Sanjay Kumar vs State Of U.P. And 2 Others
2023 Latest Caselaw 22131 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:166935 
 
Court No. - 36
 

 
Case :- WRIT - A No. - 13178 of 2023
 

 
Petitioner :- Sanjay Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Kumar Srivastava,Ved Prakash
 
Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh Kachhawah
 

 
Hon'ble Manjive Shukla,J.

1. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the Respondent No.1 as well as Sri Bhanu Pratap Singh Kachhawah, learned counsel appearing for the Respondents No.1, 2 and 3.

2. Facts of the case in brief are that petitioner vide appointment order dated 20.04.2000 was appointed on a Class-IV post on compassionate ground on consolidated pay of Rs. 2,550/- per month. Petitioner pursuant to his appointment joined on Class-IV post in Uccha Prathmik Vidyalaya Chintapur Sheetalpur, District Etah.

3. Petitioner pursuant to his appointment is continuously discharging his duties and is working in the aforesaid school run by U.P. Basic Education Board.

4. Petitioner filed Writ-A No. 2016 of 2021 whereby he prayed that a direction be issued by this Court for payment of salary to the petitioner in regular pay scale from the date of his initial appointment. The aforesaid writ petition was finally disposed of by this Court vide order dated 9.02.2021 whereby direction was issued to District Basic Education Officer, Etah to consider and decide the case of the petitioner in light of the law laid down by this Court vide judgment and order dated 10.08.2011 passed in Writ-A No. 12190 of 2005 (Smt. Pushpa Devi vs. State of U.P.).

5. In compliance of the aforesaid order dated 09.02.2021 passed by this Court in Writ-A No. 2016 of 2021, case of the petitioner has been considered and rejected by District Basic Education Officer, Etah by passing order dated 24.06.2023.

6. District Basic Education Officer, Etah in his order dated 24.06.2023 has recorded finding that since petitioner's appointment has been made pursuant to Government Order dated 20.04.2000 wherein provision has been made for making compassionate appointment only on consolidated pay, therefore petitioner cannot be paid salary in regular pay scale from the date of his initial appointment.

7. Learned counsel appearing for the petitioner has invited attention of this Court towards order dated 26.09.2022 passed in Writ-A No.14085 of 2020 wherein it has been categorically held that compassionate appointment from the date of initial appointment has to be regular and salary is to be paid in regular pay scale.

8. Judgment and order dated 26.09.2022 passed by this Court in Writ-A No.14085 of 2022 is extracted as under:

"Heard Sri Ved Prakash, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Shri Sanjay Kumar Srivastava, learned counsel for respondent Nos. 2 & 3 and perused the record.

By means of present writ petition, petitioner has prayed to issue a writ of mandamus directing the respondent No. 3 to consider the petitioner as regular Class IV employee on the date of his appointment and grant due consequential benefit by passing appropriate order.

In nutshell the case of the petitioner is that petitioner's father Raj Kumar who was working on the post of Assistant Teacher in Senior Basic School, Mandhata, Block Marahara, District Etah died-in-harness. The petitioner moved an application for compassionate appointment under the Dying in Harness Rules.

By order dated 21.8.2009 passed by the competent authority, petitioner was appointed on class IV post on compassionate grounds on fixed pay scale. After joining his service the petitioner raised grievance through representation dated 24.9.2009 that there was no justification or reason to appoint him on consolidated salary as he is entitled for regular appointment/ salary. The petitioner lastly submitted representation before the District Basic Education Officer, Etha on 22.12.2021, but no action has been taken till date.

Learned counsel for the petitioner while challenging the impugned order submits that petitioner's appointment on fixed pay scale is unwarranted and contrary to law as laid down by Division Bench of this Court in the case of Ravi Karan Singh Vs. State of U.P. And others ( 1999) 3 UPLBEC 2263, and the Government order dated 30.1.1996 is not applicable to the case of the petitioner so he is entitled for regular appointment/salary on the post in question.

Learned counsel for the petitioner has further submitted that the Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad, vide letter dated 3.12.2001 addressed to all the Regional Assistant Director of Education (Basic), Saharanpur/Meerut Region has issued letter with regard to appointment under dying-in-harness which is as under:-

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Sri Sanjay Kumar Srivastava, learned counsel appearing on behalf of the respondents in opposition to the writ petition submits that the Government Order dated 30.1.1996 provides that the employees who are appointed in rural as well as in urban area can only be absorbed when the post will become vacant.

The Government order dated 30.1.1996 specifically provides that the regular pay scale will be provided from the date of absorption and not from the date of initial appointment.

The Government Order dated 30.1.1996 is not applicable to case of the persons who were appointed on compassionate ground under Dying in Harness Rules, so the action on the part of respondent No. 3 in view of Government Order dated 30.1.1996 is void ab initio and without jurisdiction. Compassionate appointment cannot be given on consolidated salary as the same is of permanent nature as held by by a Division Bench of this Court in the case of Ravi Karan Singh ( supra) which is quoted herein below:-

"This petition has come up before us on a reference made by the learned Single Judge by his order dated 19.12.1997. The point involved is very simple, that is, whether an appointment under the Dying in Harness Rules is a permanent appointment or temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appoint vide Budhi Sagar Dubey v. D.O.I.S., (1993) 1 UPLBEC 197; Gulab Yadav v. State of U.P. and others, (1991) 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. & Others. (1991) 1 UPLBEC 427. The learned Single Judge who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.

In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rule because such appointment is intended to provide immediate relief to the family on the sudden death of the bread-earner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments.

The petition is disposed of accordingly."

In view of the admitted facts as attracted to the case of the petitioner as well as the law laid down by the Division Bench of this Court in the case of Ravi Karan Singh (supra), the appointment of the petitioner on fixed salary is not sustained in the eyes of law.

For the foregoing reasons, the writ petition is allowed. The respondent no.3 is directed to re-examine the matter afresh in the light of the observations made herein above, expeditiously, preferably within a period of two months from the date of service of certified copy of this order."

9. Learned counsel appearing for the petitioner has argued that in view of the aforesaid judgment passed by this Court, now the issue involved in this writ petition is no more res integra and, therefore the present writ petition is liable to be allowed and order impugned in the writ petition is liable to be set-aside.

10. When confronted with the aforesaid order dated 26.09.2022 passed by this Court in Writ-A No.14085 of 2022, Sri Bhanu Pratap Singh Kachhawah, learned counsel appearing for the Respondents No.1, 2 and 3 though initially tried to defend the order passed by District Basic Education Officer, Etah but later on, he could not justify the order impugned in the present writ petition.

11. Learned counsel appearing for the Respondents No.1, 2 and 3 has further submitted that the order impugned in this writ petition may be set-aside and the matter may be remanded to District Basic Education Officer, Etah to reconsider the entire issue and pass fresh order.

12. In view of the aforesaid submissions made by learned counsels appearing for the parties, this Writ Petition is allowed. Order dated 24.06.2023 is quashed and matter is remanded to District Basic Education Officer, Etah to pass fresh order in light of the aforesaid judgment and order dated 26.09.2022 passed in Writ-A No.14085 of 2022 expeditiously preferably within a period of two months from the date of production of certified copy of this order.

Order Date :- 17.8.2023

A. Mandhani