Jai Ram Yadav vs State of U.P. and Others

Shri K.N. Tripathi, Sr. Advocate assisted by Shri Neeraj Tripathi appears for the Petitioner. Learned Standing Counsel appears for the State Respondents. Shri Ashok Khare, Sr. Advocate assisted by Shri V.K. Singh appears for Respondent No. 5. With the consent of the parties, we have finally heard the special appeal.

The Petitioner appeared in the selections for the vacant sanctioned post of Asstt. clerk in Janta Inter College, Nagra, Distt. Ballia, after the Committee of Management had requested for prior approval of the District Inspector of Schools to fill up the posts on 1.3.2008 and the District Inspector of Schools gave permission on 29.1.2008. The vacancy on the post was advertised in daily newspapers. The Selection Committee selected the Petitioner for appointment on the post reserved for Other Backward Class person. Before the District Inspector of schools could grant approval for appointment in accordance with the scheme of appointment of Class-III and IV employees under Regulation 101 to 107, under Chapter III of the Regulations made under the U.P. Intermediate Education Act, 1921, the claim of the Respondent No. 5 Shri Santosh Kumar Singh for compassionate appointment was considered by the Court and a direction was issued to the District Inspector of Schools to look into his grievance. He was claiming compassionate appointment on an application made by her mother, on the death of father on 24.5.2007 serving as a Lecturer in the college.

The District Inspector of Schools by his order dated 9.8.2008 signed on 8.8.2008 passed in pursuance to the directions issued by this Court on 13.12.2007 in Writ Petition No. 61157 of 2007 modified his order dated 22.10.2007 to the effect that instead of the offer of Class-IV appointment, which was considered by the Committee constituted under Regulation 105, and for which letter of appointment was issued to Shri Santosh Kumar Singh on compassionate grounds on 1.10.2007, since he was intermediate, he was directed to be appointed as a clerk. Consequently the post of Asstt. Clerk for which the Petitioner-Appellant was selected and the matter of approval was pending, was directed to be filled up.

The Petitioner Appellant filed the writ Petition challenging the order of the District Inspector of Schools dated 9.8.2008 on the ground, that Shri Santosh Kumar Singh-Respondent No. 5 was given compassionate appointment by the District Inspector of Schools in pursuance to the Regulations 102, 104, 105 and 106; he did not choose to accept the appointment as Class-IV employee and relied upon application given by her mother on 10.8.2007 for his appointment as clerk commensurate with her qualification.

Learned Single Judge found that in pursuance to the directions issued by the Court the District Inspector of Schools rightly proceeded to pass the impugned order and since prior approval as required under the Regulations was not given to the appointment of Petitioner-Appellant, he does not have right to object to the modification of the impugned order dated 22.12.2007 by the District Inspector of Schools and the offer to appoint Shri Santosh Kumar Singh-Respondent No. 5 on the vacant post of Asstt. Clerk. The writ Petition was dismissed, giving rise to this intra-court appeal under Chapter VIII Rule 5 of the Rules of the Court.

Shri K.N. Tripathi, learned Counsel for the Petitioner Appellant submits that the rules of appointment of Class-Ill and IV employee contained in Regulation 104 to 107 include Rules of compassionate appointment in Regulation 103, 104, 105 and 106. On the death of the employee in harness, any dependent family member, can be considered for compassionate appointment on the vacancy. Under Rule 105 the application has to be considered by a Committee consisting of District Inspector of Schools as Chairman and Accounts Officer in the office of the District Inspector of Schools, and the District Basic Education Officer as members of the committee. The appointment under Regulation 106 has to be offered commensurate with the educational qualifications. In the present case he submits that the Respondent No. 5 was offered compassionate appointment on Class-IV post after consideration by the Statutory Committee on 1.10.2007. He did not accept the appointment and requested for improving his position by giving him appointment on the vacant post of clerk, and filed a writ Petition No. 61157 of 2007 in which directions were given on 13.12.2007 to consider his grievance. He did not accept the appointment as Class-IV employee and has forfeited his right to be considered for appointment on compassionate ground. Shri K.N. Tripathi submits that in the meantime the Committee of Management requested and was given consent by the DIOS on 29.1.2008; advertised the vacancy on 6.2.2008 and selected the Petitioner for appointment on the post of clerk in open comPetition. The papers of approval are still pending. He submits that in such case the appointment will be deemed to be approved as the DIOS did not communicate the disapproval within two weeks of the submissions of the papers by the Committee of Management.

It is submitted that learned Single Judge has erred in finding that the DIOS could have proceeded to amend the order of compassionate appointment. Shri Tripathi submits that the compassionate appointment has to be considered by the Committee and not by the DIOS. He is the Chairman of the Committee, but has not been given the powers to offer compassionate appointment, on his own.

Shri Ashok Khare on the other hand has defended the judgment of learned Single Judge dated 21.9.2010. He submits that the compassionate appointment of the dependent of the Lecturer can be given on any of the posts including the post of LT Grade teacher, Class-Ill employee and Class-IV employee provided such post is vacant commensurate with his/ her qualification. The discretion in giving compassionate appointment has to be guided by the principles, which include qualifications of the person and the post held by the deceased employee. Shri Ashok Khare submits that the Petitioner Appellant does not have any right to claim appointment as there is no approval to the appointment given by the District Inspector of Schools. He relied upon paragraphs 19 to 22 of the Division Bench Judgment in Jagdish Singh v. State of U.P. and Ors. 2006 (3) ESC 2055 (All) (DB) in which it was held that ''approval'' means approval after completion of the process of selection, and before issuing of the appointment letter to the selected candidates. Regulation 100 to 107 of Chapter 3 of the Regulations made under the Act are quoted as below:

Para 19 to 22 of the judgment in Jagdish Singh (Supra) is quoted as below:

When the prior approval of the Inspector is contemplated in Regulation 101, that prior approval embraces itself an examination of all aspects of the matter including existence of the vacancy, nature of the vacancy whether vacancy is to be filled up by management or it be filled by appointing the dependent of deceased employee who has claimed for appointment under the scheme of the Regulation 101 to 107.

Scheme of Regulations 101 to 107 makes it clear that after receiving an intimation of vacancy, the District Inspector of Schools is empowered to send the application of member of deceased employee, who is entitled for compassionate appointment to the institution, who has to issue appointment letter to such candidate, it is, however, implied in the scheme that in the event there is no candidate entitled for compassionate appointment to fill a particular vacancy, the intimation of which has been received by the District Inspector of Schools, the District Inspector of Schools can direct the appointing authority to fill up vacancy by direct recruitment but even in a case the selection is made by direct recruitment by the Principal/ committee of management, prior approval is required of the District Inspector of Schools before issuing an appointment letter to the selected candidate. Without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. The requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory. The observation of the learned single Judge in the case of Dingur v. District Inspector of Schools, Mirzapur (supra) as quoted above, is also to the effect that approval has to be considered by the District Inspector of Schools after examining the proceeding relating to appointment and after examining as to whether prescribed procedure in a fair manner has been followed or not.

The observation of the learned single Judge in Ram Dhani''s case (supra) that previous approval under Regulation 101 is required to be taken before issuing advertisement for filling up vacancy does not lay down correct law. We, however, make it clear that although prior approval is required from the District Inspector of Schools after completion of process of selection but there is no prohibition in the Principal/Management to seek permission of the District Inspector of Schools for filling up vacancy by direct recruitment. The permission may or may not be granted by the District Inspector of Schools but even if such permission to start the selection process or to issue advertisement is granted that is not akin to prior approval as contemplated under Regulation 101.

In view of the aforesaid, we are of the considered opinion that prior approval contemplated under Regulation 101 is prior approval by the District Inspector of Schools after completion of process of selection and before issuance of appointment letter to the selected candidate.

It has been repeatedly held by the Supreme Court that compassionate appointment is provided to offer immediate financial help to the distressed family. The object of the employment is to tide over immediate financial crisis and to save family of the employee, who has died in harness from penury. The appointment on compassionate ground is a non-meritarian appointment. It only looks into the eligibility, and avoids merits and open comPetition. In Punjab National Bank and Others Vs. Ashwini Kumar Taneja, the Supreme Court observed in paras 6, 7 and 8 as follows:

In Smt. Sushma Gosain and Others Vs. Union of India (UOI) and Others, it was observed that in all claims of 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 appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Smt. Phoolwati Vs. Union of India and Others, and Union of India (UOI) and Others Vs. Bhagwan Singh, In Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependents of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.

In State of U.P. and Others Vs. Paras Nath, it was held that the purpose of providing employment to the dependant of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17th years.

These aspects were highlighted in State of Manipur Vs. Md. Rajaodin, State of Haryana and Another Vs. Ankur Gupta, Haryana State Electricity Board Vs. Naresh Tanwar and Another, and Haryana State Electricity Board and another Vs. Hakim Singh,

We agree with the submissions of Shri Ashok Khare that the discretion to offer compassionate appointment, on the categories of the post namely LT Grade teacher, clerk and Class-IV employee has to be exercised on rational basis. While consideration of saving family from financial distress is the overriding consideration, the appointment should be offered taking into account the post held by the deceased employee, the qualification and eligibility of the dependent but once such a discretion has been exercised by the competent committee constituted under Rule 105 with District Inspector of Schools as Chairman, it is not open to the Inspector to modify the offer on the ground that the dependent possesses a higher qualification, and was entitled to a higher post. The Inspector on his own could not have changed the category of appointment from Class-IV to Class-Ill. He could not have modified his order on his own. In the meantime the same Inspector had given consent to fill up the vacant Class-Ill post by direct appointment. The Committee of Management advertised the post and subjected it to appointment. The Petitioner-Appellant was selected and the matter of approval of his appointment is pending with the DIOS. It cannot be said that the Petitioner does not get any right from his selection in the valid process of appointment.

In balancing the claim of the Petitioner based on his selections in the regular appointment by open comPetition, for which the matter of approval of selection is pending with the DIOS and the rights of Shri Santosh Kumar Singh-Respondent No. 5 to claim change of category of compassionate appointment, we are of the opinion that the discretion of the District Inspector of Schools was based on legally wrong considerations. He did not have authority to change category of employment of Respondent No. 5, on his own without referring the matter to the Committee, and in the meantime since the Appellant''s rights, which may not have matured but can still be considered as legitimate expectation after participating in the selection and recommendation for approval, could not be defeated. Between the two the scales of justice should tilt in favour of the person, who has succeeded in open comPetition to the post of clerk. The Respondent No. 5 has already secured offer of compassionate appointment as Class-IV post. The Inspector should have taken into consideration that a compassionate appointment is in exception to the general rule.

We, therefore, allow the special appeal, set aside the judgment of learned Single Judge dated 21.9.2010 as well as the impugned order of the DIOS dated 9.8.2008. The DIOS will consider the matter of approval of the appointment of the Petitioner-Appellant independent of the right of Shri Santosh Kumar Singh-Respondent No. 5. It will be open to Shri Santosh Kumar Singh-Respondent No. 5, to join on the Class-IV post on which he was offered appointment by the Statutory Committee communicated by the DIOS to the Committee of Management of the College.