Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 2617 (ALL)

MAHFOOZ AHMAD KHAN v. STATE OF U. P.

2009-07-21

ARUN TANDON

body2009
JUDGMENT Honble Arun Tandon, J.—Mahatma Gandhi Memorial Public Muslim Inter College, Kiratpur, Bijnor is an aided and recognized Intermediate College. The said institution has been declared to be a minority institution. The provisions of Intermediate Education Act and those of U.P. Act No. 24 of 1971 are applicable to teachers and staff of the said institution. The Committee of Management of the institution made an application before the District Inspector of Schools seeking permission to make selections/appointment on 8 vacancies of Assistant Teachers which were lying vacant. The permission applied for was granted by the District Inspector of Schools vide order dated 27.8.2007. The Committee accordingly published Advertisements in newspaper namely Daily Shah Times, Rashtriya Sahara Urdu and Dainik Jagran respectively. A Selection Committee stated to have been constituted in accordance with Section 16-FF of the Intermediate Education Act. The Selection Committee recommended the petitioner for appointment against one of the advertised vacancies. The recommendation of the Selection Committee were placed before the Committee of Management which approved the said selections and vide letter dated 1.11.2007 sought approval from the District Inspector of Schools qua the appointment so made in accordance with Section 16-FF of the Act. 2. Since no action was taken by the District Inspector of Schools the Committee filed Civil Misc. Writ Petition No. 16012 of 2008. The writ Court disposed of the same vide order dated 2.4.2008 requiring the District Inspector of Schools to take appropriate decision on the papers received within the time specified. 3. The District Inspector of Schools approved appointment of five teachers only which did not included the name of the petitioner. In his place one Mohd. Asif Iqbal was approved for appointment as Assistant Teacher on compassionate ground. This order of the District Inspector of Schools dated 20.11.2008 is being challenged by means of the present writ petition. 4. According to the writ petitioner appointment of Mohd. Asif Iqbal has been approved for appointment on compassionate ground and that he was not amongst the candidate selected in pursuance to the advertisement. To be precise it is stated that the papers qua appointment of Mohd. Asif Iqbal were transmitted separately to the office of the District Inspector of Schools only on 23.5.2008. It has been contended before this Court that the District Inspector of Schools inter-mixed the compassionate appointment of Mohd. Asif Iqbal with that of direct recruitment of the petitioner. To be precise it is stated that the papers qua appointment of Mohd. Asif Iqbal were transmitted separately to the office of the District Inspector of Schools only on 23.5.2008. It has been contended before this Court that the District Inspector of Schools inter-mixed the compassionate appointment of Mohd. Asif Iqbal with that of direct recruitment of the petitioner. The Committee of Management had issued appointment letter in favour of the petitioner and in pursuance thereto he had joined on 21.1.2008. 5. This Court while entertaining the writ petition on 18.12.2008 stayed the appointment of Mohd. Asif Iqbal on the ground that Regulation 103 to 107 of Chapter III of Regulations framed under the Intermediate Education Act are not applicable to minority institution. 6. A counter affidavit has been filed on behalf of respondent Mohd. Asif Iqbal and it is contended that father of the said respondent was working as L.T. Grade Teacher (Commerce) in the institution. He expired during harness on 4.11.2003. The said respondent made an application for compassionate appointment which was not considered by the Committee of Management/District Inspector of Schools. Ignoring the pendency of the said application for compassionate appointment, permission to fill in the vacancy by direct recruitment was granted under letter dated 27.8.2007. It has been stated that vide notification dated 9.8.2001 amendments have been made in Regulation 103 of Chapter III of the Regulations framed under the Intermediate Education Act. By such amendment relevant sentence qua Regulation 103 being not applicable to minority institution has been deleted. It, therefore, logically follows that in respect of minority institutions also, provisions of Regulation 103 are attracted. 7. A counter affidavit has also been filed on behalf of the Committee of Management of the institution and in paragraph 8 it has been stated that respondent Mohd. Asif Iqbal could not be appointed as Assistant Teacher as he did not have a degree of B.Ed. on the date his right for compassionate appointment accrued. His application for compassionate appointment has, therefore, to be processed with reference to the said date. It has further been stated that earlier Committee of Management deliberately forwarded his application for compassionate appointment after five years of the death of his father i.e. on 17.5.2008 after Mohd. Asif Iqbal had obtained his degree of B.Ed. His application for compassionate appointment has, therefore, to be processed with reference to the said date. It has further been stated that earlier Committee of Management deliberately forwarded his application for compassionate appointment after five years of the death of his father i.e. on 17.5.2008 after Mohd. Asif Iqbal had obtained his degree of B.Ed. He submits that on the date the permission was granted to fill in the vacancy by direct recruitment i.e. 27.8.2008 as well as on the date the vacancy was advertised i.e. 2.9.2007 and 4.9.2007 respectively, Mohd. Asif Iqbal was not possessed of the Degree of B.Ed. and, therefore, could not have been appointed against the vacancy for which permission for direct recruitment was granted and has been advertised. Lastly it is pointed out that a Degree of B.Ed. has been granted in his favour only on 13.8.2008. 8. In the rejoinder affidavit it is stated that the notification dated 9.8.2001 whereby the exemption clause as contained in Regulation 103 was deleted (referred to above) has been declared ultra vires by this Court in the case of MAH Inter College v. District Inspector of Schools, Ghazipur and others, 2002 (3) AWC 2221 . 9. I have heard learned counsel for the parties and have gone through the records of the present writ petition. 10. From the records of the present writ petition following facts emerge : Committee had applied for permission being granted for appointment against the vacancies available on 18.8.2007. Permission was granted by the District Inspector of Schools on 27.7.2007. All the vacancies were duly advertised on 2.9.2007 and 4.9.2007 respectively and the process of selection was initiated. The selection was completed in fact under Resolution dated 1.11.2007. The papers were transmitted to the District Inspector of Schools qua the selected candidates including the petitioner for approval on 1.11.2007. Since no action was taken by the authority concerned, a writ petition was filed before this Court wherein a direction was issued that the matter may be considered within 3 months. The authority concerned took more than 7 months to take a decision on the selections held and to be precise passed an order only on 20.11.2008. In between the District Inspector of Schools concerned has issued an order directing compassionate appointment to Mohd. Asif Iqbal vide letter dated 15.11.2008, copy whereof has been enclosed along with the counter affidavit filed by Mohd. In between the District Inspector of Schools concerned has issued an order directing compassionate appointment to Mohd. Asif Iqbal vide letter dated 15.11.2008, copy whereof has been enclosed along with the counter affidavit filed by Mohd. Asif Iqbal as Annexure CA-2. What is surprising to note that neither the respondent No. 4 nor the order of the District Inspector of Schools discloses the date on which application for compassionate appointment was filed by the said respondent. What has been stated that the Committee of Management on 23.8.2008 forwarded the papers for compassionate appointment of Mohd. Asif Iqbal on which order dated 15.11.2008 has been passed. 11. I am of the considered opinion that the selections completed in the month of November, 2007 cannot in any way be effected because of any subsequent application being made by Mohd. Asif Iqbal. Therefore, the order refusing to consider the claim of the petitioner on the basis of selections held is legally not justified. In any view of the matter once the amendment made vide notification dated 9.8.2001 has been held to be ultra vires of Section 16-E/16-FF of the Intermediate Education Act, no compassionate appointment on the post of Assistant Teacher in terms of the said notification can be offered in a minority institution. Consequently so far as the minority institutions are concerned, no appointment by way of compassionate ground can be made so long as judgment in the case of MAH Inter College v. District Inspector of Schools, Ghazipur and others (supra) holds good. No law to the contrary has been brought to the notice of the Court. 12. This Court may also note that the application of Mohd. Asif Iqbal for compassionate appointment was forwarded after 5 years of the date of the death of his father and that too when he had obtained a Degree of B.Ed. The aforesaid fact are prima facie established that Mohd. Asif Iqbal was not in need of compassionate appointment inasmuch as for a period of 5 years he did not make any application for compassionate appointment, he pursued his claim after obtaining a Degree of B.Ed in March, 2008. Compassionate appointment is not a source of employment. It is provided only to mitigate against the immediate financial hardship faced by the family because of the death of bread earner. 13. Compassionate appointment is not a source of employment. It is provided only to mitigate against the immediate financial hardship faced by the family because of the death of bread earner. 13. In the totality of the circumstances as noticed herein above, this Court is of the opinion that the order passed by the District Inspector of Schools dated 20.11.2008 to the extent it directs the appointment of Mohd. Asif Iqbal on compassionate ground and refuses to consider the approval to the appointment of the petitioner cannot be legally sustained and is hereby quashed. Let the District Inspector of Schools take fresh decision on the matter strictly in accordance with Section 16-FF of the Intermediate Education Act, within four weeks from the date a certified copy of this order is filed before him. It is further provided that the application made by respondent No. 4 for compassionate appointment may be examined and appropriate decision in accordance with law as applicable to minority institution be taken within the same period. 14. Writ petition is allowed subject to the observations made herein above. ———