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2015 DIGILAW 208 (UTT)

VINAY KUMAR SINGH v. STATE OF UTTARAKHAND

2015-04-15

SUDHANSHU DHULIA

body2015
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. The petitioner in each of the above writ petitions seek appointment as Assistant Teacher (LT Grade) in Government Secondary Schools on compassionate grounds. This appointment is being denied to them by the Government, as the Government has refused to pass orders to this effect. Consequently, the petitioners have filed these writ petitions before this Court seeking a writ, order, or direction in the nature of mandamus to direct the respondents to appoint them as Assistant Teacher (LT Grade) in Government Secondary Schools. 2. Since the issue raised in all these writ petitions is common and the prayer itself is the same in all the writ petitions, the matter is being heard and disposed finally by a common order. However, the facts which will be narrated in the order will pertain to Writ Petition No.486 (SS) of 2015, which is made the leading case. 3. In WPSS No.486 of 2015, WPSS No.487 of 2015, WPSS No.488 of 2015, and WPSS No.492 of 2015, the father of each of the petitioners passed away in harness either as Headmaster/Principal or as a Lecturer of a Government school. In WPSS No.489 of 2015, WPSS No.490 of 2015 and WPSS No.491 of 2015, the husband of each of the petitioners passed away as Headmaster (Primary School) or Lecturer and Assistant Teacher (LT Grade), respectively of a Government school. The common factor which runs in all the writ petitions is that either the father or the husband of each of the petitioners died while in harness between 23.05.2011 to 28.04.2013. All of them consequently seek appointment as Assistant Teacher (LT Grade) on compassionate ground under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (from herein after referred to as “the Dying in Harness Rules, 1974”). 4. The question is whether such appointments can be granted to them as Assistant Teacher (LT Grade) in Government schools. Under Rule 5 of the Dying in Harness Rules, 1974, one member of the family of a deceased government employee who dies in harness can be given appointment on compassionate ground. Rule 5 of the Dying in Harness Rules, 1974 reads as under:- “5. Under Rule 5 of the Dying in Harness Rules, 1974, one member of the family of a deceased government employee who dies in harness can be given appointment on compassionate ground. Rule 5 of the Dying in Harness Rules, 1974 reads as under:- “5. Recruitment of a member of the family of the deceased,- (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person- (i) fulfils the educational qualifications prescribed for the post, (ii) is otherwise qualified for Government service, and (iii) makes the application for employment within five years from the date of the death of the Government servant: Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death. (3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government Servant who are incapable for their own maintenance and were dependent of the abovesaid deceased Government servant immediately before his death.” 5. A bare perusal of the aforesaid Rule shows that a member of family of a deceased government employee (who has died in harness), subject to the conditions made in the aforesaid rules can be given appointment provided he fulfills educational qualification prescribed for the post and is otherwise qualified for government services. A bare perusal of the aforesaid Rule shows that a member of family of a deceased government employee (who has died in harness), subject to the conditions made in the aforesaid rules can be given appointment provided he fulfills educational qualification prescribed for the post and is otherwise qualified for government services. On these two counts, this Court finds that the petitioners are not eligible to be given appointment on compassionate ground under the Dying in Harness Rules, 1974, as they 4 do not have one of the essential qualifications for appointment as Assistant Teacher (LT Grade) in Government schools, which is even admitted by them that is they have not qualified an examination, which is known as “Teachers Eligibility Test” (from herein after referred to as “TET”). 6. Under the guidelines given by the National Council for Teachers Education (from hereinafter referred to as “NCTE”) in pursuance of the Right of Children to Free and Compulsory Education Act, 2009 (from herein after referred to as the Right to Education Act”) a person can only be held to be qualified for appointment as teacher in elementary classes, inter alia, if he has passed the TET. Admittedly, elementary classes constitute from Class I to VIII. In order to teach in Class I to V, which are primary classes, there is a test held in the State of Uttarakhand, which is called “TET-I” and in order to become eligible to teach Class VI, VII and VIII, there is another test in the State of Uttarakhand, which is “TET-II”. 7. Since, an Assistant Teacher (LT Grade) also has to take Classes of VI, VII, VIII, a candidate here also cannot be exempted from these qualification, which is TET-II as per the guidelines of NCTE, which are binding on the State Government. For this reason the State Government has been right in denying the appointment to the petitioners under the Dying in Harness Rules, 1974 as they do not have the qualification of TET-II, at least not as yet and the Government has refused to give them appointment for this reason alone. 8. However, there is another aspect to it, which is whether the petitioners even if they are TET qualified can be given appointment on compassionate grounds under the Dying in Harness Rules, 1974! Definitely the post of Assistant Teacher (LT Grade) is not within the purview of Uttarakhand Public Service Commission. 8. However, there is another aspect to it, which is whether the petitioners even if they are TET qualified can be given appointment on compassionate grounds under the Dying in Harness Rules, 1974! Definitely the post of Assistant Teacher (LT Grade) is not within the purview of Uttarakhand Public Service Commission. Apparently the Rules do not prohibit appointment on compassionate grounds on the post of teacher in a government schools. Therefore, as there is no specific bar under the Dying in Harness Rules, 1974, an argument has been made that such appointments can be made as the father of the petitioners or in some cases husband of the petitioners who were teachers in primary schools or lecturers. The answer to this can be found in the object and purpose of giving appointment on compassionate grounds, as held by Hon’ble Apex Court from time to time. The main reason for giving appointment on compassionate ground is to mitigate the hardships of the family which has lost its only breadwinner, so that the family is able to tide over the difficult circumstances which have befallen upon the family. The provision for compassionate appointment is contained under the rules, which have been framed under Article 309 of the Constitution of India. 9. On the other hand, the Right of Children to Free and Compulsory Education Act is a parliamentary legislation. It is a consequence of the 86th Amendment to the Constitution of India by which Article 21A was inserted in our Constitution making free and compulsory education of all children in age group of 6 to 14 years as a “fundamental right”. This free and compulsory elementary education to children is to be a “meaningful education”, and for this purpose, the skill, efficiency and qualifications of teachers have also to be raised under the Right of Children to Free and Compulsory Education as well under the guidelines given by a nodal agency which is “NCTE”, which has statutory implications. A teacher who now has to teach in elementary classes, not only has to be properly qualified but has to pass a test, which has been again made compulsory in order to test skills and competence of a person who is to be appointed as a teacher in elementary schools. 10. A teacher who now has to teach in elementary classes, not only has to be properly qualified but has to pass a test, which has been again made compulsory in order to test skills and competence of a person who is to be appointed as a teacher in elementary schools. 10. The object, therefore, sought to be achieved under the Right to Education Act is absolutely clear which is to give a meaningful compulsory elementary education to children by trained and qualified teachers. Therefore, considering the object of Dying in Harness Rules as well as the objective of the fundamental right given to the children under Article 21A of the Constitution of India read with parliamentary legislation and the guidelines issued by NCTE, this Court finds that somewhere the object of the Right to Education Act will be defeated, if appointments are given to persons on compassionate grounds, over-looking the necessary qualifications of teachers in elementary schools. Therefore, all persons who seek appointment as teachers in elementary schools in the State of Uttarakhand must go through the same process of selection. Since normally the procedure of appointing a person on compassionate ground is a process which actually bypasses the normal process of selection, less than meritorious candidates can be selected under Rule 8 of the Dying in Harness Rules, 1974 as there is a provision for relaxation in selection. Rule 8 of the Dying in Harness Rules, 1974 reads as under:- “8. Relaxation from age and other requirements.- (1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment. (2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but it shall be open to the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post. (3) An appointment under these rules shall be made against an existing vacancy only.” 11. In case the above procedure is adopted in the appointment of teachers that would defeat the purpose of the Right of Children to Free and Compulsory Education Act, 2009. Such appointments, therefore, cannot be made on compassionate ground. The prayer of the petitioners, therefore, has to be rejected on this ground as well. 12. In case the above procedure is adopted in the appointment of teachers that would defeat the purpose of the Right of Children to Free and Compulsory Education Act, 2009. Such appointments, therefore, cannot be made on compassionate ground. The prayer of the petitioners, therefore, has to be rejected on this ground as well. 12. In view of the above observations, these writ petitions have no force and are hereby dismissed in limine. 13. No order as to costs. 14. Let a copy of this order be sent to Secretary, Secondary Education, Government of Uttarakhand, Dehradun as well as Director of Education, Uttarakhand, Dehradun to do the needful.