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2010 DIGILAW 1134 (ALL)

Ram Kishore Gupta v. State of U. P.

2010-04-06

ANIL KUMAR

body2010
Anil Kumar, J.- Heard Sri V.K. Singh holding brief of Smt. Anita Agarwal, learned counsel for the petitioner, Sri V.S.Tripathi, learned Standing Counsel and Sri J.N. Verma, learned counsel for opposite party no.3. 2. By means of present writ petition, the petitioner has challenged the order dated 11.12.2009 passed by the opposite party no. 3, the Director Education(Basic), Uttar Pradesh, Nishatganj, Lucknow contained in Annexure no. 1 to the writ petition. 3. Facts in brief as submitted by the learned counsel for the petitioner are that the petitioner's father was working as Assistant Teacher in Junior High School, Husainganj Kalan, Jagdishpur, Sultanpur died during the tenure of his services on 25.06.2001, so an application was moved by the petitioner for considering his case for compassionate appointment. 4. By order dated 05.09.2001, the petitioner was given compassionate appointment on the post of Anuchar(Peon) in the institution in question considering his qualification which he possessed at that time i.e. High School. 5. He further submits that after joining on the post of Anuchar (Peon), petitioner completed his graduation(B.A.) from Dr. Ram Manohar Lohia Avadh Vishwavidyalaya, Faizabad(U.P.) with due persmission of respondent. Accordingly, after completing his graduation, the petitioner submitted a representation to the concerned authorities for appointing him on the post of Assistant Teacher on compassionate ground taking into account his qualification which he possess. However, no appointment order was issued but the petitioner was assigned the work as Assistant Teacher. 6. Learned counsel for the petitioner further submits that as the verbal request of the petitioner for appointing him on the post of Assistant Teacher on compassionate ground was not considered so a representation was moved by him praying therein that the case of the petitioner for the appointment on the post of Assistant Teacher on compassionate ground may be considered again taking into account the qualification(graduation) possessed by him which is the essential qualification for appointment on the post of Assistant Teacher, the said representation was rejected by means of order dated 11.12.2009 passed by opposite party no. 3(Zila Basic Shiksha Adhikari, Sultanpur) on the ground that in view of Clause-5 of the Government Order dated 4th September, 2008, if a person is appointed on compassionate grounds then he can not be appointed again on a higher post taking into consideration his qualification hence, the present writ petition has been filed thereby challenging the order dated 11.12.2009 on the ground that the same is wholly illegal, arbitrary and discriminatory, passed without application of mind and in contravention to the judgment and order dated 04.05.2009 passed in Writ Petition No.1637(SS) of 1991(Vijay Shankar Srivastava Vs. District Basic Education Officer, Lucknow). 7. It was further argued by the learned counsel for the petitioner that the direction be issued to the opposite parties to make the payment of salary etc. as applicable on the post of Assistant Teacher to the petitioner with effect from the date of working on the said post. 8. Heard learned counsel for the parties present today and perused the record. 9. The object and the genesis of compassionate appointment is on account of "immediate hardship" and to mitigate 'distress' in the family of a deceased employee. It is not planned and cannot be delayed or postponed, as that will frustrate the very object of the compassionate appointment. 10. Further, the provisions pertains to compassionate appointment has been dealt by Hon'ble Supreme Court in the case of Sushma Gosain and others Vs. Union of India and others, AIR 1989 SC 1976 , however thereafter the approach pertaining to the provisions for compassionate appointment has undergone major change. 11. In the case of State of State of Haryana Vs. Naresh Kumar Bali, (1994) 4 SCC 448 , the Supreme Court while allowing the appeal of the State held as under: "Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of a teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a Clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed. The claim for appointment as Inspector was never made earlier." 12. In the case of State of Rajsthan Vs. Thus, the appointment on compassionate ground as per the scheme had been completed. The claim for appointment as Inspector was never made earlier." 12. In the case of State of Rajsthan Vs. Umrao Singh, (1994) 6 SCC 560 , the Supreme Court held as under: "Once the respondent accepted the appointment as a Clerk which appointment came to be made on compassionate ground, he cannot lay a further claim for appointment as Sub-Inspector. It cannot be a case of compassionate for all time." 13. In the case of the Director of Education (Secondary) and another Vs. Pushpendra Kumar and others, (1998) 5 SCC 192 , wherein the Hon'ble Apex Court has observed as under: "The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provide, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision. Care has, therefore, to be taken that a provision for grant of compassionate appointment which is in the nature of a exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee." 14. In the case of Sanjay Kumar Vs. State of Bihar and others, JT. 2000(10) SC, 156, it has been held by the Hon'ble Apex Court that there cannot be a reservation of vacancy for the dependent of the deceased Government servant, who died-in-harness. 15. In the case of Sanjay Kumar Vs. State of Bihar and others, JT. 2000(10) SC, 156, it has been held by the Hon'ble Apex Court that there cannot be a reservation of vacancy for the dependent of the deceased Government servant, who died-in-harness. 15. Therefore, once petitioner having accepted an appointment, may be on Class-IV post under existing situation out of will and volition, the 'chapter' of Dying in Harness is closed. No one should be permitted to re-agitate this matter in future on the basis of change of circumstances in future, leaving everything in turmoil and in a state of indecisiveness. It if is permitted, no litigation will ever come to an end. So relief claimed by the petitioner for appointment on compassionate ground again on the post of Assistant Teacher as he possess the qualification of the said post is misconceived and liable to be rejected. 16. In the instant case, the petitioner placed reliance on the judgment passed by this Court dated 04.05.2009 passed in Writ Petition No.1637(SS) of 1991(Vijay Shankar Srivastava Vs. District Basic Education Officer, Lucknow), a copy of which is annexed as annexure no. 13 to the writ petition, wherein this Court has held as under:- "When the petitioner approached this Court, this Court by means of order dated 21.03.1991 passed the interim order to the extent that till further orders of this Court, the petitioner shall continue to be paid salary admissible to an Assistant Teacher. Accordingly, the petitioner has been working as such and meanwhile, the petitioner has become entitled for promotion to post of head master. This fact is not disputed that the petitioner was appointment as assistant teacher by the District Basic Education Officer on 09.02.1988, that may have been treated as the double benefit but the fact remains that he continued as such till the date of reversion and after reversion, he succeeded to get the interim order from this Court and now after 20 years it is not proper to upheld the order impugned as by efflux of time the petitioner must have been eligible for promotion on the post of assistant teacher" 17. Admittedly, while passing the above said judgment this Court had not taken into consideration the judgments passed by the Hon'ble Apex Court on the point in issue. Admittedly, while passing the above said judgment this Court had not taken into consideration the judgments passed by the Hon'ble Apex Court on the point in issue. Therefore the same cannot be treated as a 'binding precedent' having force of law and have to be treated as 'per incuriam' as Supreme Court judgments are binding on this Court. So the petitioner cannot derive any benefit from the case of Vijay Shankar Srivastava(supra) as it is no longer open to the petitioner to lay a further claim for appointment on the post of Assistant Teacher as held by the Hon'ble Supreme Court that once an appointment has been made, the matter regarding compassionate appointment comes to an end and no further appointment under the Dying-In-Harness Rules could be made. 18. nMoreover, the relief as claimed by the petitioner that opposite parties may be directed to make payment of salary etc. for the post of Assistant Teacher on which the petitioner in view of the direction issued by the opposite parties is wholly misconceived and untenable, relief as the petitioner has neither any right nor locus to claim for the said relief because he was never appointed on the post of Assistant Teacher. 19. For the foregoing reasons, I do not find any illegality or infirmity in the order dated 11.12. 2009 passed by opposite party no. 3 as contained in annexure no. 1 to the writ petition. Accordingly, the present writ petition lacks merit and it is hereby dismissed. No order as to costs.