High Court
Case Details
Court No. - 33 Case :- WRIT - A No. - 8596 of 2022 Petitioner :- Ahmad Raza Khan Respondent :- State of U.P. and Another Counsel for Petitioner :- Sanjeev Singh Counsel for Respondent :- C.S.C.,Daya Ram
Legal Reasoning
Hon'ble Ashutosh Srivastava,J. Heard Sri Sanjeev Singh, learned counsel for the petitioner, learned Standing Counsel for the State-Respondent No.1 and Sri Daya Ram, learned counsel for the Respondent No.2. By means of the present writ petition, the petitioner has prayed for issuance of a writ of mandamus commanding the respondents to consider the claim of the petitioner for grant of compassionate appointment on suitable Class-III post in view of the order dated 03.12.2012 passed in Writ (A) No.62494 of 2012. A further prayer for issuance of a writ of certiorari calling for the records and quashing the impugned order dated 14.07.2022 passed by the Respondent No.2, the District Basic Education Officer, Amroha, whereby the claim of the petitioner for compassionate appointment has been rejected. Learned counsel for the petitioner submits that the father of the petitioner was working as Assistant Teacher and he died-in- harness on 17.07.2011. After the death of his father, the petitioner was appointed as untrained Assistant Teacher in Primary School on 27.08.2011 under the Dying-in-Harness Rules, 1974. After one year of working as Assistant Teacher, vide order dated 20.07.2012 passed by the Respondent No.2, District Basic Education Officer, Jyotiba Phoole Nagar, the services of the petitioner were dispensed with on the ground that the petitioner was not eligible for being appointed as Assistant Teacher. Being aggrieved the petitioner filed Writ (A) No.62494 of 2012, which was decided on 03.12.2012 along with connected Writ (A) No.33828 of 2012 by a common judgment, declining the relief as prayed while holding the order under challenge of dismissal from service as correct with further observation that the case of all the petitioners be considered against existing Class III/IV vacancies except qua Class III vacancies, which are to be filled up by way of promotion preferably within a period of two months. Against dismissal of the writ petition, the petitioner preferred Special Appeal (Defective) No.4 of 2013 which was also dismissed vide judgment and order dated 09.09.2021 holding that even compassionate appointment cannot be given de-hors the statutory provisions only in reference to the Government Order dated 4th September, 2000. The administrative order cannot stand in conflict with statutory provisions. Against the dismissal of the Special Appeal the petitioner preferred Special Leave to Appeal which was also dismissed vide order dated 17.01.2022 as withdrawn. After dismissal of the claim against the removal for service having decided against the petitioner upto Hon'ble Supreme Court the petitioner filed representation before the Respondent No.2, District Basic Education Officer, on 18.01.2022 with the request to grant him compassionate appointment on Class III post in view of the observation passed in his Writ (A) No.62494 of 2012 decided on 03.12.2012. Learned counsel for the petitioner further submits that in view of the order of the Writ Court dated 08.06.2022, the Respondent No.2 vide order dated 14.07.2022 has rejected the claim for compassionate appointment on the ground that the application has been made after 10 years as the same could have been granted only within a period of five years as his father died in harness on 17.07.2011. Sri Sanjeev Singh submits that the delay occurred due to the fact that the matter travelled upto the Hon'ble Supreme Court. A challenge to the order dated 14.07.2022 has also been laid by amending the writ petition. Learned counsel for the petitioner has placed reliance on a judgment of the Coordinate Bench of this Court passed in Writ (A) No.18166 of 2021 (Krishna Prakash Singh Vs. State of U.P. & 2 others) and Vishal Saini Vs. State of U.P. and others, 2021 (3) ADJ 74 (LB). It is contended by the learned counsel for the petitioner that pursuant to the direction of the Court dated 15.12.2021 passed in Writ (A) No.18166 of2021 (Krishna Prakash Singh Vs. State of U.P. & 2 others) the petitioner of the said writ petition moved the Basic Education Officer, Hathras, and his claim for compassionate appointment was duly considered and appointment was given on Class-III posts but the claim of the petitioner has been rejected. Reliance upon the decision rendered by this Court in the case of Vishal Saini (Supra) has been placed to contend that the District Basic Education Officer, Jyotiba Phoole Nagar did not have the authority to reject the application of the petitioner on the ground of delay and the only course open for the District Basic Education Officer was to refer the matter to the State Government for consideration of the application of the petitioner for compassionate appointment. I have heard learned counsel for the petitioner as also the learned Standing Counsel representing the Respondent No.1 and Sri Daya Ram, learned counsel representing the Respondent No.2 and have perused the record.
Decision
On the perusal of the record I find that the petitioner has unnecessarily suffered for non-consideration of his case for suitable employment on compassionate basis. The father of the petitioner is stated to have died in harness on 17.07.2011. Consequent to the death of his father the petitioner was appointed as an untrained Assistant Teacher on compassionate grounds on 27.08.2011. The appointment on compassionate ground was however dispensed with by order dated 20.07.2012 on the ground that untrained Assistant Teacher could not be appointed on compassionate grounds dehors the U.P. Right of Children to Free and Compulsory Education Rules, 2011, which came into effect from 27.07.2011. The petitioner was well within his rights to challenge the order dispensing with his services as untrained Assistant Teacher. The order dispensing with the services of the petitioner as Assistant Teacher was upheld by this Court vide order dated 25.07.2012 passed in Writ (A) No.33828 of 2012 filed by the petitioner. However, while dismissing the writ petition he Court directed that the case of the petitioner would be considered against existing Class - III/IV vacancies except qua Class – III vacancies which were to be filled up by way of promotion within two months. Further challenge to the order dispensing with the services as Assistant Teacher by the petitioner failed upto the Apex Court with the rejection of the Special Leave Petition vide order dated 17.01.2022. In the wake of the above, factual scenario the Court finds force in the submissions of the learned counsel for the petitioner that the claim of the petitioner for appointment as Assistant Teacher having been turned down his claim for appointment on suitable Class -III/IV post ought to have been considered by the respondents particularly in the view of the directions of this Court vide order dated 03.12.2012 passed in Writ Petition No.33828 of2012 and the claim for compassionate appointment could not be rejected outright by the impugned order holding it to have been filed beyond the period of 5 years from the death of the deceased employee. The Court also finds substance in the submission of the learned counsel for the petitioner that the District Basic Education Officer, Jyotiba Phoole Nagar, having opined that the application of the petitioner was being filed beyond 5 years of the death ought not to have proceeded to reject the same on that count herself and ought to have referred the matter to the State Government which is the Competent Authority to deal with applications filed beyond 5 years under the Dying-in-Harness Rules, 1974. Consequently, the writ petition is allowed. The impugned order dated 14.07.2022 passed by the District Basic Education Officer, District Amroha, is set aside. The District Basic Education Officer, Amroha, shall now proceed to pass orders afresh on the representation of the petitioner within two months from the date of receipt of certified copy of this order. If he opines that the application has been filed beyond 5 years, he shall remit the representation to the Additional Chief Secretary, Basic Education, Government of U.P., who shall pass suitable orders thereon within two months from the date of receipt of the representation from the office of the District Basic Education Officer, Amroha. Order Date :- 21.9.2022 pks Digitally signed by PAWAN KUMAR SINGH Date: 2022.10.20 18:21:17 IST Reason: Location: High Court of Judicature at Allahabad