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2016 DIGILAW 2652 (ALL)

Vinita Sharma v. State of U. P.

2016-08-01

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel, J. 1. The petitioner has preferred this writ petition in the year 2000 for quashing of the order dated 30th September, 2000 passed by the fourth respondent whereby her claim for appointment on compassionate ground has been rejected. 2. Briefly stated the facts are; the petitioner's husband late Sri Suresh Babu Tiwari was a Principal of an institution, namely, Sri Kameshwar Sanskrit Pathshala Hathras, District Hathras (for short, the "Institution"). He died on 08th September, 1996 while in harness. The Institution is recognized and aided Sanskrit Mahavidyalaya. It receives aid from the State Government. It is affiliated with Sampurnanand Sanskrit Mahavidyalaya. 3. The petitioner is M.A. in Hindi & Political Science and B.Ed. She moved an application for compassionate appointment as she is a differently abled person. A copy of the certificate issued by the Chief Medical Officer, Agra certifying that she is a differently abled person, is on the record as annexure-6 to the writ petition. 4. Upon the application of the petitioner, the Committee of Management of the Institution on 25th September, 1996 passed a resolution to appoint the petitioner on the post of lecturer in the pay scale of Rs. 1225-1670. The said resolution was sent to the District Inspector of Schools for his approval. The claim of the petitioner has been rejected by the Registrar of the University by a cryptic order that at that point of time there was a ban on the appointments. 5. On the record there is a communication of the District Inspector of Schools dated 30th September, 2000 addressed to the District Magistrate, Hathras wherein he has stated that husband of the petitioner was a Principal of Sri Kameshwar Sanskrit Mahavidyalaya and he died while in harness on 08th September, 1996. It is stated that at the time of his death, there was no provision of law for compassionate appointment in the degree colleges or for non-teaching staff. However, the State Government vide Government order dated 14th September, 1999 has permitted the appointments on compassionate ground. 6. At the time of moving of this writ petition in the year 2000, the Court has directed all the respondents to file counter affidavit. Even sixteen years have elapsed, no counter affidavit is on the record. On 18th May, 2016 there was a stop order also, but the respondents have preferred not to file counter affidavit. 7. 6. At the time of moving of this writ petition in the year 2000, the Court has directed all the respondents to file counter affidavit. Even sixteen years have elapsed, no counter affidavit is on the record. On 18th May, 2016 there was a stop order also, but the respondents have preferred not to file counter affidavit. 7. Learned counsel for the respondents has made a statement that the matter may be heard without counter affidavit. 8. From the record it appears that the petitioner's husband was the Principal of a Sanskrit College. He died while in harness. The petitioner possesses essential qualification for appointment as a teacher in a Sanskrit College. She did her M.A. in two subjects. She is also B.Ed. Moreover, she is a differently abled person. All these facts are evident from the communication of the District Inspector of Schools dated 30th September, 2000 addressed to the District Magistrate, Hathras. 9. It is evident from the record that the State Government has issued an order dated 14th June, 1999 under Section 50(4) of the U.P. State Universities Act, 1973 to Sampurnanand University to amend its statutes providing provisions for the appointment on compassionate ground. A copy of the said order is on the record is annexure-9 to the writ petition. 10. It is contended on behalf of the petitioner that the Committee of Management is the appointing authority and it has found the petitioner eligible for appointment as a teacher in the Institution as the petitioner has essential qualification for the said post. The documents were sent to the University and the District Inspector of Schools for their approval. The University has rejected the claim of the petitioner by two line order, which is extracted herein below: **vkids mi;qZDr fo"k;d i= ds lUnHkZ esa lwP; gS fd lEizfr fu;qfDr in izfrcU/k gS A**" 11. Insofar as the District Inspector of Schools is concerned, he has not passed any order and in his communication to the District Magistrate he has taken note of the fact that husband of the petitioner died in the year 1996 whereas the amendments in the statutes have been made on the directions of the State Government in the year 1999. 12. 12. Even if the amendments were made in the year 1999 the claim of the petitioner ought to have been considered as it is a settled law that under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 a candidate can move the application within five years and if the application is moved after five years the State Government has power to relax the period. It depends upon the facts and circumstances of the applicant. 13. In the present case the petitioner is a physically challenged person. She ought to have been given a sympathetic consideration by the University and the District Inspector of Schools. 14. It is also a well settled law that the appointment on compassionate ground is not a vested right and a person cannot claim appointment as a matter of right, but it is the exception under the service jurisprudence and under Article 16 of the Constitution where the said exception has been carved out in regard to compassionate and humanitarian ground. The main object of the appointment on compassionate ground is to provide some succour to the family members who are suddenly without any source of livelihood. 15. In the present case the respondents have rejected the claim of the petitioner only on the ground that there was a ban. Even if there was a ban for the appointment of teachers, the University and the District Inspector of Schools could offer her the appointment on class-III post. In the present case the petitioner's claim has been rejected only on the technical ground and no appointment has been offered as a class-III employee. 16. The next question arises, what relief can be granted to the petitioner at this distance of time. The petitioner has moved this writ petition without any delay way back in the year 2000. At the time of moving of the writ petition the respondents were granted time to file counter affidavit, however, for the sixteen years no counter affidavit has been filed and this writ petition is lying dormant thus there is no fault on the part of the petitioner. 17. The Supreme Court in the case of Jahuri Sah and others v. Dwarika Prasad Jhunjhunwala and others has held that if there is no specific denial, the averments made in the writ petition shall be accepted as correct. 18. 17. The Supreme Court in the case of Jahuri Sah and others v. Dwarika Prasad Jhunjhunwala and others has held that if there is no specific denial, the averments made in the writ petition shall be accepted as correct. 18. In view of the aforesaid facts, in my view, the order passed by the University dated 05.04.1997 needs to be set aside. It is accordingly set aside. The matter is remitted to the University to consider the claim of the petitioner and pass appropriate order in accordance with law expeditiously, preferably within four weeks from the date of communication of this order. 19. The writ petition is, accordingly, allowed. 20. No order as to costs.