Suni Upadhyay vs State Of U.P. And 2 Others
2022 Latest Caselaw 5782 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- WRIT - A No. - 3162 of 2022
 
Petitioner :- Suni Upadhyay
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J. 

Heard learned counsel for petitioner and learned State counsel appearing on behalf of respondents no.1 and 2.

In view of order being proposed to be passed, notices to opposite party no.3 shall stand dispensed with.

Although, earlier vide order dated 21.04.2022, time for counter affidavit had been given to learned State counsel but no such counter affidavit has been filed till date, the matter pertains to compassionate appointment and from a perusal of the impugned order as well as the material available on record, only applicability of the relevant provisions and judgments of this Court are required to be seen. As such since counter affidavit has not yet been filed despite time having been granted and in view of the fact that there are no disputed questions of fact involved, the present petition is being decided at the admission stage itself with the consent of learned counsel for parties dispensing with the earlier direction for filing of counter affidavit.

Petition has been filed assailing the order dated 09.02.2022 passed by District Inspector of Schools, Firozabad whereby petitioner's representation for compassionate appointment in place of his deceased father has been rejected primarily on account of the fact that the application was made after five years from the date of death of his father.

Learned counsel for petitioner submits that petitioner's father Sri Braj Kishore Upadhyay was employed as Assistant Teacher in Pali Inter College, Shikohabad, District Firozabad and expired on 18.06.2008 while in service leaving behind his widow, three sons and two daughters. It is submitted that petitioner is one of the son of the deceased. Petitioner's elder brother, Anurag was already married and residing separate with his wife and therefore an application for compassionate appointment was filed by widow of deceased in favour of another son Hemant Upadhyay who unfortunately also passed away on 01.02.2020 while the application for compassionate appointment was pending.

It is submitted that at the time of his father's demise, petitioner was a minor aged only about seven years with his date of birth being 07.07.2001 and therefore a fresh application for compassionate appointment of the petitioner was filed by his mother in his favour on 28.09.2020 after the petitioner had attained majority.

It is submitted that the aforesaid application has been rejected only on the ground that the District Committee empowered to recommend compassionate appointment does not have any jurisdiction in the matter since the application was filed beyond a period of five years from the date of demise of petitioner's father. It is submitted that in such a case, there was no occasion for the District Inspector of Schools to have rejected the application since as per the Rules, it was required to be forwarded to the State which was the only authority competent to decide with regard to relaxation for entertaining application for compassionate appointment filed beyond a period of five years from the date of death of Government Servant concerned.

Learned State Counsel has refuted the submissions advanced by learned counsel for petitioner with the submission that the application of petitioner was highly belated considering the fact that the date of his father death was in the year 2008 whereas the application for compassionate appointment was filed only on 28.09.2020. It is submitted that even otherwise, earlier application for compassionate appointment had already been filed by the petitioner's elder brother which was under consideration and as such no special privilege could be accorded to the petitioner on account of the said fact.

It is further submitted that as per Rules and extant notifications of the State Government, the District Committee constituted for purposes of recommending cases for compassionate appointment is not empowered to entertain any application which has been filed beyond the period of five years from the date of demise of Government Servant concerned.

Upon consideration of submissions advanced by learned counsel for parties and perusal of material available on record, it is evident that the current dispute comes within purview of Regulation 103 of Regulations framed under the Intermediate Education Act, 1921 which is as follows:-

"[103. ?? ?????????? ??? ?? ?? ???? ??? ?? ???? ??? ?? ???? ???? ??????? ??????? ?????? ??????? ?????? ?? ??????? ?? ??????????? ???????? ???? ?? ???? ???????? ?? ?? ????? ????????? ?? ?????? ??????? ???? ??? ??, ???? ??? ??? ?????? ?? ????, ?? ???? ??????? ?? ?? ????? ??, ?? 18 ???? ?? ?? ??? ?? ? ??, ?????????? ?????? ?? ?????? ??? ??????? ?? ?? ??? ??? ?? ???? ??????????? ?? ?? ??? ?? ?? ?? ???? ????? ???????? ??????? ????????? ????????, ??? ??? ??, ???? ?? ?? ???????? ?? ???? ?????? ??????? ??. ??????? ???? ?? ???? ??:

??????????- ?? ?????? ?? ??????????? '??????? ?? ?????' ?? ???????? ??? ????????: ????? / ?????, ?????, ???????? ?? ????? ?????? ?? ?????

???????- ?? ?????? ?? ?????? 104 ?? 107 ?? ?? ??? ??????????? ?? ????? ??? ???? ????? ????? ?????? 1 ?????, 1981 ?? ?? ???? ??????? ??? ???]"

A perusal of the aforesaid Regulation 103 makes it evident that petitioner is entitled to be considered for compassionate appointment in terms thereof. It is also relevant to notice that there is no time limitation for submitting an application for consideration for compassionate appointment. The impugned order also does not indicate any provisions of law under which petitioner's representation has been rejected on the ground of being beyond limitation period of five years from the date of demise of his father.

It can also be seen from the impugned order that on one hand the Inspector has indicated that an application filed for compassionate appointment beyond the limitation period of five years is to be considered only by the State Government, he has then proceeded to reject petitioner's application instead of forwarding it to the State Government.

Learned State counsel also could not indicate any provision of law under the Intermediate Education Act or Regulations framed thereunder whereby an application for compassionate appointment is required to be submitted within a period of five years.

Nonetheless even if the respondents were of the opinion that delay in filing the application for compassionate appointment can be considered only by the State Government, it was incumbent upon them to have forwarded petitioner's application to the State Government.

In view of aforesaid, the impugned order 09.02.2022 passed by District Inspector of Schools, Firozabad is hereby quashed by issuance of writ in the nature of certiorari. A further writ in the nature of mandamus is issued to respondent no.2 i.e. District Inspector of Schools, Firozabad to reconsider petitioner's application for compassionate appointment in case there is no other provision for a delay application to be considered by the State Government. In case of any such provision, the said respondent shall forward the application to the Respondent no.1 i.e Principal Secretary, (Secondary Education), Government of U.P. Lucknow. Final decision with regard to petitioner's application shall be taken by the concerned respondent within a period of eight weeks from the date a copy of this order shall produce or forward to the concerned authority.

Consequently, the writ petition succeeds and is allowed. Parties shall bear their own costs.

Order Date :- 4.7.2022

Subodh/-