Shiv Balak Pandey vs State of U.P.and Others

R.K. Agrawal, J.

The petitioner''s father late Ram dularey Pandey was working as Lecturer in mahant Lal Das Inter College, Devgaon, Faizabad (hereinafter referred as the College) which is duly recognized under the provisions of U.P. Intermediate Education Act, 1921. The payment of salary of the staff and employees of the College is being made under the provisions of payment of Salaries Act. Petitioner''s father died on 9.1.1997 while in service. On account of financial hardships, the petitioner, who was having the qualification of M.A., made application for getting appointment on compassionate grounds commensurate with his qualification under the provisions of Dying in Harness Rules, as per Regulations 103 to 107 of ChapterIII of the Regulations framed under the U.P. Intermediate Education Act. However, the District Inspector of Schools vide order dated 17.11.1998 had issued an order giving appointment to the petitioner on class IV post in the College. The petitioner on receipt of the order of appointment, made a representation to the District Inspector of School requesting thereby to appoint on at least a class III post viz. Clerk but no order has been passed on the said application. The petitioner approached this Court by filing the present writ petition which was entertained on 30th March 2000. This Court directed the learned standing counsel to file counter affidavit within four weeks. No counter affidavit has been filed so far though more than two years have passed. The Court is not inclined to grant any further time for filing counter affidavit in view of the facts and circumstances of present case.

Heard Shri D.R. Mishra learned counsel for the petitioner and the learned standing counsel for the respondent.

The contention of the petitioner is that the petitioner having M.A. Degree, ought to have been given appointment commensurate with his qualification as provided in Regulations 103 to 106 framed under Chapter III of the U.P. Intermediate Education Act and providing a class IV post to the petitioner is in utter disregard to the said regulations. He further submitted that there are Government Orders, which provide that in case the post does not exist or is not vacant, the appointment be made by creating supernumerary post.

On the other hand, the learned counsel for the respondents submitted that the petitioner had been offered appointment on a class IV post which he had accepted, therefore, he is not justified for claiming appointment on the post of class III post.

After hearing the learned counsel for the parties, I find that under Regulation 103 it has been provided that one dependent of deceased employee of the Institution shall be appointed as per his qualification unless otherwise he is found unsuitable otherwise.

It is not in dispute that the petitioner is M.A. Thus he is entitled for being appointed commensurate with his qualification. The action of the District Inspector of Schools in providing Class IV post cannot be said to be in accordance with Regulation 103. So far as the question that he has already been offered Class IV post and, therefore, he cannot claim the appointment commensurate with his qualification, I find that this Court in the case of Sudhakar Srivastava v. Deputy Director of Education (Secondary), 9th Region, Faizabad and others reported in (2000) 1 UPLBEC 890, has held that if a person has opted for a post which was offered to him under compelling circumstances, that will not deprive him from his legal rights.

In view of foregoing discussions, the writ petition succweeds and is allowed. The District Inspector of Schools is directed to reconsider the matter in accordance with law taking into consideration the Regulation 103 and pass appropriate order within two months from the date of filing of a certified copy of this order before him and offer an appointment to the petitioner commensurate with his qualification.

(Petition allowed)