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SHYAM DHAR MISHRA versus STATE OF U.P. THROUGH SECRETARY, & OTHERS

High Court of Judicature at Allahabad

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Shyam Dhar Mishra v. State Of U.P. Through Secretary, & Others - WRIT - A No. 34997 of 2002 [2005] RD-AH 5166 (28 October 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                    RESERVED

CIVIL MISC. WRIT PETITION NO.34997 OF 2002

Shyamdhar Mishra  v. State of U.P. and others

                        -----------------------  

Hon'ble Tarun Agarwala, J.

The father of the petitioner was working as a Lecturer in Economics in S.R.P. National Inter College, Handia, district Allahabad and died in harness on 27.4.1984. The petitioner applied for an appointment on compassionate ground. On 23.10.1992, the petitioner was issued an appointment on the post of an Assistant Clerk. By a notification dated 2.2.1995, Regulation 101 to 107 of Chapter III of the Regulations framed under the Intermediate Education Act, were substituted and Regulation 103 provided that a dependant of an employee, who died in harness could be given an appointment on the post of a teacher, provided he possessed the prescribed requisite academic qualifications. This Regulation 103 was also made applicable to those employees, who died on or after 1.1.1981.

Based on Regulation 103, as substituted by notification dated 2.2.1995, the petitioner made a representation dated 13.12.1995 to the respondents for being appointed as a teacher on the ground that he possessed  the requisite qualification at the time when he was given the appointment in the year 1992.  In the year 2001, the petitioner made another representation and, thereafter, filed Civil Misc.Writ Petition No.5143 of 2002, which was disposed of with a direction to the District Inspector of Schools, Allahabad, to decide the representation of the petitioner. The petitioner's representation was rejected by an order dated 15.6.2002 by the District Inspector of Schools, Allahabad, on the ground that once the petitioner had availed the benefit of an appointment under the Dying in Harness Rules, he could not get another benefit of a compassionate appointment on the post of a teacher. Consequently, the present writ petition has been filed for the quashing of the order passed by the District Inspector of Schools, Allahabad dated 15.6.2002 and for a writ of mandamus

                                                 2.

commanding the respondents to appoint the petitioner on the post of an Assistant Teacher.                                                  

Heard Sri Surendra Prasad, the learned counsel for the petitioner and Sri Sandeep Mukerji, the learned counsel appearing for the respondents.

The learned counsel for the petitioner submitted that in view of Regulation 103 which is applicable to those employees, who had died on or after 1.1.1981, the petitioner is liable to be re-considered by the respondents for the post of a teacher in view of the fact that his father had died in the year 1984 and that the petitioner possessed the requisite qualification for being appointed on the post of a teacher. In support of his submission the learned counsel for the petitioner has relied upon a decision  in Sudhakar Srivastava v. Deputy Director of Education and others, [2001]1 UPLBEC 890 in which it was held that if under compelling circumstances, a person had opted for a post, which was offered to him, the same would not deprive him from his legal rights in getting an appointment on the post of an Assistant Teacher, if he possessed the requisite qualifications and was eligible for being appointed on the post of a teacher.

The learned counsel for the petitioner has also relied upon a decision of the Supreme Court in Surya Kant Kadan v. State of Karnataka and others,2001[2] ESC 346 in which the petitioner/ appellant was appointed on compassionate ground as an Assistant Clerk, the Supreme Court held, that appointing the appellant, as an Assistant Clerk, was discriminatory  and directed the respondents to appoint the appellant as a Sub Inspector.

The learned counsel for the petitioner also placed reliance of a judgment in Special Appeal  No.170 of 1997, Sanjay Pratap Singh v. The Consolidation Commissioner and others, decided on  18.2.2002 wherein a Division Bench of this Court held that the appellant was liable to be appointed on the post of a Consolidator and that his appointment on the post of a clerk was discriminatory.

In my opinion, the petitioner is not entitled for any relief and the judgements cited by the learned counsel for the petitioner are

                                               3.

distinguishable. Regulation 103 of Chapter III of the Regulations framed under the Intermediate Education  as substituted w.e.f. 2.2.1995 reads as under :

                                                     

"103. Notwithstanding anything contained in these regulations, where any teacher or employee of ministerial grade of any recognised, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less than eighteen years in age, can be appointed on the post of teacher in trained graduate grade or on any ministerial post, if he possesses prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment:

Provided that anything contained in this regulation would not apply to any recognised aided institution established and administered by any minority class.

Explanation-- For the purpose of this regulation "member of the family" means widow or widower, son, unmarried or widowed daughter of the deceased employee.

Note- This regulation and Regulations 104 to 107 would apply in relation to those employees who have died on or after 1 January, 1981."

The aforesaid Regulation provides that a dependant of an employee who has died on or after 1.1.1981 could be given an appointment on the post of a teacher, if he possesses the prescribed and requisite academic qualifications. No doubt, the Regulation would apply to an heir of the deceased , who sought an appointment on compassionate ground, who had died on or after 1.1.1981, but it does not mean that a dependant who has already been given an appointment on a particular post would again be eligible for being re-considered on another post on the basis of the Regulation 103  being substituted in the year 1995.

In my view, once the appointment is made on the compassionate  ground, the said Rule comes to an end and no further appointment could be made under the said Rules. The authority could not, in any manner, reconsider the case of the petitioner or of any other person where an appointment had already been given at some anterior point of time, on compassionate ground under the Dying in Harness Rules.

                                       4.

In State of Rajasthan v. Umrao Singh, 1994[6] SCC 560, the Supreme Court held that once an appointment on a Class-IV post is

accepted under the Dying in Harness Rules, it was not possible for the authority to consider the claim of the employee again on a class-III post. Similar view was expressed by this Court in Pankaj Swami v. Vice Chancellor, Ch. Charan Singh University, Meerut and others, 2003 [3] ESC 1268.

In view of the Supreme Court judgment, the decision given in the case of Sudhakar Srivastava v. Deputy Director of Education [supra] is per incuriam  and is liable to be ignored. The judgment of the Supreme Court in Surya Kant Kadan [supra] and the judgment of the  Division Bench of this Court in the Case of Sanjay Pratap Singh [supra] are distinguishable inasmuch as, in these cases the appointment  given to the  dependant on a particular post was held to be discriminatory and therefore, directed the respondents to appoint the petitioner on another post.                                              

In view of the aforesaid, I do not find any error in the impugned order. The District Inspector of Schools, Allahabad, was justified in rejecting the claim of the petitioner. The writ petition fails and is dismissed. In the circumstances of the case, there shall be no order as to costs.

Dt.October 28,2005

Ak/


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