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2017 DIGILAW 169 (UTT)

Rajesh Kumar v. State of Uttarakhand

2017-03-08

K.M.JOSEPH, V.K.BIST

body2017
JUDGMENT : V.K. Bist, J. The father of the appellant was working as a Peon in Udairaj Hindu Inter College, Kashipur (from hereinafter referred to as the “Institution”. He died in harness on 23.01.2009. After the death of his father, the appellant moved a representation to respondent-institution on 18.02.2009 requesting the respondent-institution to give him compassionate appointment under the Dying in Harness Rules on Class III post. At that time, since no Class III post was vacant in the respondent-Institution, the request of the appellant for appointment on Class III post was not accepted. 2. It is the case of the appellant that due to poor financial condition of his family, under compelling circumstances, he moved another representation on 15.05.2009 requesting the respondent-institution to provide employment to him on Class IV post. On 19.06.2010, the petitioner was offered appointment on Class IV post. Since there were Class III posts vacant in the respondent-institution, the appellant again requested for giving him compassionate appointment. The application of the appellant was recommended by the Committee of Management for appointment on Class III post, but when no approval was given by the District Education Officer, the appellant filed Writ Petition (S/S) No. 587 of 2010 seeking the following prayers: “I. Issue a writ order or direction in the nature of mandamus directing the respondents to consider the petitioner for appointment on compassionate ground on the post of Assistant Clerk in Udairaj Hindu Inter College, Kashipur Udham Singh Nagar. II. Issue a writ order or direction in the nature of mandamus directing the respondents not to give compassionate appointment to any other candidate on the post of Assistant Clerk at Udairaj Hindu Inter College, Kashipur Udham Singh Nagar till the disposal of the present writ petition.” 3. The learned Single Judge dismissed the writ petition by holding that the appellant was never facing any hardship nor there was any such hardship for the family, as otherwise he would not have refused the appointment on the Class IV post. 4. Today, when the matter is heard, learned counsel for the appellant prayed that this Special Appeal be disposed of with direction to the respondent-institution to consider the claim of the appellant for appointment on Class IV post. 4. Today, when the matter is heard, learned counsel for the appellant prayed that this Special Appeal be disposed of with direction to the respondent-institution to consider the claim of the appellant for appointment on Class IV post. Learned counsel for the appellant also submitted that the appellant was offered appointment on Class IV post but at that time the appellant was under the impression that since Class III posts were vacant, he will be offered appointment against Class III post and, therefore, he did not join the Class IV post and filed a writ petition before this Court. Now, hardship is more and petitioner is ready to accept the appointment on Class IV post. 5. Learned counsel for the respondent submitted that the appellant’s case for compassionate appointment can be considered under Regulation 91 framed under Section 39 of the Uttarakhand School Education Act, 2006. The English translation of Regulation 91 is as follows: “91– If any employee of teaching staff or non teaching staff of any aided affiliated Secondary Institution (High School or Intermediate) who had been duly appointed as per the procedure prescribed, dies in harness, then a member of his/her family, who is not less than 18 years of age, even anything being contrary in the procedure prescribed for appointment, can be appointed on the post of trained teacher of Graduate level or on any post of non teaching staff provided the candidate fulfills the required essential conditions and is otherwise eligible for being appointed. The member will be given appointment in affiliated aided Primary, Junior High School on the basis of his/her eligibility on the post of teacher or on non-teaching staff. Explanation– For the purpose of this Rule, member of a family means the widow of the deceased/widower, son, unmarried or divorced daughter.” 6. Learned counsel for the respondent-institution Mr. Pramod Belwal submitted that the appellant’s case will be referred to the Education Authorities and in case, approval is granted, the Management has no objection to offer appointment to the appellant. 7. Mr. Pradeep Joshi, learned Standing Counsel for the State submitted that the case of the appellant shall be considered in accordance with law. 8. We record the above submissions of learned counsel for the parties and dispose of the appeal.