Nanak Chand Sharma vs State of U.P. and Others

A.P. Sahi, J.—Heard Sri Sushil Chandra Srivastava, learned Counsel for the petitioner, learned Standing Counsel for Respondent Nos. 1, 2 & 5 and Sri Bhim Singh, learned Counsel, for Respondent No. 6.

In view of the nature of submissions advanced and the dispute raised, it is not necessary to issue any notice to Respondent Nos. 3 or 4 in this petition.

The dispute relates to the appointment of Respondent No. 6 on compassionate basis in Mahadevi Ayodhya Nath Girls Inter College, Khurja, district - Bulandshahar. By the impugned order dated 16.9.2009, the Respondent No. 6 has been accommodated in the said institution keeping in view the provisions of Regulations 101 to 106 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921. The institution is admittedly an Intermediate College governed by the aforesaid provisions.

The respondent No. 6 appears to have staked the claim for compassionate appointment which was initially extended to the said respondent against a class III post in SMJEC College, Khurja, district - Bulandshahar. The Management of the said institution raised an objection that the post, against which the Respondent No. 6 has been proposed to be appointed, is to be filled up from amongst the Schedule Caste category candidate and, therefore, the placement of Respondent No. 6 could not be accepted. Accordingly, the District Inspector of Schools, Bulandshahar, passed the impugned order whereby he has accommodated the Respondent No. 6 in the institution of Respondent No. 3.

The petitioner - Nanak Chand Sharma is a class IV employee in Respondent No. 3 - Institution and he contends that in view of the provisions of Regulation 2 of Chapter III of the Regulations framed under the 1921 Act, the petitioner is entitled to be promoted against the solitary post of class-III sanctioned in the institution. The petitioner relies on the decision in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Committee of Management, Maharana Khumbha Higher Secondary School and Devendra Singh Gehlot, , to contend that where there is a single post in a class-III cadre, the same has to be filled up by promotion and not otherwise. It has been submitted that the petitioner fulfils the eligibility criteria for being promoted and, therefore, the said class-III post cannot be filled up by direct recruitment of a compassionate appointee under the impugned order.

Sri Bhim Singh, learned Counsel for Respondent No. 6, relying on the decision of Munna Lal v. Devendra Bahadur Singh Chandel and Ors. 2008 (1) ESC 291 (DB), urged that Respondent No. 6 is not interested in contesting the claim of the petitioner and that he should be accommodated in accordance with the provisions and the law laid down in the case cited above in some other institution against an appropriate post.

Learned Standing Counsel, on the other hand, contends that the District Inspector of Schools has passed the order in accordance with the regulations and, therefore, it is the District Inspector of Schools, who can either modify or rescind the same in the event it is found that the claim of the petitioner is genuine.

Having heard learned Counsel for the parties, it is not disputed that the institution namely Mahadevi Ayodhya Nath girls Inter College, Khurja, Bulandshahar, has a single post of Clerk in the institution. In view of the aforesaid fact, the judgment in the case of Jai Bhagwan Singh (supra) squarely supports the claim of the petitioner and, as such, without examining the aforesaid aspect, the District Inspector of Schools could not have proceeded to accommodate the respondent No. 6 in the said institution. The aforesaid position could not be successfully disputed by the learned Counsel for respondent No. 6 and it is for this reason that a prayer has been made that the respondent No. 6 be suitably accommodated in some other institution.

Learned Standing Counsel has been unable to point out the provisions under which the solitary post available in the institution could be filled up by direct recruitment. In such a situation, there is no necessity of waiting for filing of any further Affidavits and the impugned order dated 16.9.2009 being not in conformity with law deserves to be set aside. Accordingly, the order dated 16.9.2009 is quashed.

The District Inspector of Schools, Bulandshahar, shall proceed to examine the claim of the Respondent No. 6 for being accommodated in any other institution against a suitable post as expeditiously as possible preferably within 6 weeks from the date of production of a certified copy of this order before the said respondent.

With the aforesaid observations, the writ petition is allowed.