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LALIT KUMAR SRIVASTAVA versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Lalit Kumar Srivastava v. State Of U.P. & Another - WRIT - A No. 35499 of 2001 [2004] RD-AH 1446 (19 November 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                       Reserved                                                                                                          

Civil Misc.Writ Petition No.35499 of 2001

Lalit Kumar Srivastava   Vs. State of U.P .and others

Hon'ble Sabhajeet Yadav, J.

On 29.10.2004 Sri Ashok Khare learned Senior Advocate for the petitioner and Sri R.K.Tripathi Advocate for respondents no.2 and 3 have been heard at length and on conclusion of hearing, the judgment was reserved.

The brief facts of the case are that the father of the petitioner late Hira Sri Lal Srivastava, while working as head master in the Primary School Gauspur, Hathgaon, District Fatehpur run by the Uttar Pradesh Basic Education Board, died in harness on 9.6.1999 leaving behind him his wife, four sons and one daughter. After his death, his uneducated widow demanded the service for the petitioner, who is her second eldest son, on any class-III post under Dying in Harness Rules applicable to the employees (teaching and non-teaching) of Uttar Pradesh Basic Education Board. According to the case of the petitioner, he is duly qualified to be appointed as a teacher or clerk in the establishment of the respondents, but he was offered only class-IV post in the Junior High School, Amilispal, Hathgaon, District Fatehpur, as he was told that no vacancy exists in class-III post and his class-IV post will be changed on availability of vacancy in class-III post in future. Accordingly he joined on class-IV post as offered to him vide order dated 2.8.1999 passed by the District Basic Education Officer, Fatehpur. According to the petitioner, shortly thereafter on 24.4.2000 the District Basic Education Officer, Fatehpur has appointed Sri Pawan Kumar Uttam and Smt.Sweta as class-III employees in the office of Deputy Basic Education Officer,Fatehpur in the pay scale of Rs.3050/- 4590/- under Dying in Harness Rules. They have also qualification of Intermediate. The petitioner has also filed the letter of appointment issued to Sri Pawan Kumar Uttam and Smt.Sweta as Annexure-2 of the writ petition. Feeling aggrieved against the aforesaid action of the District Basic Education Officer, the petitioner has approached the Secretary Basic Education, Government of Uttar Pradesh as well as the Minister of the concerned department of education by moving applications before them. The aforesaid applications have also been filed by the petitioner as Annexures-3 and 4 of the writ petition. On the application of the petitioner it appears that some endorsement has been made to the District Basic Education Officer by the concerned Minister of the Government of Uttar Pradesh indicating therein that the petitioner may be adjusted against class-III post. In support of his claim petitioner has also filed Government Order dated 4.9.2000 issued under Section 13(1) of Uttar Pradesh Basic Education Act, 1972 (U.P.Act No.34 of 1972) herein after referred to as Act-1972,as Annexure-5 of the writ petition. Finding no favour with the concerned District Basic Education Officer, Fatehpur, the petitioner has filed the instant writ petition seeking the relief to the effect that a writ, order of direction in the nature of mandamus may be issued commanding the respondents to appoint/promoted the petitioner on the post of un-trained teacher or clerk at the earliest as per provisions of Dying in Harness Rules and further a relief has been sought for in the nature of writ, order or direction to the effect that respondent no.3 may be directed to comply with the order of departmental Minister/Secretary of Govt. of U.P..

Dr.Chandra Pal, the then working as District Basic Education Officer, Fatehpur has filed counter affidavit on behalf of respondents no.2 and 3 in the writ petition and has come forward, inter alia, with the case that the petitioner has been offered appointment on class-IV post on compassionate ground in the institution in question and in pursuant thereof he has joined the post without any objection and since then he is continuously working on the aforesaid post and is being paid his salary month to month. It is further averred in the counter affidavit that there was no assurance by any of the officers/ District Basic Education Officer for changing his class-IV post in class-III post on account of availability of vacancy in class-III post in future. The Minister and Secretary of the department concerned have only directed for doing the needful in accordance with the provisions of law. Therefore, the petitioner can have no cause of complaint to maintain the instant writ petition before this Court for the reliefs claimed in it.

For better appreciation of the case of respondents, the averments contained in paragraphs 8 and 9 of the counter affidavit are quoted herein below:-

8. That the contents of paragraphs no.6 and 7 of the writ petition has already been reply in the proceeding paragraphs of this affidavit, as such they are denied accordingly. However, in reply it is hereby submitted that the petitioner was never assured for changing his appointment from class-iv to class-iii cadre, as such the averment in this respect made in para under reply is wholly falls and baseless. So far as the letters of Hon'ble Minister and Secretary Basic Education and concern, it is made clear that a direction and recommendation has been made to District Basic Education Officer for doing the needful in the interest of justice.

9. That the contents of para no.8 of the writ petition are not admitted as stated being misconceived and misleading before this Hon'ble Court. In reply it is hereby submitted that in the Government order dated 4.9.2000 it has never been provided that in case once a person appointed in class-iv post due to non availability of any class-iii post, in future on the availability of the class-iii post the said person can again to be posted from class-iv to class-iii cadre towards the compassionate appointment. Since the petitioner is already working and obtaining salary from the date of his initial appointment i.e. 2.8.99 on class-iv post, as such the petitioner cannot claim again to avail the benefit of Dying in Harness Rules. The allegation against the respondent no.3 regarding malafide and violation of constitutional provision is wholly baseless and the petitioner has made the same in para under reply just to make out his case in the instant writ petition. Rest of the averment made in para under reply being contrary to the facts hence they are denied.

The thrust of the submission of the counsel for the petitioner is that in view of the Government Order dated 4.9.2000, which has been made applicable with effect from 8.1.1999 having regard to the educational qualification as Intermediate, it was obligatory on the part of the respondents to offer a compassionate appointment to the petitioner on class-III post and not on class-IV post. In any case, shortly after the appointment of the petitioner on 2.8.1999, the other persons, namely, Sri Pawan Kumar Uttam and Smt. Sweta, who have also identical educational qualification as Intermediate, have been offered appointment on class-III post vide letter of appointment dated 24.4.2000, Therefore, the petitioner has been grossly discriminated in the matter of employment in utter violation of the provisions of Article 16(1) of the Constitution of India. Sri Khare has further contended that since in the counter affidavit filed by the District Basic Education Officer, Fatehpur, there is no averment at all specifically denying the fact that at the time of offer of appointment to the petitioner there exists no vacancy in the establishment of respondents against class-III post and the vacancies, which were offered to Sri Pawan Kumar Uttam and Smt. Sweta, have been occurred later on after appointment of the petitioner. Therefore it is established that the petitioner has been grossly discriminated in the matter of employment In any event of the matter while considering the claim of the petitioner, the relevant provisions of Government Order dated 4.9.2000 have not been adhered to. In support of his contentions the learned counsel for the petitioner has placed reliance upon the decision of Apex Court rendered in Surya Kant Kadam Versus State of Karnataka and others, reported in 2002 Supreme Court Cases (L & S) 1115 and a decision of this Court rendered in Sudhakar Srivastava Vs. Deputy Director of Education( Secondary) 9TH Region, Faizabad and others, reported in 2001(1) Education and Services Cases 419.

Before dealing with the rival contentions of the parties, it is necessary to examine the aims, object and purpose of the scheme underlying in Dying in Harness Rules for grant of compassionate appointment. The issue of grant of compassionate appointment under Dying in Harness Rules is not res-integra. The Apex Court and this Court have considered the issue from time to time and provided sufficient guidance for giving employment under Dying in Harness Rules. In the case of Smt.Sushma Gosain and others Vs. Union of India and others, reported in AIR 1989  Supreme Court  1976, in paragraph 9 of the report it was observed that:-

9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.

In the case of Director of Education (Secondary) and another Vs. Pushpendra Kumar and others, reported in AIR 1998 Supreme Court, 2230, while taking note of the earlier decision of the Apex Court rendered in the case of Umesh Kumar Nagpal V. State of Haryana, reported in 1994(4) SCC 138 in paragraph 8 of the judgment it was observed that-

8.The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot sub-sume the main provision to which it is an exception and thereby nullity the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the; post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee. In Umesh Kumar Nagpal V. State of Haryana, 1994(4) S.C.C.138: (1994 AIR SCW 2305) this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. In that case the Court was considering the question whether appointment on compassionate grounds could be made against posts higher than posts in Classes III and IV. It was held that such appointment could only be made against the lowest posts in non-manual and manual categories. It was observed at page 2308 of AIR SCW:-

"The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations and the change in status and affairs of the family engendered by the erstwhile employment which are suddenly upturned."

While superseding the earlier Government Order on the subject, Government of Uttar Pradesh has issued an order under clause (1) of Section 13 of the Act-1972, on 4.9.2000, wherein a complete scheme has been provided for making appointment under Dying in Harness Rules to the dependent of deceased teaching and non-teaching employees of Uttar Pradesh Basic Education Board, herein after referred to as the Board. This scheme has statutory sanction and statutory force to be enforceable in the court of law. The Government Order has retrospective operation with effect from 8.1.1999. For better appreciation of the provision underlying in Dying in Harness Scheme contained in the aforesaid Government Order, it is necessary to re-produce the same in toto:-          

 

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mi;qZDr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd 'kklukns'k la[;k 1095@15&5&95&30@82 fnukad 02 Qjojh 1996 ds vUrxZr mRrj izns'k csfld f'k{kk ifj"kn ds v/khu lsokjr f'k{dksa @ f'k{k.ksRrj deZpkfj;ksa dh lsokdky esa e`R;q gks tkus ij muds ,d vkfJr dks ifj"kn ds v/khu lsok;kstu ds lEcU/k esa O;oLFkk dh x;h FkhA ek0 mPp U;k;ky; bykgkckn esa ;ksftr fjV ;kfpdk la[;k&41564@1997 latho dqekj nwcs cuke ftyk fo|ky; fujh{kd bVkok o vU; esa ek0 U;k0 }kjk ikfjr vkns'k vnukad 27&4&98 dh vuq'khyu esa tkjh 'kklu ds vkns'k la[;k 1634 @ 15&11&98 & 1499 ¼8½ @ 77 fnukad 08] tuojh }kjk e`rd vkfJr lsok;kstu ds lEcU/k esa fuxZr lHkh 'kklukns'k vfrdzfer gks tkus ds QyLo:i csfld f'k{kk ifj"kn ds v/khu lsokvksa esa e`rd vkfJr lsok;kstu dh O;oLFkk mDr frfFk ls ckf/kr jgh gSA

2- bl chp ek0 mPp U;k;ky; ds mi;qZDr fu.kZ; fnukad 27-4-98 ds fo:) latho dqekj nwcs }kjk nk;j vihy la[;k&526 @ 98 esa ek0 mPp U;k;ky; dh nks lnL;h; U;k;ihB us vius vkns'k fnukad 01] Qjojh 2000 }kjk ek0 mPp U;k;ky; ds iwoZorhZ fu.kZ; fnukad 27-4-98 dksfujLr dj fn;k gSA ek0 mPp U;k;ky; dh nks lnL;h; ihB }kjk iz'uxr ekeyk lEcfU/kr ihB dks ek0 U;k;ky; dh lafo{kkvksa ds vkyksd esa iqufoZpkj gsrq lUnfHkZr fd;k x;k gSA

3- mDr ds vuqdze esa 'kklu }kjk ek0 U;k;ky; dh lafo{kkvks dh Hkkouk o izkFkfed f'k{kk dh xq.koRrk cuk;s j[kus dh vko';drk dks vuqHko djrs gq, lE;d fopkjksijkUr m0iz0 csfld f'k{kk ifj"knh; f'k{kdksa @ f'k{k.ksRrj deZpkfj;ksa dh lsokdky esa e`R;q gks tkus ij muds ifjokj ds ,d vkfJr dks fuEu fyf[kr 'krksZ ,oa izfrcU/kksa ds v/khu lsok;kstu dk volj iznku fd;s tkus dk fu.kZ; fy;k x;k gS %

¼1½ m0iz0 lsokdky esa e`r ljdkjh lsodksa ds vkfJrks dh HkrhZ ¼ikWapok la'kks/ku½ fu;ekoyh] 1999 ds izkfo/kkuksa ds vuqlkj gh csfld f'k{kk ifj"kn dh lsok ds f'k{kd @ f'k{k.ksRrj deZpkfj;ksa dh lsokdky esa e`R;q gks tkus ij e`rd deZpkjh dk ifr ;k iRuh ¼dsUnzh; ljdkj ;k fdlh jkT; ljdkj ds LokfeRok/khu ;k muds }kjk fu;af=r fdlh fu;e ds v/khu igys ls lsok;ksftr u gks rks muds dqVqEc ds ,sls ,d lnL; dks tks] dsUnzh; ljdkj ;k jkT; ljdkj ;k dsUnzh; ljdkj ;k jkT; ljdkj ds LokfeRok/khu ;k muds }kjk fu;af=r fdlh fuxe ds v/khu igys ls lsok;ksftr u gksA bl lEcU/k esa e`rd vkfJr vkosnudrkZ ls 'kiFk i= izkIr djus ds mijkUr gh mlds lsok;kstu ij fopkj fd;k tk;sxkA

¼2½ mRrj izns'k csfld f'k{kk ifj"kn ds f'k{kdksa @ f'k{k.sRrj deZpkfj;ksa ds ,sls e`rd vkfJr tks csjkstxkj gks vkSj fu;eksa ds vUrxZr fu/kkZfjr U;wure 'kSf{kd ,oa izf'k{k.k ;ksX;rk j[krs gksa rFkk vU; izdkj ls ifj"kn dh lsok gsrq vgZ gksa] dks ifj"knh; fo|ky;ksa ds lgk;d v/;kid @ v/;kfidk ds in ij vFkok ifj"kn ds v/khu f'k{k.sRrj r`rh; Js.kh ds lcls uhps ds in ij vFkok prqFkZ Js.kh ds in ij fofgr ;ksX;rk @ izf'k{k.k ;ksX;rk ds vk/kkj ij lsok;kstu gsrq vkosnu djus ij HkrhZ ds lkekU; fu;eksa@ izfdz;k dks f'kfFky djrs gq, ifj"knh; lsok esa miZ;qDr lsok;kstu ij fopkj fd;k tk;sxkA

¼3½ le;≤ ij ;Fkk la'kksf/kr mRrj izns'k csfld f'k{kk ¼v/;kid½ lsok fu;ekoyh 1981 ds vuqlkj vgZ e`rd vkfJr dks lgk;d v/;kid @ v/;kfidk ds in ij vkosnu djus ds fnukad ls ;Fkk lEHko rhu ekg ds vUnj lsok;kstu dhg lqfo/kk tuin Lrj ij fjDr in vFkok in fjDr u gksus ds fLFkfr esa vf/kla[; in ds fo:) iznku dh tk;sxhA

¼4½ ,sls e`rd vkfJr tks lsok;kstu gsrq vkosnu i= izLrqr djus dh frfFk dks lgk;d v/;kid ds in gsrq lsok fu;eksa es fofgr 'kSf{kd vgZrk j[krs gksa ijUrq izf'k{k.k vgZrk ugha j[krs @ iwjh djrs] dks vizf'kf{kr v/;kid ds :i  esa lsok;kstu gsrq vkosnu djus ij ;Fkk lEHko rhu ekg ds vUnj lsok;kstu dh lqfo/kk iznku dh tk;sxhA ,sls e`rd vkfJr dks lsok;kstu ds ckn lEcfU/kr tuin ds ftyk f'k{kk ,oa izf'k{k.k laLFkku esa izkjEHk gksus okys csfld v/;kid izek.k i= ¼ch-Vh-lh-½ izf'k{k.k  ikB~;dze ds vkxkeh igys cSp esa lgk;d v/;kid @ v/;kfidk ds in ij fu;fer fu;qfDr iznku djus ds fy, mudks ch-Vh-lh- izf'k{k.k ikB~;dze lQyrkiwoZd iw.kZ djuk vfuok;Z gksxkA izf'k{k.k vof/k esa mUgsa vizf'kf{kr v/;kid ds :i esa fu;r osru] tSlk fd 'kklu }kjk le; le; ij fu/kkZfjr fd;k x;k gks] ns; gksxkA csfld v/;kid izf'k{k.k ikB~;dze esa mRrh.kZ gksus ds ckn gh izkFkfed fo|ky; esa lgk;d v/;kid ds in ij fu;fer fu;qfDr iznu dh tk;sxhA

fu;qfDr izkf/kdkjh ,oa ftyk f'k{kk ,oa izf'k{k.k laLFkku dk ;g nkf;Ro gksxk fed og izf'kf{kr v/;kid ds :i esa lsok;ksftr e`rd vkfJr vH;fFkZ;ksa ds lsokjr izf'k{k.k dh O;oLFkk muds lsok;kstu ds ckn izkjEHk gksus okys igys izf'k{k.k l= esa lqfuf'pr djsaxsA

,sls d`rd vkfJr dk tks mi;qZDr lsokjr izf'k{k.k dks fu/kkZfjr vof/k esa lQyrkiwoZd iw.kZ djus esa vlQy jgrs gSa ds fy, ;g fodYi miyC/k jgsxk fd og prqFkZ Js.kh ds in ds lkis{k fu;qfDr gsrq vkosnu djsa vFkok izf'k{k.k mrrh.kZ djus rd vizf'kf{kr v/;kid ds :i esa fu;r osru ij cus jgsaA fdUrq izfrcU/k ;g gS fd ,sls lsokjr ch-Vh-lh- izf'k{k.kkfFkZ;ksa dks lkekU; ch-Vh-lh- ikB~;dze ds izf'k{k.kkfFkZ;ksa dh Hkkafr gh ch-Vh-lh- ikB~;dze dh vuqiwjd ijh{kk gsrq fofgr fu;eksa ds vuqlkj volj vuqeU; gksaxsA fdUrq ;fn vH;FkhZ rc Hkh ch-Vh-lh- dh vafre ijh{kk mrrh.kZ djus esa foQy jgrs gSa rks ,sls vH;fFkZ;ksa ds fy, prqFkZ Js.kh ds in ds lkis{; fu;fer fu;qfDr ds vfrfjDR VU: DKSBZ fodYi 'ks"k ugha jgsxkA vr% ,sls vH;FkhZ tks ch-Vh-lh- ijh{kk esa vafre :i ls foQy jgrs gSa] dks lgk;d v/;kid in ds fy, vH;FkZu Lor% fujLr le>k tk;sxk vkSj ch-Vh-lh- ijh{kk esa vafre :i ls foQy gksus ds ekg ds vafre dk;Z fnol ls vizf'kf{kr v/;kids ds :i esa Hkh mudh fu;qfDr Lor% lekIr le>h tk;sxhA fdUrq ,sls vH;FkhZ ;fn prqFkZ Js.kh ds fjDr @ vf/kla[; in ds lkis{; lsok;kstu dh izkFkZuk djrs gSa] rks ml ij fopkj fd;k tk ldsxkA

¼5½ ,sls e`rd vkfJr tks lEcfU/kr deZpkjh dh e`R;q ds fnukad dks e`rd vkfJr ds :i esa lsok;kstu ds fy, U;wure 'kSf{kd vgZrk b.VjehfM,V  vFkok mlls vf/kd j[krs gksa vkSj csfld f'k{kk ifj"kn ds v/khu vf/kuLFk Lrjks ij fyfid ds laoxZ ds lcls uhps ds in ij lsok;kstu ds fy, vU;Fkk vgZ gksa] dks lEcfU/kr tuin esa fyfid ds fjDr in ds lkis{; lEoxZ esa lcls uhps ds in ij lsok;kstu iznku fd;k tk;sxkA

tuin esa fjDr fyfid ds in ij e`rd vkfJr ds :i esa lsok;kstu ds fy, izkIr leLr vkosnu i=ksa dks izFke vkxr izFke iznRr ds vk/kkj ij iathd`r fd;k tk;sxk rFkk foHkkx esa fjDr gksus okys inksa ds lkis{; izFke vkxr izFke iznRr ds fu;e dk ikyu lqfuf'pr djrs gq, lsok;kstu iznku fd;k tk;sxkA fu;qfDr izkf/kdkjh rnuqlkj e`rd vH;fFkZ;ksa dh lwph dks izR;sd ekg ds izkjEHk esa vius dk;kZy; ds lwpuk iVy ij iznf'kZr djsaxs vkSj izR;sd ekg gksus okyh fjfDr ds lkis{; lsok;sftr e`rd vkfJr dk uke iznf'kZr djrs gq, mDr lwph dk;kZy; ds lwpuk iVy ij iznf'kZr djrs gq, mDR lwph dks rn~uqlkj la'kksf/kr dj vxys ekgh ds izkjEHk esa v|kof/kd la'kksf'kr lwph dk;kZy; ds lwpuk iVy ij iznf'kZr djrs jgsaxsA r`rh; Js.kh ds fjDr in ds lkis{; e`rd vkfJr lsok;kstu ds fy, izR;sd vH;FkhZ ds uke fu;qfDr izkf/kdkjh ds dk;kZy; esa iathd`r gksus dh frfFk ls ikWap o"kZ dh vof/k iwjh gksus ds ekg ds vafre dk;Zfnol rd ;fn izFke vkxr izFke iznRr ds fl)kUr ds vuqlkj lsok;kstu gsrq js.kh rhu dh fjfDr miyC/k ugha gksrh rks lEcfU/kr vH;FkhZ dk uke iathd`r vH;fFkZ;ksa dh lwph ls fudky fn;k tk;sxk vkSj ml fLFkfr esa lEcfU/kr vH;FkhZ mDr lqfo/kk ikus ds fy, ik= ugha jg tk;saxs] fdUrq bl vof/k ls iwoZ ;fn Js.kh pkj ds fjDr in @ vf/kla[; in ds lkis{; lsok;kstu gsrq viuk la'kksf/kr vkosnu i= fu;qfDr izkf/kdkjh ds dk;kZy; esa iathd`r djk ysa`] rks ml ij fopkj fd;k tk;sxkA

e`rd vkfJr ifjokj dh dfBu ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, ;fn dksbZ vH;FkhZ fyfid lEoxZ ds in dh fjfDr ds lkis{; lsok;kstu esa lEHkkfor foyEc dks n`f"Vxr j[krs gq, ;fn rRdky lso;kstu dh vko';drk vuqHko djrk gks rks fu;qfDr izkf/kdkjh ds fy, ,sls vH;fFkZ;ksa ds lEcU/k esa prqFkZ Js.kh esa fjDr ;k vf/kla[; inksa ds lkis{; e`rd vkfJr ds iqujhf{kr vkosnu i= izLrqr djus ij lsok;kstu djus dk vf/kdkj gksxkA ;gkWa ;g Li"V fd;k tkrk gS fd ,d ckj e`rd vkfJr ds :i esa iznRr lsok;kstu dh lqfo/kk ij iquZfopkj dk dksbZ volj ugha jgsxkA

¼6½ ,sls e`rd vkfJr fudh U;wure 'kSf{kd ;ksX;rk twfu;j gkbZ Ldwy gS] dks csfld f'k{kk ifj"kn ds vuin Lrjh; dk;kZy; esa fjDr in vFkok ifj"knh; fo|ky;ksa esa prqFkZ Js.kh ds fjDr ;k vf/kla[; in ij lsok;kstu dh lqfo/kk iznku dh tk;sxhA tuin Lrjh; dk;kZy; ds lEcU/k esa vf/kla[; in ds fo:) e`rd vkfJr lsok;kstu vuqeU; ugha gksxkA

¼7½ vf/kla[; in Hkfo"; esa fjDr gksus okys inksa ds lkis{; le;≤ ij le;ksftr fd;s tk;saxsA fu;qfDr  izkf/kdkjh tuin dks bdkbZ ekurs gq, fjDr@vf/kla[; inksa ds fo:) e`rd vkfJrksa dks lsok;ksftr djsaxsA tuin ds dk;kZy;ksa esa fdlh Hkh vf/kla[; in ds fo:) fu;qfDr;kwa ugha dh tk;saxhA vf/kla[; in ds in/kkjh }kjk dh x;h lsok dh x.kuk osru fu/kkZj.k vkSj lsokfuo`fRr ykHkksa ds fy, dh tk;sxhA

¼8½ e`rd vkfJr }kjk lEcfU/kr deZpkjh ds e`R;q ds fnukad la ikWp o"kZ ds Hkhrj lsok;kstu ds fy, vkosnu izLrqr fd;k tk ldrk gSA ijUrq tgkWa jkT; ljdkj dks ;g lek/kku gks tk;s fd lsok;kstu ds fy, vkosnu djus ds fy, fu;r le; lhek ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ gksrh gS ogkWa og vis{kkvksa dks ftUgsa og ekeys esa U;k; laxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh djus ds fy, vko';d le>s] vfHkeqDr ;k f'kfFky dj ldrh gSA fu;eksa esa bl vk'k; dh vfHkeqfDr @ f'kfFkyhdj.k ds lEcU/k esa izLrko lEcfU/kr fu;qfDr izkf/kdkjh }kjk f'k{kk funs'kd ¼cs0½ ds ek/;e ls 'kklu dks izsf"kr fd;s tk;saxsA

¼9½ mRrj izns'k lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dh HkrhZ ls lEcfU/kr le;≤ ij ijla'kksf/kr fu;ekoyh dh O;oLFkkvksa ds v/khu mRrj izns'k csfld f'k{kk ifj"kn ds dezpkfj;ksa ds e`rd vkfJr dk rkRi;Z e`rd f'k{kd @ f'k{k.ksRrj deZpkjh ds iq=] vfofokfgr vFkok fo/kok iq=h] iRuh vFkok ifr ls gksxkA

¼10½ e`rd vkfJr ds :i esa lsok;kstu ds fy, U;wure vk;q lhek tSlk fd lEcfU/kr lsok lEoxZ ds lsok fu;eksa es fofgr gS] gksxhA

4- Jh jkT;iky mRrj izns'k csfld f'k{kk vf/kfu;e] 1972 ¼mRrj izns'k vf/kfu;e la[;k&34] lu~ 1972½ dh /kkjk &13 dh mi/kkjk ¼1½ ds vUrxZr ;g vkns'k nsrs gSa fd mi;qDr fu.kZ; ds vuqlkj dk;Zokgh lqfuf'pr dh tk;A

¼5½ ;g vkns'k fnukad 08-01-1999 ls izHkkoh ekuk tk;sxkA

¼6½ ;g vkns'k forr foHkkx ds vk'kkldh; la[;k vkbZ0,Q0,0&2&1490@ nl @ 2000 fnukad 29-08-2000 esa izkIr mudh lgefr ls fuxZr fd;s tk jgsa gSA

                                                      Hkonh;

                                                       g0@&

                                                 ¼ ,u-jfo'kadj ½

                                                       lfpo

la[;k 5193 ¼1½ @15&5&2000&200 ¼222½ 99] rnfnukad

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr%&

1- funs'kd] ,l0lh0bZ0vkj0Vh0 y[ku�?A

2- lfpo] mRrj izns'k csfld f'k{kk ifj"kn] bykgkcknA

3- lelr ftyk csfld f'k{kk vf/kdkjh m0iz0A

                                                     vkKk ls

                                                       g0@&

                                              ¼ fnus'k pUnz dukSft;k ½              

                                                  fo'ks"k lfpoA**

A scrutiny of the aforesaid Government Order dated 4.9.2000 reveals that in case of death of any teaching or non-teaching employee of the Board during the course of service, one member of deceased employee will be considered for grant of compassionate appointment in terms and conditions as laid down in the aforesaid Government Order. The details of terms and conditions have been elaborately mentioned. In clause (1) of paragraph 3 of the aforesaid Government Order it is stated that compassionate appointment to the dependent of deceased employee of the Board may be given according to the Dying in Harness Rules applicable to the Government employees. In clause (2) of paragraph 3 of the Government Order the posts upon which compassionate appointment may be offered, are enumerated which, inter alia, provides that compassionate appointment may be given on the post of Assistant Teacher in the primary school and on the lowest post in class-III service or class-IV post having regard to the educational qualification and experience, by relaxing the rules of recruitment. In clause (3) of paragraph 3 it has been specifically mentioned that compassionate appointment on the post of Assistant Teacher may be given to the dependent of deceased employee against any vacant post at district level or in absence of vacancy on supernumerary post provided the candidate is eligible for appointment on the post of teacher under Uttar Pradesh Basic Education Teachers Services Rules, 1981 as amended from time to time. In clause (4) of paragraph 3 of the aforesaid Government Order specific provision has been made for appointment to the dependent of deceased employee on the post of Assistant Teacher, who is untrained, but have academic qualification according to the service rules.

Clause (5) of paragraph 3 of the aforesaid Government Order specifically deals with the cases of dependents of deceased employees, who possess Intermediate qualification or above that  and have applied for class-III post in clerical cadre. They may be given employment at the lowest post in clerical cadre against vacant posts. In the aforesaid paragraph the further provision has been made to the effect that for providing employment against the vacant posts in clerical cadre at district level, all the applications have to be registered on the basis of the principle of "first come first serve" and the appointing authorities are required to publish the list of dependents of deceased employee at the notice board of their office and further after appointment against vacant posts in every month, the aforesaid list has to be modified for next coming month and the same shall also be placed and published at the notice board of their office. If no vacancy in class-III post occurs within five years and the candidates applied for appointment against class-III posts, could not be given appointment in class-III post in the aforesaid period of five years. In that event of the matter, their names from the aforesaid list shall be deleted and such candidates shall not be eligible for seeking appointment against class-III post, but before the expiry of the aforesaid period of five years, if such candidates place their revised/amended applications for appointment against class-IV posts and get them registered in the office of appointing authority, the same can be considered. It is further provided that in case if any dependent of deceased employee having regard to the financial scarcity and poverty of his family, could not be in a position to wait much time for appointment against class-III post and seeks immediate employment and makes revised/ amended  application for appointment against class-IV post either against available vacancy or against any supernumerary post, then the appointing authority can make appointment either against any vacancy of class-IV post or against any supernumerary post and once such appointment is made, the same cannot be re-opened.

Before applying the provisions of the aforesaid G.O.  another question arises for consideration is that since the Government Order dated 4.9.2000 came into being subsequent to the appointment of the petitioner, though it has retrospective effect with effect from 8.1.1999, what would be the legal effect of the aforesaid Government Order in the facts and circumstances of the case. In this regard it is to be noted that the Government order dated 4.9.2000 has been made applicable with effect from 8.1.1999 as indicated in  paragraph 5 of the Government Order, meaning thereby this Court has to assume the things by way of legal fiction from the date when the Government Order has become operative on 8.1.1999 and the right and obligation of the parties have to be decided keeping the view in mind the aforesaid date for the purpose of commencement of the aforesaid Government Order . Besides this, in the aforesaid Government Order there is no indication at all to the effect that the appointment already made prior to issuance of the aforesaid Government Order will not be affected on account of operation of the Government Order having its retrospective effect. In absence of any indication in the Government Order itself since it is beneficial piece of legislation, therefore a  liberal construction has to be given in favour of the beneficiary of the Government Order. By viewing the matter from this angle the necessary consequence which flows from the aforesaid Government Order is that having regard to the educational qualification of the petitioner as Intermediate, the appointing authority is required to consider the claim of petitioner for grant of compassionate appointment against class-III post.

It is necessary to mention here that the petitioner has sought relief of mandamus either for appointment on the post of untrained teacher or on the post of clerk under Dying in Harness Rules. Therefore, it is necessary to examine as to whether he could have been considered for compassionate appointment as untrained teacher. Since under the aforesaid Government Order in order to claim employment under Dying in Harness Rules in teaching staff on the post of Assistant Teacher in the primary school run by the Board, the candidate is required to satisfy the eligibility criteria to be appointed as teacher under Uttar Pradesh Basic Education Teachers Services Rules, 1981. Rule 8 of the aforesaid Rules prescribes the academic qualification for appointment on the post of Assistant Teacher, a candidate must have Bachelor degree from a University established by law in India or a degree recognized by the Government as equivalent thereto together with training qualification like BTC, HTC, JTC, CT or any other training course recognized by the State Government as equivalent thereto. Although under the Government Order a provision has been made to appoint untrained teacher and permit the appointee to complete training course during the course of employment, but since the petitioner is lacking essential academic qualification of Bachelor degree, therefore, his claim cannot be considered for appointment on the post of Assistant Teacher even as an untrained teacher, that is why it appears that the learned counsel for the petitioner did not press the aforesaid relief claimed in the writ petition.

Although the petitioner has mentioned in the writ petition that the departmental Minister has directed the District Basic Education Officer, Fatehpur to appoint him in clerical cadre and endorsement to the said effect has been made on the application of the petitioner.In this regard it would be sufficient to say that unless the Government issue any order in conformity with the provisions of Article 166 of the Constitution of India, the same has no legal effect and consequence. Therefore, the alleged noting and endorsement by the departmental Minister on the application of the petitioner for his appointment against class-III post is of no legal consequence . It is well settled law that the noting on the office file either by the departmental authority or by the Minister does not confer any right in whose favour it is made , that is why it appears that the learned counsel for the petitioner did not press the issue in his argument.

Now the question for consideration is that as to whether any vacancy against class-III post in the establishment of respondents no.2 and 3 was existing at the time of offer of appointment to the petitioner on class-IV post. In this regard the submission of the learned counsel for the petitioner is that in the counter affidavit filed on behalf of respondents no.2 and 3 there is no specific denial that there exists no vacancy against class-III post on the date of offer of appointment to the petitioner against class-IV post, but simultaneously I found no material on record to establish that there exists any vacancy in class-III post in the establishment of respondents no.2 and 3 either on the date of application of the petitioner or on the date of offer of appointment made to him against class-IV post. Therefore, this question requires further probe in the matter for all fairness is to be done by some authority higher to the appointing authority. After due enquiry if it is found that on the date of offer of appointment to the petitioner i.e. on 2.8.1999 any vacancy against class-III post in the district was available, it was required to be offered to the petitioner on the basis of principle of "first come first serve" and in case there exists no such vacancy in class-III post in the district and the petitioner has moved his revised application  for class-IV post to the appointing authority, only in that event of the matter the appointing authority could have offered appointment to the petitioner against class-IV post and not otherwise in accordance with class (5) of paragraph 3 of the Government order dated 4.9.2000. If it is found that on the date of appointment of petitioner any vacancy against class-III post in the district was not available in that event of the matter he ought to have been asked  either to wait for occurrence of such vacancy or  revise his application for class-IV post. The offer of appointment to the petitioner against class-IV post and acceptance by him without following the aforesaid procedure is of no legal consequence and cannot be taken to be  any way  impediment in accepting the claim of the petitioner against class-III post. It is also necessary to make it clear that right to be considered for compassionate appointment may not be understood in the terms of any statutory or vested right in the legal parlance, rather it should be construed and meant in the terms of Dying in Harness Rules applicable to the Government employees inasmuch as the provisions contained in the Government Order in question. Therefore, it is dependent upon the terms and conditions laid down for compassionate appointment under Dying in Harness Rules applicable to the Government employees inasmuch as the scheme underlying in the Government Order in question applicable to the dependents of deceased employees of the Board.

Now the next question arises for consideration as to whether the petitioner has been discriminated in the matter of consideration for employment vis-à-vis  to other persons mentioned in the writ petition. In this regard the counsel of the  petitioner has contended that Sri Pawan Kumar Uttam and Smt.Sweta , who have also identical academic qualification to the petitioner as intermediate, have been offered appointment against class-III post on 24.4.2000, but the petitioner has been discriminated in the matter of employment. In this regard it is to be noted, as indicated in the earlier part of the judgment that in case the provisions of clause (5) of paragraph 3 of the Government Order dated 4.9.2000 is implemented and the principle of "first come first serve" is applied, the position would  be otherwise. In this regard it is to be seen that as to when the petitioner has moved application. If it is found that the petitioner has moved his application prior in time than that of Sri Pawan Kumar Uttam and Smt. Sweta, he would have offered appointment first on occurrence of vacancy in class-III post in the district. In case the applications of Sri Pawan Kumar Uttam and Smt.Sweta are found earlier in point of time, they could be dealt with in accordance with the provisions of the aforesaid Government Order.  In order to decide this question, further probe is needed by the authority as indicated in the earlier part of the judgment and for that purpose he is also required to give an opportunity of hearing to the petitioner as well as Sri Pawan Kumar Uttam and Smt.Sweta in the time framed to be indicated hereinafter. In support of his contention learned counsel for the petitioner Sri Ashok Khare has relied upon a decision of the Apex Court rendered in Surya Kant Kadam (Supra).  The facts and circumstances of the instant case are different and distinguishable from the facts of the aforesaid case. In the aforesaid case on the death of his father, the appellant was given a compassionate appointment as Second Division Assistant / Clerk, even though he had applied for the post of Sub-Inspector  of Excise and did possess the necessary qualification for the said post. Respondents no.3 and 4  whose father also died while in service were appointed similarly as Second Division Assistant/ Clerk on 9.1.1978 and 19.12.1979 respectively. Those respondents no.3 and 4 while continuing as Second Division Assistant/ Clerk were later on promoted /appointed as Sub-Inspector of Excise on 3.10.1987 and 27.4.1988. The appellant, who had been earlier appointed on compassionate ground as Second Division Assistant/Clerk and was entitled to be considered for appointment as Sub-Inspector of Excise was not considered when respondents no.3 and 4 were appointed as Sub-Inspector of Excise. Therefore, in the aforesaid context the Apex Court has held that the appellant of the aforesaid case has been discriminated in the matter of employment, but in the case in hand from the materials available on record there is nothing to establish at this stage that the petitioner as well as Sri Pawan Kumar Uttam and Smt.Sweta has simultaneously applied under Dying in Harness Rules against class-III post or they have applied later on and vacancies against class-III post were already existing in the district. Therefore, it cannot be said at all at this stage that the petitioner has been met any discriminatory treatment vis-à-vis to Sri Pawan Kumar Uttam and Smt. Sweta unless the aforesaid facts are probed by the authority to be indicated herein after in this judgment in the time framed to be indicated in it.

Learned counsel for the petitioner has also placed reliance upon another decision of this Court rendered in the case of Sudhakar Srivastava (Supra) . The aforesaid case is also distinguishable on the facts, as the aforesaid case relates to the case of compassionate appointment on the post of Assistant Teacher in LT Grade in Govt. aided privately managed Secondary School, wherein different scheme of Dying in Harness Rules underlying in Regulations 101 to 106 and 107 framed under Chapter-III of the U.P.Intermediate Education Act, 1921 was under consideration. Here in the case in hand different scheme of Dying in Harness Rules underlying in the Government Order dated 4.9.2000 is under consideration. Therefore, the aforesaid case cited by the learned counsel for the petitioner can be of no assistance to the  petitioner.

Now the next question arises for consideration that which relief can be granted to the petitioner in this writ petition. In this regard , as observed in the preceding part of the judgment, it is pertinent to mention here that now a days rampant corruption in the public life has become a national malady. Therefore, I am of the considered view that the Director of Basic Education, who is chairman of the Board, have power and jurisdiction to supervise and superintendence over the affairs of administration, may be directed to enquire into the matter by summoning the record from the office of District Basic Education Officer, Fatehpur in respect of the application moved by the petitioner as well as by Sri Pawan Kumar Uttam and Smt. Sweta and probe  the existence of vacancies against class-III post in the district concerned and applications moved against such vacancies under Dying ;in Harness Rules in the district and the registration of such application from the office of District Basic Education Officer, Fatehpur and decide the controversy by affording an opportunity of hearing to the petitioner as well as Sri Pawan Kumar Uttam and Smt.Sweta within a period of three months . In case if it is found that on the date of application of the petitioner, there was any vacancy in class-III post in the district , he may be offered appointment against class-III post on the principle of "first come first serve". In case the vacancies have occurred later on after appointment of the petitioner against class-IV post and he has made application for appointment against class-III post and has not moved another revised application for appointment against class-IV post, his claim is required to be considered for appointment against class-III post on the principle of "first come first serve" inspite of the fact that he has been appointed against class-IV post. If it is found that any vacancy in class-III post was not existing in the district concern at the time of appointment of petitioner on class-IV post and on account of possible delay in occurrence of vacancy in class-III post, he could not have waited for occurrence of such vacancy due to his pressing need of employment having regard to financial stringency and poverty of his family, he has submitted his revised application for appointment on class-IV post in that eventuality alone his appointment on class-IV post need not to be re-opened and not otherwise. While probing of the vacancies against class-III post in the district, the Director of Basic Education is required to state the manner of occurrence of vacancies also as to how and when the vacancies have occurred and as to whether they have been occurred on account of death/ retirement or otherwise and the date of occurrence of vacancies is required to be mentioned in the order. It is made further clear that the appointment on supernumerary post can only be made on class-IV post and on the post of Assistant Teacher in the primary school run by the Board. There can be no claim for compassionate appointment on supernumerary post in class-III. It is also made clear that while deciding the controversy, Director Basic Education is expected to pass reasoned and speaking order.

Before parting with the judgment, I must  appreciate the transparent policy of the Government in respect of appointment under Dying in Harness Rules contained in the Government Order dated 4.9.2000. To my mind the aforesaid transparent policy of the Government cannot be properly and effectively implemented on account of rampant corruption in the public life and other sort of favouritism, nepotism and so many other factors,, which determines the functioning of Government/ public functionaries in day to day working unless some monitoring cell is constituted at regional level and at head office level by the Government whereunder the regional Officer at regional level and the Chairman of the Board/ Director of Basic Education at head office level may be held responsible for proper and effective implementation of the aforesaid Government Order. Therefore, I direct that within three months the Government may take steps to constitute monitoring cell at regional level and at head office level to supervise and ensure  proper and effective implementation of the Government Order dated 4.9.2000 in respect of appointment under Dying in Harness Rules underlying in the aforesaid Government Order. The Registrar General, High Court is directed to communicate the copy of this judgment to the Secretary of Basic Education, Government of Uttar Pradesh as well as the Chief Secretary of Government of Uttar Pradesh for its compliance and necessary action.

The petitioner is directed to move an application alongwith certified copy of this judgment before the Director of Basic Education Uttar Pradesh within 15 days from today who is directed to pass appropriate order in the light of observations and directions made in the body of the judgment within three months.

With the aforesaid observations and directions this writ petition is disposed of finally. The parties shall bear their own costs.

Date:19.11.2004

CPV/    


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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