Ashwani Kumar Gautam vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the Petitioner and the learned standing counsel for the Respondents.

The Petitioner claims that he was appointed under the compassionate appointment rules framed under the Regulations of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 1921 Act) in an institution governed by the provisions of the said Act. The Petitioner''s father was working as a class III employee, who died in harness on 1.5.1993. The Petitioner, accordingly, was offerred appointment against a class III post and the same was approved under the order of the District Inspector of Schools dated 18.2.1994.

Learned Counsel for the Petitioner contended that the Petitioner was qualified and was entitled for being appointed as Assistant Teacher in the institution and, therefore, he made a representation for his appointment as Assistant Teacher under the compassionate appointment rules. The said request was not being considered, as a result whereof he approached this Court by filing Civil Misc. Writ Petition No. 54385 of 2003. The said writ petition was disposed of on 11.12.2003 with a direction to the authority concerned to decide the representation of the Petitioner dated 5.11.2001. The said representation was entertained by the District Inspector of Schools and an order was passed on 13.1.2004 allowing the same holding that the Petitioner was entitled for being appointed as Assistant Teacher. Accordingly, a letter of appointment as Assistant Teacher was issued on 31.1.2004 and the Petitioner is said to have taken charge on 3.2.2004.

The question arose - with regard to the payment of salary of the Petitioner as Assistant Teacher, and the then District Inspector of Schools vide letter dated 30.6.2004 sought clarification from the Director of Education as to whether the benefit of payment of salary as Assistant Teacher should be extended to the Petitioner or not. The matter was kept pending and ultimately, the same has been disposed of vide order dated 17.7.2008 passed by the District Inspector of Schools rejecting the claim of the Petitioner for payment of salary and withdrawing the approval order as Assistant Teacher dated 13.1.2004.

Shri Satish Dwivedi, learned Counsel for the Petitioner contended that the District Inspector of Schools has no power to review the order of approval dated 13.1.2004 by which the Petitioner was conferred the status of Assistant Teacher in the institution. He submitted that the reasons given in the impugned order are erroneous inasmuch as in view of the amendments, as contained in Regulations 101 to 107 of Chapter III of the 1921 Act, the Petitioner was entitled for being appointed as Assistant Teacher. He further submitted that there is no occasion for the authorities to have reviewed the said approval of the Petitioner and the attempt made by the District Inspector of Schools is without jurisdiction.

Counter affidavit has been filed on behalf of the Respondents. Rejoinder affidavit has also been filed by the Petitioner.

The stand taken in the counter-affidavit is a reiteration of the stand taken in the impugned order, which is, to the effect, that the Petitioner was not entitled to be appointed as Assistant Teacher under the compassionate appointment rules, as on the date of death of his father there were no such rules applicable. The impugned order further records that the District Inspector of Schools had erroneously entertained the application of the Petitioner for the subsequent improvement in the status of his employment, for which there is no basis and, therefore, the impugned order simply restores the correct legal position. It is further submitted that the Petitioner is not entitled to the payment of salary as Assistant Teacher and any claim in respect thereof, being untenable, the writ petition deserves to be dismissed.

The provisions as introduced vide amendment dated 14.7.1992 and contained in Regulations 101 to 107 of Chapter III of 1921 Act, and initially made a provision for the appointment against non-teaching posts on compassionate basis. The Petitioner''s father, admittedly, died on 1.5.1993 and the Petitioner was accordingly granted benefit of compassionate appointment on 18.2.1994 as a class III employee. Subsequently, in the year 1995 the aforesaid Regulation was amended and a provision was made for appointment on compassionate basis as an Assistant Teacher to such dependants. It is, therefore, clear that the aforesaid statutory provision was enforced much after the Petitioner had already availed the benefit of compassionate appointment in the year 1994. The benefit of the said provision cannot be given a retrospective effect. The Petitioner had only a right to be considered for appointment against a class III post or class IV post under the then existing provisions. In the absence of any such provision, existing at the time when the death took place, the Petitioner had no indefeasible right to claim appointment on compassionate basis as an Assistant Teacher. The finding recorded in the impugned order, to that effect, therefore, cannot be interfered with.

Apart from this, it is to be noted that the Apex Court time and again has said that once the compassionate appointment was offerred and accepted, the right to such appointment stood exhausted. It does not confer any absolute right. Further explaining the aforesaid position, which has emerged in the present case, namely, improvement of employment, the Apex Court deprecated any such attempt in the case of State of Rajasthan Vs. Umrao Singh,

Thus, the Petitioner had no right to move any application for the improvement of his status of employment. More so, he was not entitled for appointment as a teacher on the date of death of his father. The eligibility has to be seen on the date of the death of the employee and not on any subsequent date.

In the instant case, the Petitioner, according to the records, was favoured with a mandamus for the decision on his representation, which is of the year 2001. The said representation, therefore, was after seven years of the date of the initial appointment of the Petitioner. In such circumstances, the District Inspector of Schools committed a manifest error by entertaining such a representation and offering appointment to the Petitioner on the post of Assistant Teacher. The aforesaid error has, therefore, been correctly rectified and the impugned order, to that extent, cannot be interfered with.

Learned Counsel for the Petitioner states that the Petitioner has been paid salary as Assistant Teacher from 17.3.2007 to 1.4.2008. If that be so, in view of the findings recorded hereinabove, since there was no fraud or misrepresentation on the part of the Petitioner, the Respondents shall not proceed to make recovery of such salary, but the same shall be adjusted against the salary to which the Petitioner was entitled against a class III post. However, in view of the recital in the operative part of the impugned order, the Petitioner is entitled to continue against a class III post.

With the aforesaid observations the writ petition is dismissed.