Rajendra Prasad Shukla vs Director of Education (Secondary), and others

I.S Mathur, J.—By this writ petition the petitioner prays for a writ of Mandamus directing the respondents to appoint the petitioner on the post of C.T. Grade teacher which has fallen vacant on account of the death of the petitioner''s father.

I have heard learned counsel for the petitioner and learned counsel for the opposite party no. 3 and also learned standing counsel. The facts are not disputed. The father of the petitioner was working as C.T. Grade teacher in the Intermediate College, Sunderganj, Pratapgarh. He died on 611989. The petitioner moved an application for being appointed in his place. He was not appointed at that time on account of the fact that he did not possess B. Ed. or any other teaching qualification. The petitioner now claims that he has obtained the degree of B.Ed, and has filed a copy of the Marksheet along with rejoinder affidavit. The fact that the petitioner has since acquired this degree is not disputed. Accordingly it is not disputed now that the petitioner possesses the requisite qualification for being appointed as a Teacher in the C.T. Grade.

In Smt. Sushma Gosain and others v. The Union of India and others AIR 1989 SC 1976, the Supreme Court has held as follows:

�We consider that it must be stated unequivocally that in all claims for 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 appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.�

This case was relied upon and followed in subsequent case Smt. Phoolwati v. Union of India AIR 1991 SC 469. In Rajesh Singh v. The Director of Education 1991 (17) ALR 46, this Court has interpreted Rule 5 of the Uttar Pradesh Recruitment of Dependent of Government Servants (Dying in Harness) Rules, 1974 as applied to the educational institutions vide Government Order dated 13981 to the effect that if a person possess the requisite qualification for a particular post, he be appointed on that post. In this case, the Court considered the case in which the petitioners had the requisite qualifications for being appointed in ClassIll posts but was appointed in ClassIV posts. The Court directed that he should be appointed on a post of ClassIll by creating the supernumerary post, if necessary.

The legal position as laid down by the Hon''ble Supreme Court and by this Court thus is that the dependent of an employee is entitled to be appointed, by creating a supernumerary post, if necessary and this should be done forthwith.

Learned counsel for the opposite party No. 3 has submitted that the petitioner was not appointed on the post of G.T. Grade teacher because at the time his father died and he moved an application for appointment but he did not possess the requisite qualification. It is further stated by the learned counsel for the opposite party No. 3 that the opposite party No. 3 shall have no objection to the appointment of the petitioner if there is any vacancy or a post is created in the College. It is further submitted by him that, as the petitioner did not possess the requisite qualification, another person, Shiv Bahadur was appointed in the vacancy under Sec. 18 of the U.P. Secondary Education Service Commission and now there is no vacancy.

Considering legal position noted above and also considering the fact that the petitioner now possesses the requisite qualification it just and proper and requirement of law too that the opposite parties be directed to appoint him on the post of C.T. Grade teacher by creating a supernumerary post if necessary, preferably in the College of Opposite Party No. 3.

The writ petition is accordingly allowed. The opposite parties are directed to appoint the petitioner on the post of Teacher in C.T. grade by creating a supernumerary post, if necessary, in the same College or in any other College in the District. The orders in regard to appointment and the payment of salary tb the petitioner shall be passed within one month of the date a certified copy of this order is produced before the opposite parties. If the supernumerary post is created and the petitioner is appointed against that post, the appointment and post can be adjusted against future vacancies occurring in the institution. The petition is finally disposed of accordingly.