Bhagwan Singh and Others vs District Basic Education Officer and Others

Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. This writ petition has been filed claiming that petitioners are working in Different Basic Primary Schools under the Control of Nagar Nigam, Agra. Petitioner No. 1, Bhagwan Singh was appointed on 28.4.1996 on the post of Class IV employee in Balika Basic Primary School Naya Gher, Agra on compassionate ground in place of his mother late Shanti Devi who expired on 12.12.1989. Petitioner No. 2 was appointed on 19.7.1985 on compassionate ground in place of his father late Jagannath Prasad Dubey who was Headmaster in Basic Primary School, Khawaspura, Agra Cantt., Agra. Petitioner No. 3 who was initially appointed on 20.7.1990 on the post of Class IV employee in Basic Primary School, Agra on compassionate ground in place of his father Sri Ram Ji Lal Srivastava who was Headmaster in Basic Primary School, Motiya Ki Bagichi.

It has also stated that vide his letter dated 27.6.1995. The Education Superintendent (Shiksha Adhikshak) Nagar Nigam, Agra, respondent No. 2, recommended the case of the petitioners to respondent No. 1 mentioning therein that 122 posts of Assistant Teachers are vacant and the petitioners may be appointed on any posts.

Counsel for the petitioners submits that all the petitioners were qualified to be appointed as Assistant Teachers and their representations with regard to the same are pending before the District Basic Education Agra and in this regard the aforesaid letter dated 27.6.1995 and 24.7.1995 were issued recommending appointment of the petitioners on the vacant posts of Assistant Teachers that respondent No. 2 issued an appointment letter dated 2.11.1995 appointing the petitioner No. 1 as Assistant Teacher in Basic Primary School, Billochpura: petitioner No. 2 as Assistant Teacher in Basic Primary School, Nagla Singho, Agra and petitioner No. 3 as Assistant Teacher in Basic Primary School, Nagla Mahadeo, Agra.

Pursuant thereto all the petitioners joined in their respective schools where they had been appointed on the post of Assistant Teacher on 4.11.1995. However, respondent No. 1 thereafter issued a letter dated 6.12.1995 to the petitioners for showing cause within three days as to under which circumstances, the petitioners were given appointment under dependents of deceased dying in harness Rules 1974 for the reason that petitioners had already exhausted their discretion of compassionate appointment on Class-IV posts.

It is stated that without affording any opportunity to the petitioner another letter dated 11.12.1995, was issued by the respondent No. 2 terminating the services of the petitioners w.e.f. 6.12.1995, suo-motu, from the post of Assistant teachers, directing them to join their substantive posts as Class-IV employee on which they had been given compassionate appointment. Copy of this letter has been appended as Annexures-11A and 11B to the writ petition, respectively. Subsequently, the Basic Shiksha Adhikari, Agra also terminated the services of the petitioners from the post of Assistant Teachers vide letter dated 5.1.1996, appended as Annexure-12 to the writ petition, wherein it was stated that in absence of any receipt or any reply within the stipulated time pursuant to the show cause notice their appointments are being cancelled on the ground that petitioners have obtained the appointment by concealment of facts of having already availed the benefit of compassionate appointment earlier.

The order impugned aforesaid is assailed by the petitioners on the ground that respondent Nos. 1 and 2 have no jurisdiction to review their own orders simply on false and flimsy grounds of concealment of facts by the petitioner in respect of earlier appointment of Class IV posts under dying in harness rules. It is also assailed on the ground that it is obvious from letter dated 24.7.1995 (Annexure-1 to the writ petition) that respondents were aware of the facts that petitioners were working on the post of Class IV employee having been appointed on the said posts under the dying in harness rules. It is stated that in fact the petitioners have not concealed any fact from the respondents and the order impugned passed by respondent No. 1 is illegal as he cannot sit in appeal over his own judgment.

It is urged that respondent No. 1 was estopped in law from passing any order cancelling appointment of the petitioners as all the facts regarding compassionate appointment of the petitioners on Class IV employee were in his knowledge: that respondent No. 1 has no jurisdiction to pass the impugned order as it was wholly against the principles of legitimate expectations in the circumstances of the case and even otherwise also the act of the respondent in passing the impugned order will cast stigma in the services of the petitioners in future as the same contains false statement of concealment of facts for appointment on the post of Assistant Teachers.

It is stated that in view of the facts and circumstances, the petitioners would suffer irreparable loss and injury in case the order impugned dated 11.12.1995 passed by respondent No. 2 (appended as Annexures-11A and B) and impugned order dated 5.1.1996 passed by the respondent No. 1 appended as Annexure-12 to the writ petition is also not quashed.

In the counter-affidavit filed by Chief Standing Counsel on behalf of U.P. Basic Shiksha Parishad, it is averred that petitioners had been given appointment as Class IV employee as per Rules and the petitioners having once accepted the appointment on Class IV posts, cannot claim any other appointment under the category of dependant of persons dying in harness rules. They could however, make an application for fresh appointment as general candidate, to be appointed under the relevant recruitment Rules.

Learned standing counsel has urged that the petitioners have procured the appointment as Assistant Teachers by playing fraud on the concerned department as appointment of these posts were procured by the petitioners without disclosing the facts that they have already availed the benefits under, the category of dependent of Government employee under dying in harness Rules. Moreover, the appointment of the petitioners as Assistant Teacher was conditional subject to termination without any notice if-it was found that any information given by them was concealed. It is stated that even otherwise, the services of the petitioners being purely temporary could be terminated without any notice but in the instant case apart from above, temporary services of the petitioners as Assistant Teacher were terminated as soon as fraud played by them came to the knowledge of the respondent-authorities by giving them show cause notice, which the petitioner deliberately avoided.

In the circumstances, the department having no other alternative or option, other than to proceed on the basis of record and the facts which had not been controverted by the petitioners before termination of their services.

In the rejoinder-affidavit filed on behalf of respondents No. 1, 2 and 3, the facts averred in the writ petition have been reiterated. However, in addition, it has been stated that the petitioners categorically denied from guilty of playing fraud and allegations in this respect has been made irresponsible only with ulterior motive to prejudice the Court. The allegation of fraud played by the petitioners is said to be nothing but an eye wash. which is apparent from the detailed fact mentioned in the writ petition. It has also been reiterated that neither any fact was concealed or misrepresented nor any fraud was played by the petitioners for being appointed as Assistant Teachers.

A supplementary-affidavit on behalf of the petitioners has also been filed wherein it has been stated that petitioner No. 2 has passed B.A. Final with Arts subject in 1995 from Agra University, Agra and thereafter during the year 1997 he has passed M.A. with Sanskrit subject from Agra University. Copy of the mark-sheet are appended as Annexure-2 to the supplementary-affidavit.

Similarly petitioner No. 3 is said to have been passed High School in 1982 and Intermediate Education in 1991 from U.P. at Allahabad, A copy of his mark-sheet has been appended as Annexure-3 to the supplementary affidavit. It is stated that petitioner No. 1, Bhagwan Singh passed High School in 1966 from U.P. High School Board and intermediate in 1970 from Intermediate Education U.P., Allahabad as a regular students of Muphide-E-Aam Inter College, Agra and has passed B.Sc. degree in 1977 with Science subject from Agra University, Agra. Copy of the same are appended as Annexure-1 to the supplementary-affidavit.

Counsel for the petitioners has placed the aforesaid mark-sheet and Rule 10 of U.P. Basic Shiksha Karmachari Varg Niyamawali, 1993 which provided the academic qualification for appointment of Assistant Teachers in the Primary School and in the Junior High School.

Rule 10 reads as under:

On the basis of above mark-sheet and Rule 10, it is argued that petitioners were entitled to be appointed as Assistant Teacher in consonance with their educational qualification.

After hearing counsel for the parties and on perusal of record, it is apparent that petitioners had been appointed as Class IV employee under the U.P. Dependents of Government Servant Dying in Harness Rules, 1974. They had exercised their option and had joined their posts. The compassionate appointment is an exception to normal mode of recruitment. Once the petitioners exercised their option on existed post, they could not have exercised their option again for the same cause which was redressed by the appointment as Class-IV employees.

Petitioners were to be promoted as Assistant Teacher, they could have only been promoted in accordance with Rules or in case of vacancy depart to be filled up by direct recruitment in the manner prescribed in the aforesaid rules. The petitioners were given show cause notice as to why their appointment as Assistant Teacher be not cancelled for concealment of facts. The show cause notice was not replied to by the petitioners and as such it cannot be said that no opportunity was given to the petitioners before cancellation of their appointment as Assistant Teacher. The show cause notice clearly states that petitioner had to explain for their appointment as Assistant Teacher which they had obtained by concealment of facts that they had been earlier appointed on compassionate ground be not cancelled. The show cause notice read thus:

It appears that instead of abolishing even the earlier post of Class IV employee and taking strict disciplinary action only their services from the post of Assistant Teacher had been cancelled by following order:

Even if it is assumed that services on the post of Assistant Teacher were vacant, the same were to be filled up by promotion or by direct recruitment in the manner prescribed in the Recruitment Rule. The case of the petitioners is not that they had taken their benefit under the dying in harness rules for the first time as benefits of employee of Government servant who had died in harness. Therefore, they had no right to be reappointed for a second time, afresh, as Assistant Teacher under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, particularly when they had taken their option and exhausted it earlier. For all the reasons stated above the appointment of the petitioners as Assistant Teacher which was rightly cancelled. It may be that the respondent No. 2 had by his letter dated 27.6.1995, recommended the appointment of the petitioners but that recommendation could not have been given weight as the case of the petitioners on the post of Assistant Teacher was not governed by appointment under dying in harness rules particularly after having availed the benefits of appointment on compassionate ground under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules earlier.

For all the reasons stated above, the writ petition is dismissed.

No order as to costs.