Kumari Farha Naseem v. State of U.P. and

2. It is argued by the learned counsel for the petitioner that claim for appointment on compassionate ground was rejected on the ground that both father and mother of the petitioner was in employment and after death of one of them, petitioner will be able to maintain her family, hence there was no occasion to provide appointment to the petitioner on compassionate ground. It is further argued that application form was submitted by the petitioner seeking her appointment on compassionate ground in place of her deceased mother, who died on 09.05.2021. It is also argued that at the time of death of her mother, her father was already retired from service on 28.02.2019, hence at the time of death of mother of the petitioner, her father was not in employment. It is further argued that earlier claim for compassionate appointment of petitioner was rejected by the same authority on 16.07.2021 on the ground that married daughter would not fall within the definition of the family and said order was set aside by this Hon'ble Court vide order dated 01.03.2024 passed in Writ-A No. 13869 of 2021 filed earlier by the petitioner. Now while taking altogether different ground, claim of the petitioner has been rejected.

3. Learned counsel for the petitioner also placed reliance upon judgment dated 23.09.2024 passed by this Court in Writ-A No. 13350 of 2024 (Kumari Farha Naseem Versus State of U.P. and 2 others). The aforesaid judgment is extracted below:- "1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no.1, Ms. Akanksha Sharma, learned counsel for the respondents no.2 & 3 and perused the records.

2. The order dated 12.06.2024 passed by the respondent no.3-District Basic Education Officer, Moradabad by which the claim for compassionate appointment of the petitioner has been rejected, is under challenged in the present writ petition.

3. The facts in brief as contained in the writ petition is that mother of the petitioner namely Smt. Shahana Bi while working on the post of Assistant Teacher died on 02.11.2023. After her death petitioner submitted online application for compassionate appointment, copy of which is appended as annexure-5 to the writ petition. It is stated in paragraph 11 of the writ petition that other family members of the petitioner has given no objection certificate along-with notary affidavit in favour of the petitioner before the District Basic District Basic Education Officer, Moradabad/respondent no.3 in which they have stated that if the appointment is offered to the petitioner they have no objection.

4. It is argued by counsel for the petitioner that wholly illegally without considering relevant aspect of the matter claim for compassionate appointment has been rejected by the District Basic Education Officer, Moradabad/respondent no.3 vide its order dated 12.06.2024 on the following grounds (1) the sisters of the petitioner are working as Assistant Teacher but their marital status is not on record (2) petitioner's father was retired employee and getting pension, hence petitioner has no financial stress.

5. It is stated in paragraph 13 of the writ petition that father of the petitioner namely Nasim Ahmad was working in the District Court, Sambhal at Chandausi, who retired from service on 30.10.2018 after attaining age of superannuation and is getting pension, so there is no dispute about the employment of the petitioners' father prior to death of her mother hence impugned order passed by the respondent no.3 is not sustainable in the eyes of law. In so far as second ground taken regarding marital status of the sisters of the petitioner is concerned, it is stated that both the sisters were married prior to death of their mother and enquiry in this regard was conducted by the authorities in which it is found that they have been married prior to death of their mother. It is further argued that in case sisters of the petitioner are working somewhere else it will not effect the consideration of the appointment of petitioner on compassionate ground. He placed reliance upon judgement and order dated 09.02.2016 passed in Special Appeal Defective No.73 of 2016 (Kr. Vanshika Nigam Vs. State of U.P. and 3 others) Neutral Citation No. - 2016:AHC:24233-DB. The order dated 09.02.2016 reads as follows :- "The mother of the appellant was a Staff Nurse employed in a government hospital. It is not in dispute that she died in harness on 22 February 2014. The appellant sought compassionate appointment, but her application was rejected by the Chief Medical Superintendent on 11 May 2015 on the ground that the appellant did not fall within the purview of the Uttar Pradesh Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974. No specific reason was adduced in the order of the Chief Medical Superintendent as to why the appellant did not fulfill the requirements of the Rules of 1974. The learned Single Judge has proceeded on the basis that since the father of the appellant is a retired employee and is alive, this would be deemed to mean that the appellant is dependent upon her father. We are not in agreement with the view which has been expressed by the learned Single Judge. An inference to the effect that the appellant is dependent upon her father cannot be drawn merely on the basis that her father is alive. During the course of the hearing, it is an agreed position that the father of the appellant was a Class-III employee in the Nagar Nigam and he has since retired and is in receipt of the pension. The adequacy of the means and resources available with the father and the issue of dependency have to be considered by the competent authority. The order of the competent authority was clearly a non-speaking order. Hence, the learned Single Judge ought to have remanded the proceedings back to the competent authority for fresh consideration after due consideration of all the relevant facts and circumstances. We, accordingly, allow the special appeal and set aside the impugned order dated 23 November 2015. We direct the competent authority to reconsider the application submitted by the appellant after duly keeping in mind all the relevant circumstances as mandated by the Rules of 1974. The special appeal is, accordingly, disposed of. There shall be no order as to costs."

6. He further placed reliance upon a judgement and order dated 09.11.2021 passed in Writ A No.14123 of 2021 (Shobhit Saxena Vs. State of U.P. and 2 others) Neutral Citation No. - 2021:AHC:132764. He also placed reliance upon the order dated 26.07.2024 passed in Writ A No.8787 of 2024 (Pramod Kumar Vs. State of U.P. and 2 others) Neutral Citation No. - 2024:AHC:120155.

7. From perusal of the record, it is clear that the claim for compassionate appointment of the petitioner was rejected on two grounds, namely (1) the sisters of the petitioner are working as Assistant Teacher but their marital status is not on record (2) petitioner's father was retired employee and getting pension hence petitioner has no financial stress.

8. From perusal of the record as well as the law laid down by this Court in the case of Kr. Vanshika Nigam (supra), both the aforesaid grounds are not sustainable in the eyes of law.

9. In this view of the matter, the order dated 12.06.2024 passed by the District Basic Education Officer, Moradabad/respondent no.3 is liable to be set aside and the same is hereby set aside.

10. The respondent no.3 is directed to pass fresh order strictly in accordance with law most expeditiously and preferably within a period of six weeks from the date of production of certified copy of this order.

4. Taking into consideration the fact, on 06.01.2025 this Court passed following order:- "1. Order dated 12.09.2024 passed by respondent no. 2/District Basic Education Officer, Jalaun is under challenge in the present petition.

2. Learned counsel for the petitioner placed reliance upon the judgment and order dated 23.09.2024 passed in Writ A No. 13350 of 2024 (Kumari Farha Naseem Vs. State of U.P. and 2 Others).

3. Though the instructions dated 04.01.2025 filed under the signatures of District Basic Education Officer, District Jalun has been placed before this Court by Sri Krishna Kumar Chand, learned counsel appearing on behalf respondent today, the same is taken on record but nothing has been stated in the aforesaid instructions that whether the ratio of the aforesaid judgment will apply in the case of the petitioner or not.

4. In this view of the matter, as prayed by Sri Krishna Kumar Chand, learned counsel appearing on behalf of respondents a week's time is granted to file a personal affidavit of District Basic Education Officer, Jalaun stating therein that whether the ratio of the aforesaid judgment will apply in the case of the petitioner or not.

5. Put up this case as fresh on 16th January, 2025.

5. Perusal of personal affidavit filed on behalf of the respondent no.3, nothing has been stated in the entire personal affidavit that whether the ratio of judgment passed by this Court in the case of Kumari Farha Naseem (supra) will apply in the present case or not?

6. Now again altogether different view has been taken in the counter affidavit filed by respondent no.3 that since petitioner possess B.Ed degree and since B.Ed degree has been declared invalid for appointment of assistant teacher by Hon'ble Apex Court, petitioner cannot be appointed as assistant teacher in primary school. It is further stated that in case petitioner moves an application through OnLine method for appointment on Class-IV post, the respondent will consider the same in accordance with law.

7. In response to the same, it is stated in the rejoinder affidavit filed by the petitioner that claim of petitioner is pending consideration before the authority concerned since 2021, hence law laid down by Hon'ble Apex Court, as taken fit by respondent no.3 in para no.4 of the personal affidavit, will not apply insofar as appointment of the petitioner.

8. Heard Sri Kaml Kumar Kesherwani, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and perused the record.

9. It appears from the perusal of record that earlier claim of the petitioner for compassionate appointment has been rejected vide order dated 16.07.2021 on the ground that married daughter would not fall within the definition of the family. Aggrieved against the order dated 16.07.2021, petitioner preferred Writ-A No. 9803 of 2021, which was allowed vide order dated 11.08.2021, and the respondent concerned was directed to take fresh decision keeping in view the judgment of this Court in the case of Smt. Vimla Srivastaa Versus State of.P. and another, 2016(1) ADJ 21 (DB). In compliance of the order dated 11.08.2021, again claim of the petitioner for compassionate appointment was rejected vide order dated 04.09.2021 passed by the District Basic Education Officer on the ground that since both father and mother of the petitioner are in Government service, she is not entitled for the same. Aggrieved against the order dated 04.09.2021, petitioner filed Writ-A No. 13869 of 2021, which was disposed of vide order dated 01.03.2024, and this Hon'ble Court while setting aside the order dated 04.09.2021 directed the authority concerned to decide the claim of the petitioner for compassionate appointment in light of judgment passed by Hon'ble Supreme Court in State of West Bengal Versus Debabrata Tiwari and others, 2023 SCC OnLine SC 219. Now her claim has again been rejected vide judgment and order dated 12.05.2024 on the same ground that both mother and father of the petitioner are in Government service.

10. After the present writ petition was entertained and order dated 06.01.2025 was passed by this Hon'ble Court as quoted above, now a different view has been taken by respondent no.3 in the counter affidavit.

11. It is unfortunate that despite order passed by this Hon'ble Court, same has not been relied/answered by respondent no.3 in his personal affidavit.

12. The Court is of the prima facie opinion that respondent no.3 is not fit enough to hold the post of District Basic Education Officer, Jalaun.

13. In this view of the matter, District Basic Education Officer, Jalaun is directed to appear before this Court along with proper explanation that why contempt proceeding should not be drawn against him and why matter should not be relegated to the State Government for taking disciplinary proceedings against him for passing such kind of order.

14. List this case on 27.02.2025.

15. Registrar (Compliance) of this Court is directed to communicate about this order in writing to respondent no.3- District Basic Education Officer, Jalaun through Chief Judicial Magistrate, Jalaun. Apart from the same, Sri Krishna Kumar Chand, learned counsel appearing on behalf of the respondent no.3 will also communicate about this order in writing to respondent no.3. Order Date :- 14.2.2025 T.S.

2. It is argued by the learned counsel for the petitioner that claim for appointment on compassionate ground was rejected on the ground that both father and mother of the petitioner was in employment and after death of one of them, petitioner will be able to maintain her family, hence there was no occasion to provide appointment to the petitioner on compassionate ground. It is further argued that application form was submitted by the petitioner seeking her appointment on compassionate ground in place of her deceased mother, who died on 09.05.2021. It is also argued that at the time of death of her mother, her father was already retired from service on 28.02.2019, hence at the time of death of mother of the petitioner, her father was not in employment. It is further argued that earlier claim for compassionate appointment of petitioner was rejected by the same authority on 16.07.2021 on the ground that married daughter would not fall within the definition of the family and said order was set aside by this Hon'ble Court vide order dated 01.03.2024 passed in Writ-A No. 13869 of 2021 filed earlier by the petitioner. Now while taking altogether different ground, claim of the petitioner has been rejected.

3. Learned counsel for the petitioner also placed reliance upon judgment dated 23.09.2024 passed by this Court in Writ-A No. 13350 of 2024 (Kumari Farha Naseem Versus State of U.P. and 2 others). The aforesaid judgment is extracted below:- "1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no.1, Ms. Akanksha Sharma, learned counsel for the respondents no.2 & 3 and perused the records.

2. The order dated 12.06.2024 passed by the respondent no.3-District Basic Education Officer, Moradabad by which the claim for compassionate appointment of the petitioner has been rejected, is under challenged in the present writ petition.

3. The facts in brief as contained in the writ petition is that mother of the petitioner namely Smt. Shahana Bi while working on the post of Assistant Teacher died on 02.11.2023. After her death petitioner submitted online application for compassionate appointment, copy of which is appended as annexure-5 to the writ petition. It is stated in paragraph 11 of the writ petition that other family members of the petitioner has given no objection certificate along-with notary affidavit in favour of the petitioner before the District Basic District Basic Education Officer, Moradabad/respondent no.3 in which they have stated that if the appointment is offered to the petitioner they have no objection.

4. It is argued by counsel for the petitioner that wholly illegally without considering relevant aspect of the matter claim for compassionate appointment has been rejected by the District Basic Education Officer, Moradabad/respondent no.3 vide its order dated 12.06.2024 on the following grounds (1) the sisters of the petitioner are working as Assistant Teacher but their marital status is not on record (2) petitioner's father was retired employee and getting pension, hence petitioner has no financial stress.

5. It is stated in paragraph 13 of the writ petition that father of the petitioner namely Nasim Ahmad was working in the District Court, Sambhal at Chandausi, who retired from service on 30.10.2018 after attaining age of superannuation and is getting pension, so there is no dispute about the employment of the petitioners' father prior to death of her mother hence impugned order passed by the respondent no.3 is not sustainable in the eyes of law. In so far as second ground taken regarding marital status of the sisters of the petitioner is concerned, it is stated that both the sisters were married prior to death of their mother and enquiry in this regard was conducted by the authorities in which it is found that they have been married prior to death of their mother. It is further argued that in case sisters of the petitioner are working somewhere else it will not effect the consideration of the appointment of petitioner on compassionate ground. He placed reliance upon judgement and order dated 09.02.2016 passed in Special Appeal Defective No.73 of 2016 (Kr. Vanshika Nigam Vs. State of U.P. and 3 others) Neutral Citation No. - 2016:AHC:24233-DB. The order dated 09.02.2016 reads as follows :- "The mother of the appellant was a Staff Nurse employed in a government hospital. It is not in dispute that she died in harness on 22 February 2014. The appellant sought compassionate appointment, but her application was rejected by the Chief Medical Superintendent on 11 May 2015 on the ground that the appellant did not fall within the purview of the Uttar Pradesh Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974. No specific reason was adduced in the order of the Chief Medical Superintendent as to why the appellant did not fulfill the requirements of the Rules of 1974. The learned Single Judge has proceeded on the basis that since the father of the appellant is a retired employee and is alive, this would be deemed to mean that the appellant is dependent upon her father. We are not in agreement with the view which has been expressed by the learned Single Judge. An inference to the effect that the appellant is dependent upon her father cannot be drawn merely on the basis that her father is alive. During the course of the hearing, it is an agreed position that the father of the appellant was a Class-III employee in the Nagar Nigam and he has since retired and is in receipt of the pension. The adequacy of the means and resources available with the father and the issue of dependency have to be considered by the competent authority. The order of the competent authority was clearly a non-speaking order. Hence, the learned Single Judge ought to have remanded the proceedings back to the competent authority for fresh consideration after due consideration of all the relevant facts and circumstances. We, accordingly, allow the special appeal and set aside the impugned order dated 23 November 2015. We direct the competent authority to reconsider the application submitted by the appellant after duly keeping in mind all the relevant circumstances as mandated by the Rules of 1974. The special appeal is, accordingly, disposed of. There shall be no order as to costs."

6. He further placed reliance upon a judgement and order dated 09.11.2021 passed in Writ A No.14123 of 2021 (Shobhit Saxena Vs. State of U.P. and 2 others) Neutral Citation No. - 2021:AHC:132764. He also placed reliance upon the order dated 26.07.2024 passed in Writ A No.8787 of 2024 (Pramod Kumar Vs. State of U.P. and 2 others) Neutral Citation No. - 2024:AHC:120155.

7. From perusal of the record, it is clear that the claim for compassionate appointment of the petitioner was rejected on two grounds, namely (1) the sisters of the petitioner are working as Assistant Teacher but their marital status is not on record (2) petitioner's father was retired employee and getting pension hence petitioner has no financial stress.

8. From perusal of the record as well as the law laid down by this Court in the case of Kr. Vanshika Nigam (supra), both the aforesaid grounds are not sustainable in the eyes of law.

9. In this view of the matter, the order dated 12.06.2024 passed by the District Basic Education Officer, Moradabad/respondent no.3 is liable to be set aside and the same is hereby set aside.

10. The respondent no.3 is directed to pass fresh order strictly in accordance with law most expeditiously and preferably within a period of six weeks from the date of production of certified copy of this order.

4. Taking into consideration the fact, on 06.01.2025 this Court passed following order:- "1. Order dated 12.09.2024 passed by respondent no. 2/District Basic Education Officer, Jalaun is under challenge in the present petition.

2. Learned counsel for the petitioner placed reliance upon the judgment and order dated 23.09.2024 passed in Writ A No. 13350 of 2024 (Kumari Farha Naseem Vs. State of U.P. and 2 Others).

3. Though the instructions dated 04.01.2025 filed under the signatures of District Basic Education Officer, District Jalun has been placed before this Court by Sri Krishna Kumar Chand, learned counsel appearing on behalf respondent today, the same is taken on record but nothing has been stated in the aforesaid instructions that whether the ratio of the aforesaid judgment will apply in the case of the petitioner or not.

4. In this view of the matter, as prayed by Sri Krishna Kumar Chand, learned counsel appearing on behalf of respondents a week's time is granted to file a personal affidavit of District Basic Education Officer, Jalaun stating therein that whether the ratio of the aforesaid judgment will apply in the case of the petitioner or not.

5. Put up this case as fresh on 16th January, 2025.

5. Perusal of personal affidavit filed on behalf of the respondent no.3, nothing has been stated in the entire personal affidavit that whether the ratio of judgment passed by this Court in the case of Kumari Farha Naseem (supra) will apply in the present case or not?

6. Now again altogether different view has been taken in the counter affidavit filed by respondent no.3 that since petitioner possess B.Ed degree and since B.Ed degree has been declared invalid for appointment of assistant teacher by Hon'ble Apex Court, petitioner cannot be appointed as assistant teacher in primary school. It is further stated that in case petitioner moves an application through OnLine method for appointment on Class-IV post, the respondent will consider the same in accordance with law.

7. In response to the same, it is stated in the rejoinder affidavit filed by the petitioner that claim of petitioner is pending consideration before the authority concerned since 2021, hence law laid down by Hon'ble Apex Court, as taken fit by respondent no.3 in para no.4 of the personal affidavit, will not apply insofar as appointment of the petitioner.

8. Heard Sri Kaml Kumar Kesherwani, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and perused the record.

9. It appears from the perusal of record that earlier claim of the petitioner for compassionate appointment has been rejected vide order dated 16.07.2021 on the ground that married daughter would not fall within the definition of the family. Aggrieved against the order dated 16.07.2021, petitioner preferred Writ-A No. 9803 of 2021, which was allowed vide order dated 11.08.2021, and the respondent concerned was directed to take fresh decision keeping in view the judgment of this Court in the case of Smt. Vimla Srivastaa Versus State of.P. and another, 2016(1) ADJ 21 (DB). In compliance of the order dated 11.08.2021, again claim of the petitioner for compassionate appointment was rejected vide order dated 04.09.2021 passed by the District Basic Education Officer on the ground that since both father and mother of the petitioner are in Government service, she is not entitled for the same. Aggrieved against the order dated 04.09.2021, petitioner filed Writ-A No. 13869 of 2021, which was disposed of vide order dated 01.03.2024, and this Hon'ble Court while setting aside the order dated 04.09.2021 directed the authority concerned to decide the claim of the petitioner for compassionate appointment in light of judgment passed by Hon'ble Supreme Court in State of West Bengal Versus Debabrata Tiwari and others, 2023 SCC OnLine SC 219. Now her claim has again been rejected vide judgment and order dated 12.05.2024 on the same ground that both mother and father of the petitioner are in Government service.

10. After the present writ petition was entertained and order dated 06.01.2025 was passed by this Hon'ble Court as quoted above, now a different view has been taken by respondent no.3 in the counter affidavit.

11. It is unfortunate that despite order passed by this Hon'ble Court, same has not been relied/answered by respondent no.3 in his personal affidavit.

12. The Court is of the prima facie opinion that respondent no.3 is not fit enough to hold the post of District Basic Education Officer, Jalaun.

13. In this view of the matter, District Basic Education Officer, Jalaun is directed to appear before this Court along with proper explanation that why contempt proceeding should not be drawn against him and why matter should not be relegated to the State Government for taking disciplinary proceedings against him for passing such kind of order.

14. List this case on 27.02.2025.

15. Registrar (Compliance) of this Court is directed to communicate about this order in writing to respondent no.3- District Basic Education Officer, Jalaun through Chief Judicial Magistrate, Jalaun. Apart from the same, Sri Krishna Kumar Chand, learned counsel appearing on behalf of the respondent no.3 will also communicate about this order in writing to respondent no.3. Order Date :- 14.2.2025 T.S.