Allahabad High Court
District Basic Education Officer ... vs Ram Pal Singh And 20 Others on 8 January, 2025
Bench: Siddhartha Varma, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:3621-DB
Court No. - 39
Case :- SPECIAL APPEAL No. - 10 of 2025
Appellant :- District Basic Education Officer Moradabad And Another
Respondent :- Ram Pal Singh And 20 Others
Counsel for Appellant :- Akanksha Sharma
Counsel for Respondent :- C.S.C.,Siddharth Khare
Hon'ble Siddhartha Varma,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. The petitioners- respondents, who are 19 in numbers had filed a writ petition being Writ-A No. 32936 of 2016 with the following prayers:-
"(a) a writ, order or direction in the nature of certiorari quashing the orders dated 18.6.16 passed by Basic Shiksha Adhikari, Moradabad (Annexure Nos.13A to 13R);
(b) a writ, order or direction of a suitable nature commanding the respondents not to interfere in the functioning of the petitioners as Class IV employees and to pay the petitioners their regular monthly salary in the regular pay scale regulary every month including all arrears of salary;"
2. Briefly stated the facts of the case are that the petitioners-respondents were offered compassionate appointments between 3rd November, 1997 and 1st July, 2000. Petitioners Vijendra Kumar and Pushpa Devi, who were petitioner nos.6 and 10 were offered appointments on 11th February, 2003 and on 19th February, 2002 respectively. It may be mentioned that all these appointments were made under the Dying-in-Harness Rules, which were effective in the Basic Shiksha Schools. For appointment of dependants of employees who had died-in-harness and were working under the Basic Shikhsa Parishad, the State Government had issued a Government Order, which was dated 2nd February, 1996 for providing the benefits of compassionate appointment. This Government Order was also further clarified by the Secretary, Basic Education Parishad on 25th July, 1997. In pursuance to the Government Orders, the petitioners were given appointment as has been stated earlier in this judgment. When these employees, however, were not being given their regular salaries and were only being given certain fixed pays, they approached this Court by means of a Writ-A No.16086 of 2011, wherein on 01.07.2013, the following order was passed:-
"It is, now a settled practice in the Basic and Secondary Education Department of the U.P.Government to first make illegal appointments contrary to the statutory provisions and to ensure payment of salary to the illegal appointees and then when the Court seeks information about such appointments the Secretary or Director come out with the report that certain appointments are illegal yet no accountability is fixed for such appointments and no action is taken against the officers who have made such illegal appointments/payment to illegal appointees.
The affidavit filed by the Secretary of the Basic Shiksha Parishad records that there is no Government order for offering compassionate appointment to the dependants on Class IV posts on fixed pay. The provision for appointment on compassionate ground on fixed pay is applicable only in respect of those persons who are appointed as untrained teacher. But the officers of the Education Department do not follow the rule of law.
A copy of the affidavit of Secretary of the Basic Shiksha Parishad dated 27.5.2013 has also been produced before this Court. In paragraph 3 of the affidavit, it is further stated that there have been 39 illegal appointments on compassionate ground contrary to the Government Order applicable. In some cases, such compassionate appointments have been offered after two decades of the death of the employee concerned.
In the opinion of the Court, Secretary, Basic Education must take all suitable action as is warranted under law against those Basic Shiksha Adhikari and other officers who have made such illegal appointments. The money paid to 39 appointees must be recovered from those officers who have made such illegal appointments and not from the employees. The responsibility must be fastened upon against the officers for creating such a situation and for ruining the entire education system of the State of U.P. The Secretary shall pin-point the name of the officers who have made such appointments and shall also issue appropriate orders for recovery of the amount from the officers' salary if they are in service and if they are not in service, the recovery shall be made from other funds of the officers.
A circular may also be issued informing all the Basic Shiksha Adhikaris throughout the State that compassionate appointment should be made in accordance with the rules. In case, it is found that any illegal appointment has been made in the garb of compassionate appointment, then the liability to return the money paid towards salary to such employee would be squarely upon such officers who make such appointments.
The matter shall be listed again on 6.8.2013 by which date, the Secretary concerned shall submit his action taken report before the Court. The Secretary must also ensure that all those persons who have been legally appointed are paid their right dues.
The office is directed to trace out affidavit dated 27.5.2013 and place it on record."
3. In pursuance to that order, it appears that on 30.07.2013 notices were issued to all the appointees, who were appointed under the Government Orders dated 2nd February, 1996 and 25th July, 1997. The petitioners thereafter had submitted their replies to the notices and had cited the Government Orders dated 06th February, 1996, 22nd July, 1997 and 25th July, 1997. However, when thereafter the appointments were cancelled by the Parishad, a writ petition being Writ-A No.32936 of 2016 was filed and when that writ petition came to be allowed by this Court on 19.03.2024, the instant special appeal has been filed.
4. Learned counsel appearing for the appellants i.e. the District Basic Education Officer, Moradabad and the Basic Education Board, Uttar Pradesh, Allahabad through its Secretary has submitted that the learned Single Judge erred in allowing the writ petition, inasmuch as, the learned Single Judge had not seen as to under what circumstances the appointments were made in between 1997 to 2003. Learned counsel for the appellants has further submitted that when the impugned orders in the writ petition were passed in pursuance of the order of the High Court dated 01.07.2013, then no error could have been found in those orders.
5. Learned counsel appearing for the writ petitioners/ respondents, however, has submitted that the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 and the Government orders dated 2nd February, 1996 and 25th July, 1997 had provided that the authority, which was making the appointment under the Dying in Harness Rules could have given a relaxation to an applicant, who approached the authorities to be appointed under the Dying in Harness Rules belatedly even after five years of the death of the incumbent.
6. Learned counsel for the petitioners-respondents has submitted that the order dated 01.07.2013 passed in Writ-A No.16086 of 2011 had under no circumstance stated that the appointment orders of the petitioners were erroneous and were to be set aside. If the authorities intended to look into the appointment orders then they ought to have initiated a disciplinary inquiry for doing away the appointments of the petitioners.
7. Learned counsel for the petitioners-respondents, therefore, states that when this had not been done, the impugned order in the writ petition could not be sustained and, therefore, it was rightly that the writ petition was allowed on 19.03.2024.
8. Having heard Ms. Akanksha Sharma, learned counsel for the appellants and Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel appearing for the petitioners-respondents, we are definitely of the view that the appointments were made in pursuance of the Government Orders dated 2nd February, 1996 and 25th July, 1997 and it definitely provided for a relaxation in the application by a particular dependant of a person who had died in harness even if the application was moved after five years of the death of the actual incumbent. It is, therefore, that we hold that the appointments definitely could have been made even after a period of five years and they could not have been cancelled. We are also of the view that a simple direction in any writ petition could not have been the basis for passing of the impugned orders, which had been impugned in the writ petition.
9. The order dated 01.07.2013 passed in Writ A No.16086 of 2011 had only expressed an opinion and had not given a definite final finding therefore that order could not have also been made the basis of the impugned order in the writ petition. Also since learned counsel for the appellants could not dispute the fact that the appointments were made in pursuance of the Government Orders dated 2nd February, 1996 and 25th July, 1997, we are definitely of the view that no interference is warranted in the instant special appeal.
10. The special appeal is, accordingly, dismissed. Consigned to record.
Order Date :- 8.1.2025
Radhika
(Dr. Y. K. Srivastava, J.) (Siddhartha Varma, J.)
