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2015 DIGILAW 2467 (ALL)

Itwari Lal v. State of U. P.

2015-08-18

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. Heard Sri Narendra Kumar, learned counsel for the petitioner, learned Standing Counsel and perused the record. 2. By means of present writ petition , petitioner has challenged the impugned order dated 4.9.2014 passed by opposite party no.3/ District Basic Education Officer, Sitapur. 3. Facts, in brief, of the present case are that petitioner's father Sri Ayodhya Prasad, who was working on the post of Assistant Teacher in Poorva Madhyamik Vidhyalaya, Pakhaniyapur, Post Larkarpur, Block Sakaran District Sitapur died during the tenure of his service .As such the petitioner has moved an application for compassionate appointment under Dying in Harness Rules. 4. By order dated 4.9.1997 passed by the competent authority , petitioner was appointed on class IV post on consolidated salary and posted in Poorva Madhyamik Vidhyalay, Pakhaniyapur, Sitapur. After joining his service he raised a grievance on the ground that there is no justification or reason to appoint him on consolidated salary as he is entitled for regular appointment/ salary.When no heed paid, approached this Court by filing writ Petition No.1707 (SS) of 2014 ( Itwari Lal Vs. State of U.P. and others) , disposed of by means of order dated 14.3.2014 with the following directions: - "In view of the above, with the consent of parties' counsel and without entering into the merits of the case, the writ petition is finally disposed of with the direction to the opposite party no. 3-Basic Education Officer, Sitapur to consider and decide the representation of the petitioner dated 17.2.2014, contained in Annexure-5 to the writ petition by passing a speaking and reasoned order, in accordance with law, within a period of one month from the date of production of a certified copy of this order and communicate the result of the same to the petitioner." 5. Thereafter the case of the petitioner was considered and rejected vide order dated 4.9.2014 ( Annexure no.1) passed by opposite party no.3/ District Basic Education Officer, Sitapur taking into consideration the Government Order dated 30.1.1996 issued by Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad . 6. Thereafter the case of the petitioner was considered and rejected vide order dated 4.9.2014 ( Annexure no.1) passed by opposite party no.3/ District Basic Education Officer, Sitapur taking into consideration the Government Order dated 30.1.1996 issued by Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad . 6. Learned counsel for the petitioner while challenging the impugned order submits that the action on the part of opposite party no.3 thereby rejecting the case of the petitioner in view of the Government Order dated 30.1.1996 issued by Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad is contrary to law as laid down by Division Bench of this Court in the case of Ravi Karan Singh Vs. State of U.P. And others ( 1999) 3 UPLBEC 2263, and the Government order dated 30.1.1996 is not applicable in the case of the petitioner so he is entitled for regular appointment/salary on the post in question . 7. Sri Shobhit Mohan Shukla, learned counsel appearing on behalf of opposite parties submits that the Government Order dated 30.1.1996 states that the employees who are appointed in rural as well as in urban area can only be absorbed when the seat will become vacant. As there was no post of class IV employee in the Poorva Madhyamik Vidhyalaya , the petitioner was appointed on fixed salary of Rs.750/-. Therefore, the claim of the petitioner has been considered and rejected in view of the Government Order dated 30.1.1996 and the 7.5.2013. The Government order dated 30.1.1996 specifically provides that the regular pay scale will be provided from the date of absorption. 8. The sole basis of passing of the impugned order dated 4.9.2014 is Government Order dated 30.1.1996 issued by Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad. The relevant portion of the said is quoted as under: - --Hindi- 9. The Government order dated 30.1.1996 specifically provides that the regular pay scale will be provided from the date of absorption. 8. The sole basis of passing of the impugned order dated 4.9.2014 is Government Order dated 30.1.1996 issued by Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad. The relevant portion of the said is quoted as under: - --Hindi- 9. The Government Order dated 30.1.1996 is not applicable in case of the persons who were appointed on compassionate ground under Dying in Harness Rules, so the action on the part of opposite party no.3 thereby rejecting the claim of the petitioner vide order dated 4.9.2014 in view of Government Order dated 30.1.1996 is void ab initio and without jurisdiction as well as on the ground that compassionate appointment cannot be given on consolidated salary because the same is of permanent nature as held by by a Division Bench of this Court in the case of Ravi Karan Singh ( supra) which is quoted herein below: - "This petition has come up before us on a reference made by the learned Single Judge by his order dated 19.12.1997. The point involved is very simple, that is, whether an appointment under the Dying in Harness Rules is a permanent appointment or temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appoint vide Budhi Sagar Dubey v. D.O.I.S., (1993) 1 UPLBEC 197 ; Gulab Yadav v. State of U.P. and others, (1991) 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. & Others. (1991) 1 UPLBEC 427. The learned Single Judge who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench. In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rule because such appointment is intended to provide immediate relief to the family on the sudden death of the bread-earner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments. The petition is disposed of accordingly." 10. So keeping in view of the said fact as well as the law laid down a Division Bench of this Court in the case of Ravi Karan Singh ( supra), the impugned order passed by opposite party no.3 liable to be set aside. 11. For the foregoing reasons, the writ petition is allowed and the impugned order dated 4.9.2014 passed by opposite party no.3/ District Basic Education Officer, Sitapur is set aside. The opposite party no.3 is directed to re-examine the matter afresh in the light of the observations made herein above, expeditiously, say within a period of eight weeks from the date a certified copy of this order is produced before him.