Dinesh Kumar vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri P.K. Singh, learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 and 2 and Sri Shailendra Kumar Maurya, Advocate holding brief of Sri Pradeep Verma, Advocate, for respondent No. 4. None appeared on behalf of respondent Nos. 3 and 5 despite service of notice, though the case has been called in revised. As requested and agreed by learned counsel for the parties, this case was heard finally and is being decided under the Rules of the Court.

There are three orders, which have given a cause of action to the petitioner and have been assailed in this writ petition. They are the orders dated 14.2.2006 (Annexure 2 to the writ petition); 30.7.2007 (Annexure 3 to the writ petition); and 25.7.2008 (Annexure 1 to the writ petition). All are passed by District Inspector of Schools, Allahabad (hereinafter referred to as "DIOS").

The DIOS vide first impugned order dated 14.2.2006 directed Manager/Principal of Jari Bandhan Inter College, Baijnath Ganj, Gorigon, Allahabad (hereinafter referred to as "College"; to appoint Sri Sunil Kumar Yadav, respondent No. 4, Son of Late Ram Awadh, (Assistant Teacher) working in the College till his death, as "Peon" in the pay scale of Rs. 2250-3200 as a compassionate appointee. The Principal/Manager has been directed to make appointment, as contemplated in Regulation 107, Chapter III Regulations framed under Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921") and send compliance report to the DIOS.

The second order dated 30.7.2007 has been passed by DIOS in purported compliance of this Court''s order dated 28.2.2006, in Writ Petition No. 11251 of 2006, whereby he (DIOS) was required to decide representation of Smt. Sabira Begum, (respondent No. 5 in the present writ petition) in respect to compassionate appointment on Class IV in the College. Therein he (the DIOS) has held that respondent No. 5, Smt. Sabira Begum, is entitled for compassionate appointment being widow and legal heir of a deceased Class IV employees, Late Kallu, working in the College and accordingly directed Principal of the College to appoint her as Class a IV employee in the College.

The third order dated 25.7.2008 (Annexure 1 to the writ petition) has been passed by DIOS pursuant to this Court''s order dated 8.2.2008 in Writ Petition No. 40280 of 2007, filed by present petitioner, earlier, in which DIOS was directed to decide petitioner''s representation objecting compassionate appointment of respondent Nos. 4 and 5. The DIOS, by means of order dated 25.7.2008 has rejected petitioner''s representation.

The facts in brief giving rise to the present dispute are narrated as under:

The College is imparting education upto intermediate classes and is governed by the provisions of Act, 1921, Payment of salary to the staff, teaching and non teaching, both, is governed by the provisions of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as "Act, 1971").

One Kallu, a class IV employee working in the college died on 13.12.2001. After the death of Kallu, her widow Smt. Sabira Begum sought compassionate appointment of one Ali Ahmad (Ali Hasan) stating that he is adopted son. The Principal did not agree probably for the reason that in Muslim Law, there is no concept of adoption and there could not have been an adopted son of an employee who was a Muslim. It is in these circumstances, Smt. Sabira Begum and Ali Ahmad (Ali Hasan), both, came to this Court in Writ Petition No. 29715 of 2003 in which notices were issued at that time but no interim order was passed. The said writ petition was ultimately dismissed vide judgment dated 18.3.2004.

The Principal of College, being Appointing Authority of Class IV employees, sought permission of DIOS for making recruitment and appointment in the aforesaid vacancy, which was granted vide order dated 24.1.2005 (Annexure 4 to the writ petition). While granting permission, DIOS, however, directed that appointment should be made from a candidate belong to either Scheduled Caste or Scheduled Tribe since there are five sanctioned posts in the College and therefore, one would fall within the quota prescribed in SC/ST category.

Consequently, Principal of the College advertised vacancy on 5.2.2005 in daily newspaper "Northern India Patrika" and "Nyayadhish" and after considering various candidates, Selection Committee recommended petitioner for appointment in the aforesaid vacancy. The relevant documents were forwarded to DIOS for his approval which was considered by Regional Level Committee and vide letter dated 20.9.2005 it directed DIOS to take a decision at its own level under the rules and regulations. Consequently, DIOS granted approval vide letter dated 10.10.2005. The petitioner was appointed as a Class IV employee in the College vide appointment letter dated 15.10.2005 issued by Principal of the College. The petitioner belongs to reserved category (SC). Pursuant to the aforesaid appointment, the petitioner joined on 21.10.2005 and has been working since thereafter accordingly.

It appears that Committee of Management preferred a Writ Petition No. 6277 of 2006 stating that vacancy, in which petitioner was appointed, ought to have been filled in, from dependent of deceased employee Kallu i.e. Smt. Sabira Begum, respondent No. 5. The writ petition filed by Committee of Management was dismissed by this Court''s judgment dated 9.5.2007.

The petitioner, however, was not paid salary during pendency of the above writ petition and therefore after dismissal of writ petition, represented before DIOS that since writ petition of management has been dismissed, he should be paid salary. Failing to get any response from DIOS, regarding payment of salary, petitioner came to this Court in writ petition No. 40280 of 2007 which was disposed of vide order dated 8.2.2008 directing DIOS to consider and decide petitioner''s representation regarding payment of salary. Pursuant thereto the DIOS passed the impugned order rejecting petitioner''s representation and also canceling/revoking order dated 10.10.2005 whereby approval was granted to the petitioner''s selection. The DIOS has held that the aforesaid approval was obtained by concealment of material facts and therefore, the said approval was liable to be revoked.

Learned counsel for the petitioner, Sri P.K. Singh, contended that there were five sanctioned posts out of which three were already occupied by Sri Ram Raj, Sri Lalan Prasad and Sri Rajendra Prasad appointed on 8.7.1972, 8.7.1978 and 1.3.1987. There were two vacancies in 2005 when the process of recruitment on Class IV post begun after permission granted by DIOS on 24.1.2005. No claim for compassionate appointment against any of the vacancy in Class IV was pending for consideration at that time. Therefore, recruitment, selection and appointment of petitioner on a Class IV post can neither be said to be illegal nor any material fact was concealed and DIOS has completely misdirected himself by distorting the facts in a mixed up manner. Assailing the appointment of respondent No. 5 in particular, Sri P.K. Singh, Advocate, said that at the time of appointment, she was above the age of 60 years, therefore could not have been appointed at all and her appointment made in 2007 is patently illegal and in flagrant violation of relevant statutory provisions applicable in this regard. So far as Sunil Kumar, respondent No. 4 is concerned, who is alleged to have been appointed on 16.2.2006 or 31.7.2007, it is contended that he was not at all available for appointment when vacancy in question was advertised i.e. in 2005. The petitioner was selected and actually appointed in 2005 therefore, petitioner''s appointment cannot be said to have been vitiated in law for an illegal appointment made subsequently in 2006 or 2007 when there was no vacancy of Class IV in the college. He contended that DIOS, in a wholly illegal and arbitrary manner, has passed the impugned orders and the same are liable to be set aside.

A counter-affidavit has been filed by Principal stating that petitioner''s appointment was made illegally since there was no vacancy. The respondent Nos. 4 and 5 were already appointed vide appointment letters dated 30.7.2007 as a result whereof there was no vacancy in Class IV hence petitioner could not have been appointed. It is further said that before the claim of petitioner, application for compassionate appointment for the benefit of respondent No. 4 was already pending, inasmuch as, his mother Smt. Ganga Devi, Wife of Late Ram Awadh had filed an application on 7.9.2001 requesting for compassionate appointment of respondent No. 4.

Another counter-affidavit has been filed by respondent No. 4 himself stating that his father Ram Awadh, Assistant Teacher, working in the college died in 1999. The respondent No. 4 at that time was minor. His date of birth being 10th July, 1986, vide Annexure 1 to the counter-affidavit of respondent No. 4, he passed High School in June, 2001 and Intermediate in 2003. He attained the age of majority i.e. 18 years on 10th July, 2004 but in anticipation, moved an application on 2nd May, 2004 for claiming appointment on and after 10th July, 2004 as a Class III employee in the College. The application was forwarded to DIOS by Management vide letter dated 31.5.2004.

It is not clear as to when DIOS granted approval and neither order of appointment allegedly issued in 2006 to respondent No. 4 is on record nor otherwise said to have been issued on a particular date but it appears that he was allowed to join and work on 16th February, 2006. The respondent No. 2, however, has mentioned the date of appointment of respondent No. 4 as 16.2.2007.

The respondent Nos. 1 and 2 have also filed counter-affidavit. With respect to the age of appointment of respondent No. 5, in para 13 of counter-affidavit, it has been said that there is a restriction with respect to minimum age but no restriction about maximum age.

In the counter-affidavit of respondent No. 2, however, in para 8 it has been stated that Sri Sunil Kumar, respondent No. 4 was appointed after attaining majority, on 16.2.2007, while respondent No. 5, Smt. Sabira Begum, was appointed by DIOS vide order dated 31.7.2007.

No individual counter-affidavit sworn by respondent No. 5 himself has been filed.

Now coming to first aspect, i.e. on the correctness of appointment of respondent No. 5, I am of the view that it was patently illegal.

It is admitted and evident from the record that respondent No. 5, after the death of her husband Kallu, did not claim any appointment for herself but requested for appointment for her adopted son Ali Ahmad (Ali Hasan). For this purpose she along with Ali Ahmad filed writ petition No. 29715 of 2003 which was ultimately dismissed on 18.3.2004. Therefore, till dismissal of writ petition, no claim was set up by respondent No. 5 for her appointment on compassionate basis after the death of her husband.

Though, respondent Nos. 1 and 2 in para 18 of their counter-affidavit have stated that application was given by respondent No. 5 requesting for compassionate appointment on 7.6.2003 but no such application has been placed on record to show whether it was an application for appointment of her ownself or for the benefit of Ali Ahmad (Ali Hasan) for which purpose respondent No. 5 filed writ petition No. 29715 of 2003. It is also inconceivable, when the aforesaid writ petition was pending before this Court in 2003 and was dismissed on 18.3.2004, what was the occasion for respondent No. 5 to move an application for appointment of herself and if so, when such an application was given by her.

It is no doubt true that respondent No. 5 filed writ petition No. 11251 of 2006 which was disposed of on 28.2.2006 directing DIOS to decide her application for compassionate appointment but in that writ petition also she has not disclosed about her earlier writ petition filed along with Ali Ahmad (Ali Hasan) in which she has sought compassionate appointment for her adopted son Ali Ahmad (Ali Hasan). An order, which was obtained by petitioner in writ petition No. 11251 of 2006 is clearly by concealment of material fact. Come what may but atleast there is nothing on record to show that respondent No. 5 till 15.10.2005, when petitioner was actually appointed by the Principal of the College after approval granted by DIOS, had never moved any application claiming appointment on compassionate basis for herself and therefore, to claim that petitioner could not have been appointed since claim of compassionate appointment of respondent No. 5 was pending consideration before DIOS is clearly incorrect.

So far as claim for compassionate appointment of alleged adopted son is concerned, suffice it to mention that firstly, this claim stood negated after dismissal of writ petition No. 29715 of 2003 and secondly; there is no concept of adoption, recognized in Muslim Law. In absence of any recognition of principle of adoption in Muslim Law there would not have been any occasion to claim that there was any legal heir of the deceased Kallu by way of adopted son available for claiming compassionate appointment and hence request for this behalf was a nullity since its inception.

The petitioner has specifically pleaded and placed on record the documents to show her age. He has specifically stated that Smt. Sabira Begum had crossed the age of 60 years as per the medical certificate issued by Department of Radiology and Ultrasound, MLN Hospital, Allahabad on 9.8.2002. Obviously on the date of appointment in 2007, respondent No. 5 must be around 65 years of age. The averments contained in para 22 of writ petition have not been denied in the counter-affidavit sworn by Principal of College though he has mentioned that he is filing counter-affidavit on behalf of respondent No. 5. In para 12 of counter-affidavit, he simply says that the contents of paras 21, 22 and 23 of the writ petition are not concerned to him. To the same effect is the reply given in the counter-affidavit filed by the respondent No. 4. The respondent No. 5, having not filed any reply by not appearing, has left these pleadings of petitioner uncontroverted.

The respondent Nos. 1 and 2 in a very strange and interesting manner have replied para 22 of writ petition in para 13 of the counter-affidavit by asserting that department has no document relating to the age of respondent No. 5 but for compassionate appointment no limit of maximum age has been prescribed.

This Court finds it interesting that copy of service book of respondent No. 5 has been filed along with counter-affidavit, sworn by Principal of the College, and on pages 16 and 17 thereof date of birth of respondent No. 5 has been mentioned as 3.10.1952. The basis of date of birth is not disclosed anywhere. In the column of signature/thumb impression, respondent No. 5 has put her thumb impression showing that she is not literate at all. Her date of appointment has been mentioned as 31.7.2007.

The averments made in para 22 of writ petition in respect to the age of respondent No. 5 as such have not been contradicted or disputed by any of the respondents. However, from the copy of service book filed along with the counter-affidavit of Principal of the College, it has been shown that her age was about 55 years on the date of her appointment since her date of birth mentioned is 3.10.1952. It thus has to be examined whether in respect to the age, there is any restriction for appointment and whether appointment of petitioner made in 2005 could have vitiated in law for the so called appointment of respondent Nos. 4 and 5, which admittedly are subsequent to the date of appointment of the petitioner.

Now, I would consider validity of appointment of respondent No. 5 in the context of her age. The case set up by official respondents, there is no maximum age prescribed for compassionate appointment hence it can be made at any point of time, at any age.