Pramod Kumar Shukla vs State of U.P. and Others

Aloke Chakrabarti, J.—The father of the Petitioner, Principal of National Intermediate College, Bharwari, district Allahabad, died on 30.4.1987 while in service. The Petitioner, who is a dependent of the deceased father applied for appointment on compassionate ground and was appointed as Clerk in the College under the dying-in-harness Rules on 2.5.1988 and since then is working on the said post in the college and the Rules were amended by Notification dated 2.2.1995 providing that the dependent of an employee dying-in-harness can be appointed as Assistant Teacher. Having eligibility and qualification, the Petitioner submitted application on 24.4.1995 for appointment on the post of Assistant. Teacher in L. T. grade to the District Inspector of Schools, Allahabad. The Committee of Management of the Institution passed resolution all recommended appointment of the Petitioner on the post of Assistant Teacher in L. T. grade and the same was sent to the District Inspector of Schools for approval. After repeated reminders, the District Inspector of Schools passed order dated 7.1.1997 refusing approval of Petitioner''s appointment and his case was rejected, a copy whereof has been annexed at Annexure-No. 8 to the writ petition. Challenging the said order this writ petition was filed.

As only a question of law has been raised as to whether the Government Order dated 2.2.1995 extends a right to the Petitioner to be appointed as Assistant Teacher in L. T. grade. Learned Additional Chief Standing Counsel for Respondent Nos. 1 to 4 agreed to final disposal of the writ petition without filing a counter-affidavit. As the Commit tee of Management of the institution, the Respondent No. 5 has already passed resolution in favour of the Petitioner does not seek relief against the said Respondent. Therefore, the parties agreed to final disposal at this stage.

Regulations 101 to 107 were introduced in the Regulation framed under the U.P. Intermediate Education Act, 1921 by Notification dated 30.7.1992. Regulation 102 of the aforesaid Regulation provided for compassionate appointment in respect of non-teaching posts in case any member of teaching or non-teaching staff of recognised aided institution died in harness and dependent candidate for such compassionate appointment was 18 years of age or more and was having requisite educational qualification and otherwise fit for such appointment.

By aforesaid notification dated 2.2.1995 (Annexure No. 1 to the writ petition), the aforesaid Regulation 103 was amended. The relevant portion of such amendment provided for appointment in the post of Assistant Teacher in L. T. grade or in the post of Lecturer or in the post of non-teaching post depending on the educational and training qualification of the dependent of the deceased. As regards the aforesaid amendment, there is no dispute between the parties herein.

Dispute has been raised in respect of the right of the Petitioner as to whether in the writ petition on the basis of provisions contained in the Note appended to the said Regulation 103 which provided that the said Regulation would be applicable in respect of those employees whose death occurred on or after 1.1.1981.

Learned Counsel for the Petitioner relied on the aforesaid Note to Regulation 103 and contended that the same permitted appointment of the Petitioner in the post of Assistant Teacher in L. T. grade as the Petitioner is having due qualification for such post and the death of Petitioner''s father took place after 1.1.1981.

Learned Counsel for the Petitioner contends that the said Note makes the provision of Regulation 102 applicable in the case of employees who died on or after 1.1.1981 and the said provision apparently is retrospective in operation and the Petitioner having been covered by the said provision, is entitled to such appointment to the post of Assistant Teacher in L. T. grade. It is stated that when the Petitioner was given appointment in the post of clerk on 2.5.1988, the aforesaid amended provision of Regulation 102 was not available and as such the appointment could not be made on the post of Assistant Teacher. It is stated that in the circumstances then prevailing, the Petitioner Joined the post of clerk as he was not having any other alternative remedy. Now amended provision of Regulation 103 having been made retrospective the Petitioner is entitled to relief as prayed for in this writ petition.

Learned Counsel for the Petitioner relied on the judgment in Civil Misc. Writ Petition No. Nil of 1993 Navin Kumar Upadhyay v. Director of Education, decided by this Court on 17.5.1993 holding that the dependent of a deceased having due qualification is entitled to get appointment in Class III post and appointing him against a Class IV post in spite of his having qualification was illegal. Such finding was arrived at upon an interpretation of Regulation 103 as it then stood providing for compassionate appointment only against non-teaching posts. It is stated by the learned Counsel for the Petitioner that the said judgment was affirmed in the SLP No. 18247 of 1993 by order dated 17.12.1993.

Mr. Pushpendra Singh, learned Additional Chiefs Standing Counsel for the Respondent Nos. 1 to 4 contended that once the Petitioner was appointed in the post of Clerk on compassionate ground, the process came to an end and there cannot be any further appointment on compassionate ground on the basis of aforesaid notification dated 2.2.1995. In support of such contention learned Additional Chief Standing Counsel relied on the law decided in the case of State of Rajasthan Vs. Umrao Singh, and State of Bihar and others etc. Vs. Samsuz Zoha etc., , relying on the aforesaid law it has been contended by the Respondents that the Petitioner is not entitled to the relief as prayed for by him. Learned standing counsel for the Respondents also relied on a copy of the judgment produced in the case of Gajendra Kumar Sharma v. State of U.P. and Ors. Civil Misc. Writ Petition No. 4647 of 1996. decided on 6.2.1996.

Learned Additional Chief Standing Counsel also referred to the letter dated 16.8.1996 issued by the Government of Uttar Pradesh to the Education Director settling the principle to be followed in view of the aforesaid amendment by notification dated 2.2.1995.

After considering the contentions of the respective parties and considering the Regulation 103 as amended. I find that the said amendment provided for appointment on compassionate ground also in the post of Assistant Teacher in L. T. grade and Lecturers. The Note appended to the said Regulation makes it clear that the said Regulation was to be applied in the case of employees who died on or after 1.1.1981. But, a thorough reading of the said Regulation and the Note appended thereto does not indicate that it will also apply in case of a dependent of an employee dying-in-harness when such dependent has already been given appointment in a non-teaching post as per the earlier prevailing Regulation. The Note appended to the said Regulation 103 only indicates that the said Regulation would apply in respect of those cases where the matter of compassionate appointment is still pending and the death occurred on 1.1.1981 or thereafter. Apparently, the said cut off date was fixed as the Government Order providing for compassionate appointment for the first time, was issued on 1.1.1981. Therefore, there may be proceeding pending in any Court of law or before any appropriate authority wherein a claim for compassionate appointment has been made on the basis of law entitling any dependent to such appointment. The contention of the Petitioner that any candidate who has already been appointed in terms of the earlier prevailing Regulation 103 against a non-teaching post may also raise a claim in a teacher''s post, if the candidate has qualification for such post in view of the expression used in the Note, is not acceptable, as the law in this connection has been settled in various cases. In this connection observation of the Apex Court made in the aforesaid case of State of Rajasthan v. Umrao Singh (supra) is relevant and the same runs as follows:

He accepted the appointment as L.D.C. Therefore, right to be considered for appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of ''endless compassion''.

The case of Naveen Kumar Upadhyay (supra) does not support the contention of the Petitioner as in the said case, the Court was considering the correctness of the appointment itself on an interpretation of Regulation 103 as it then stood. On an interpretation of Regulation 103, it was held by this Court that the appointment could be possible to dependents of employees dying-in-harness in non-teaching posts and such non-teaching posts are of two categories, namely, Class III and Class IV posts. In such background, it was held by this Court that when the candidate is considered for compassionate appointment and he is having due qualification for Class III post, the authorities cannot deprive him of appointment in Class III post by appointing him on any Class IV post. In such background, this Court directed the authority to consider the case of the Petitioner therein for appointment in Class III post. But, in the present case, on the date the appointment was given to the present Petitioner, rules permitted appointment upto Class III post and as such, such appointment was rightly given to the present Petitioner on compassionate ground. Therefore, on application of law, as decided by the Apex Court, the right of the Petitioner has consummated and second consideration for a higher post on the ground of compassionate would not arise. Therefore, the principle applied in the case of Naveen Kumar Upadhyay (supra) will not apply in the case of the Petitioner.

In view of the aforesaid findings, the Petitioner is not entitled to any relief. This writ petition is, therefore, dismissed. There will be no order as to costs.