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2015 DIGILAW 580 (ALL)

Dhirendra Jauhari v. State of U. P.

2015-03-26

D.Y.CHANDRACHUD, P.K.S.BAGHEL

body2015
JUDGMENT Pradeep Kumar Singh Baghel, J. The dismissal of a writ petition filed by the appellant, by the learned Single Judge on 18 February 2015 has resulted in this special appeal. Two reliefs were sought in the writ petition; the first in the nature of mandamus for appointment of the appellant on a suitable post under the U P Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 upon the death of his mother Smt Asha Jauhari who was an Assistant Teacher in a senior primary school at Bhandra, Block Usawa, District Budaun, and the second for a mandamus seeking a decision on the application for appointment. 2. Briefly stated, the case of the appellant is that his mother was appointed on 25 January 1995 as an Assistant Teacher and was posted at the school noted above. A first information report was lodged against her in pursuance of which she was arrested on 6 February 2012 in Case Crime No 7778 of 2013 under Sections 420, 467, 468 and 471 of the Penal Code, registered at Police Station Civil Lines, Budaun. The appellant's mother was suspended following her detention in jail. On 11 November 2012, a charge sheet was submitted by the Investigating Officer. During the pendency of the criminal proceedings, the mother of the appellant died on 7 November 2013. The appellant filed an application for compassionate appointment. Finding no response thereto, the appellant sought a mandamus for compassionate appointment and apparently, in the alternative, an order for the disposal of the application. 3. The learned Single Judge has dismissed the writ petition holding that the intermediate mark sheet of 1978 submitted by Smt Asha Jauhari at the time of her appointment was found to be forged and a report was submitted by the Principal of the institution on 17 October 2013. Another certificate of the Purva Madhyama Examination of 1975 had been sent for verification to the Secretary, Sampurnanand Sanskrit Vishwavidyalaya, Varanasi and the verification report was awaited. 4. In the present case, the employee, in lieu of whose services compassionate appointment was sought, having died during suspension, there was no question of holding a disciplinary enquiry thereafter. The jural relationship of employer and employee had come to an end on the death of the employee. 4. In the present case, the employee, in lieu of whose services compassionate appointment was sought, having died during suspension, there was no question of holding a disciplinary enquiry thereafter. The jural relationship of employer and employee had come to an end on the death of the employee. The issue is whether the learned Single Judge was justified in dismissing the writ petition at the stage at which the petition was filed. No decision admittedly had been taken on the application submitted by the appellant for the grant of compassionate appointment. We find some substance in the contention of the learned Senior Counsel appearing on behalf of the appellant that having regard to the serious allegations implicating an act of forgery to the deceased employee on the basis of which the learned Single Judge was inclined to dismiss the writ petition, at least a modicum of a fair opportunity ought to have been granted to the appellant before a final decision was arrived at on the claim for compassionate appointment. Undoubtedly, if the employment in a given case is found to have been obtained by the employee on the basis of an act of fraud or forgery, there was no occasion to grant compassionate appointment under the rules but whether, as a matter of fact, there was an act of forgery, is an issue on which a fair opportunity ought to have been granted to the appellant. In this view of the matter, we are of the view that the appropriate course for the learned Single Judge was to direct the competent authority to dispose of the application filed by the appellant for compassionate appointment after furnishing to the appellant a fair opportunity of being heard. 5. We, accordingly, direct that the District Basic Education Officer, Budaun shall take a final decision in accordance with law on the application submitted by the appellant after furnishing to the appellant a reasonable opportunity of being heard. The impugned order of the learned Single Judge dated 18 February 2015 shall stand substituted in terms of the aforesaid direction. 6. The second respondent shall endeavour to decide the application within a period of four months from the receipt of a certified copy of this order. The special appeal is, accordingly, disposed of. There shall be no order as to costs.