five years from the date of death of teaching/non teaching staff. In the said circular, it has also been stated that even where applications are made for compassionate appointment within five years from the date of death of the deceased employee, it should be examined as to why in such cases appointment could not be made at the relevant point of time and as to whether this period is falling beyond five years from the date of death of the employee. It further provides that in such a situation after such examination the matter should be brought to the notice of the Basic Shiksha Parishad and further action should be taken on receiving instructions from the Basic Shiksha Parishad.

In my considered opinion, the said provision contained in the said Circular dated 08.11.2020 is only procedural in nature, which does not determine or take away or in any manner dilute the right of the petitioner to seek compassionate appointment which stands adjudged by means of the judgment and order dated 23.09.2020. As a matter of fact, the District Basic Education Officer since was directed to consider the appointment of the petitioner on compassionate grounds, he ought to have brought this matter to the notice of the Secretary, Basic Education Board, informing him the reasons as to why within five years of the death of the deceased employee appointment could not be made.

As already observed above, the appointment could not be made within five years for the reason that the Department of Basic Education Board was having a misconception that married daughter of a deceased employee is not entitled to seek compassionate appointment which legal issue now stands settled by the judgment of the Hon'ble Supreme Court in the case of Neha Srivastava (supra), as referred to herein above. There does not appear to be any reason except the misconception prevailing in the mind of Basic Education Board during pendency of Writ Petition No.3679 (S/S) of 2012.

The purpose of issuing the circular dated 08.11.2000 appears to have a check, control and supervision over the powers of the District Basic Education Officer making appointment on compassionate grounds beyond five years from the date of death of the deceased employee. The said circular thus cannot be taken aid of to defeat the substantive right of the petitioner of being appointed on compassionate grounds, which stood crystallized on the date of death of her mother. However, she had continuously been denied compassionate appointment without there being any plausible reason for the same. In any case, once the judgment of Hon'ble Supreme Court in the case of Neha Srivastava (supra) came to the notice of the Department, immediate action ought to have ensued on the prayer of the petitioner for appointment on compassionate grounds. As observed above, apprising the Secretary, Basic Education Board of the matter in terms of the circular dated 08.11.2000 is only the procedural in nature and I do not see that the judgment and order dated 23.09.2020 requires any review.

The petition seeking review is, thus, misconceived which is hereby dismissed.

It has been informed by learned counsel for review applicant that in terms of the circular dated 08.11.2000 the matter of appointment on compassionate grounds of the petitioner-Bhanmati has been intimated to the Secretary, Basic Education Board. However, despite sufficient time having elapsed, intimation sent by the District Basic Education Officer has not been responded to by the Secretary, Basic Education Board.

As already observed above, the circular dated 08.11.2000 is only procedural in nature. The Secretary, Basic Education Board is as much bound by the judgment and order dated 23.09.2020 passed by this Court in Writ Petition No.7369 (S/S) of 2012 as any other authority. The Secretary, Basic Education Board, in fact, cannot be permitted to hide himself behind non available plea to him that he was not a party to the writ petition. There is no dispute that the petitioner had made an application within five years from the date of death of her mother, the deceased employee, in fact the deceased employee i.e. the mother of the petitioner while working in the school concerned, died on 05.09.2008 and the application seeking compassionate appointment was made on 21.01.2009.

It is strange to notice that despite intimation having been sent to the Secretary, Basic Education Board on 05.08.2021, 02.11.2021 and 06.01.2022, till date no response has been made by the the Secretary and the judgment and order dated 23.09.2020 still remains uncomplied with.

In these circumstances, while observing that the judgment and order dated 23.09.2020 does not warrant any interference in this review petition, this Court expects that the Secretary, Basic Education Board shall respond to the intimation sent to him by the Basic Education Officer for appointment of the petitioner on compassionate grounds forthwith, say, within a maximum period of two weeks from today.

This order shall be communicated immediately to the Secretary, Basic Education Board by the learned counsel representing the Basic Shiksha Adhikari.

Order Date :- 1.4.2022

Renu/-