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2017 DIGILAW 660 (ALL)

SURENDRA BAHADUR SINGH v. STATE OF U. P.

2017-03-01

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard Mr. Harendra Pratap Singh, learned Counsel for the petitioner, learned Standing Counsel and Mr. H.B. Singh, learned Counsel for the opposite party No. 3. 2. Learned Counsel for the opposite parties have submitted that he has no objection if delay in filing the recall application IS condoned and further the writ petition is restored to its original number. 3. On due consideration, both the applications (C.M. Application No. 90012 of 2016 and 90013 of 2016) are allowed. 4. Delay in filing the recall application is condoned. The order dated 15.7.2014 is recalled. The writ petition is restored to its original number. 5. Since the writ petition is quite old and pertains to the year 2002, with the consent of the learned Counsel for the parties, it is being finally decided. 6. The petitioner has approached this Court, seeking a writ in the nature of mandamus commanding the opposite parties to consider his case for making appointment on the post of Assistant Teacher/Clerk under Dying-in-Harness Rules as well as to initiate inquiry and punish the opposite party No. 3 for exercising his powers arbitrarily and discriminatory. 7. Submission of the learned Counsel for the petitioner is that father of the petitioner, namely, Late Ram Ashrey, while working as Headmaster in Primary School, Shramau, Block Khero, District Raibareli, died on 15.2.1988. After the death of his father, no one in the family was in a position to bear the expenses of the family and the family came under great hardship. The petitioner, after completion of his Intermediate Examination in the year 1996, made an application on 21.8.1998 before the District Basic Education Officer, Raibareli for his appointment on the post of Assistant Teacher on compassionate ground.On receipt of the application, the District Basic Education Officer, Raibareli informed the petitioner that since his academic qualification is Intermediate and under the departmental instructions, the academic qualification B.A. is required for the appointment on the post of Assistant Teacher under Dying-in-Harness Rules, therefore, the petitioner is not eligible to be appointed on the said post. It was informed to the petitioner that if he is interested for appointment on a class IV post, then he should inform the District Basic Education Officer by 25.3.1999. It was informed to the petitioner that if he is interested for appointment on a class IV post, then he should inform the District Basic Education Officer by 25.3.1999. Thereafter, the petitioner had informed vide application dated 23.3.1999 to the Basic Education Officer that he is interested for appointment on the post of Assistant Teacher/Clerk on compassionate ground, therefore, his application be considered for the said post but as no action was taken by the District Basic Education Officer, the petitioner, vide application dated 7.4.1999, requested the District Basic Education Officer that as his family is suffering great hardship, therefore, he should be given appointment at the earliest on the post for which he is eligible. 8. Further submission of the learned Counsel for the petitioner is that in pursuance to the application of the petitioner dated 7.4.1999, the District Basic Education Officer, vide letter dated 10.5.1999, had given appointment to the petitioner on Class-IV post at Kanyapur Madhyamik Vidyalay, Nihastha, Block Khero, District Raibareli and the petitioner is now working at Purve Madhyamik Vidyalaya, Dukhaha, Block Khero, District Raibareli after his transfer from the said institution. Subsequently, on 2.4.2002, the petitioner came to know that the District Basic Education Officer has made appointment of two persons, namely, Sri Raman Kumar and Sri Rajesh Kumar on the post of Assistant Teachers on 3.12.1998 and 15.10.1998, respectively who were having academic qualification of Intermediate. The petitioner immediately feeling aggrieved by the discriminatory action of the District Basic Education Officer, moved a representation for his appointment on the post of Assistant Teacher but no action was taken by the opposite parties. In the meantime, the petitioner completed his graduation in the year 2001 and, thereafter, he requested to give him appointment on the post of Assistant Teacher under the provisions of Dying-in-Harness Rules. As no action was taken by the opposite party No. 3, the petitioner has filed the present writ petition, seeking direction against the opposite parties to consider his case for making appointment on the post of Assistant Teacher/Clerk under Dying-in-Harness Rules. 9. As no action was taken by the opposite party No. 3, the petitioner has filed the present writ petition, seeking direction against the opposite parties to consider his case for making appointment on the post of Assistant Teacher/Clerk under Dying-in-Harness Rules. 9. After hearing the learned Counsel for the petitioner, a query was made from him regarding qualification of the Assistant Teacher working in the Junior Basic Education School, the petitioner’s counsel instead of giving the answer to the query of the Court, has only submitted that the petitioner has been discriminated as two persons having similar qualification i.e. Intermediate were given appointment as Assistant Teachers by the opposite party No. 3, which is highly unjustified and unreasonable. 10. On examination of Annexures No. 5 and 6 to the writ petition which are the copies of appointment letters issued to the aforesaid two person, only this much is evident that Sri Raman Kumar and Sri Rajesh Kumar were given appointment as untrained Assistant Teacher vide orders dated 3.12.1998 and 15.10.1998. The said documents do not indicate that the said persons were having only Intermediate qualification. 11. At this juncture, it would be relevant to point out that Rule 8 U.P. Basic Education (Teachers) Service Rules, 1981, published in U.P. Gazette (Extra Ordinary) on 3.1.1981, deals with the academic qualifications and mentions that essential qualification of the candidates for appointment to a post referred to in clause (5) of rule 5 would be as shown below against each. Rule 8 is being extracted below: “8. Rule 8 is being extracted below: “8. Academic Qualifications : The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each: Post Academic Qualifications (i) Mistress of Nursery school Certificate of teaching (Nursery) from a recognized training institution in Uttar Pradesh or any other training qualification recognized by the Government as equivalent thereto (ii) Assistant Master and Assistant Mistress of Junior Basic School A Bachelor’s Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher’s Certificate, Hindustani Teacher’s Certificate, Junior Teacher’s Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto: Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course. (2) The essential qualifications of candidates for appointment to a post referred to in sub-clause (iii) and (iv) of clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi and Urdu shall be as follows: (I) A Bachelor’s Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects, and (II) Training qualification consisting of a Basic Teacher’s Certificate, Hindustani Teacher’s Certificate, Junior Teacher’s Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto. (3) The minimum experience of candidates for appointment to a post referred to in clause (b) of Rule 5 shall be as shown below against each: Post Experience (i) Head Mistress of Nursery School At least five years’ teaching experience as permanent Mistress of Nursery School (ii) Headmaster or Head Mistress of Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School At least five years’ teaching experience as permanent Assistant Mistress or Assistant Master of Junior Basic School, Assistant Master or Assistant Mistress of Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School (iii) Head Master or Head Mistress for Senior Basic School At least five years’ experience as permanent Head Master or Head Mistress of Junior Basic School or permanent and Assistant Master or Assistant Mistress of Senior Basic School, as the case may be. Provided that if sufficient number of suitable or eligible candidates are not available for promotion to the posts mentioned as serial numbers (ii) or (iii) the field of eligibility may be extended by the Board by giving relaxation in the period of experience. (4) The essential qualifications of candidates for appointment to the post referred to in clause (a) and sub-clause (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu Language shall be as follows: (i) A Bachelor’s Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto with Urdu as one of the subjects. Note: A candidate who does not possess the aforesaid qualification in Urdu shall be eligible for appointment if he possesses a Master’s Degree in Urdu. (ii) Basic Teacher’s Certificate from any of the training centers in Lucknow, Agra, Mawana in district Meerut and Sakaldiha in district Chandauli established by the Government for imparting training for teaching Urdu or any other training qualification recognized by the Government as equivalent thereto.” 12. Admittedly, the petitioner, at the time of making the application for compassionate appointment, possessed qualification of Intermediate only, therefore, the petitioner was not eligible for appointment on the post of Assistant Teacher in view of Rule 8 of the U.P. Basic Education (Teachers) Service Rules,1981. 13. Admittedly, the petitioner, at the time of making the application for compassionate appointment, possessed qualification of Intermediate only, therefore, the petitioner was not eligible for appointment on the post of Assistant Teacher in view of Rule 8 of the U.P. Basic Education (Teachers) Service Rules,1981. 13. As there is nothing on record to establish that Sri Raman Kumar and Sri Rajesh Kumar, who were appointed as untrained Assistant Teacher, possessed only the Intermediate qualification, therefore, the version of the petitioner cannot be accepted. Moreso, the appointment of the aforesaid two persons has not been challenged in the present proceedings. 14. Before proceeding any further, it would be apt to point out that the paramount object of the Dying-in-Harness scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical ground thereby leaving his family in penury and without any means of livelihood, in order to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency. The efficiency of the administration cannot be completely sacrificed while making appointment. In cases of compassionate appointments, the authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crisis resulting from the employee’s death. 15. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favor of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration, taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. 16. In such cases, out of pure humanitarian consideration, taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. 16. Thus, it can be easily summed up that the whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post, much less a post held by the deceased. Mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis then a job is to be offered to the eligible member of the family. 17. In the case of Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC 138 , the Apex Court has held as under : “4.........The only ground which can justify compassionate employment is the penurious condition of the deceased’s family. Neither the qualifications of his dependent nor the post which he held is relevant. 5......... If the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.” 18. Similarly in the case of Pepsu Road Transport Corporation v. Satinder Kumar and another, 1995 Supp (4) SCC 597, it was held by the Hon’ble Supreme Court as under : “we find it difficult to approve this reasoning. The appointing authority cannot ignore the fact that while the minimum qualification for eligibility may be metric, however, generally graduates and even post-graduate degreeholders respond and offer themselves for clerical appointments. Courts cannot ignore this fact and direct that possession of minimum qualification alone would be sufficient. Some discretion to the appointing authority as to the choice of post, taking into account the realities of the employment-market, should be available. Courts cannot ignore this fact and direct that possession of minimum qualification alone would be sufficient. Some discretion to the appointing authority as to the choice of post, taking into account the realities of the employment-market, should be available. Then again it would be erroneous for the Courts to compel appointment to particular posts. The fact of the matter is that though this kind of appointment is sui generis and it is reasonable to expect that as and when such claims arise a provision should be made for accommodating such claims from out of the posts available for direct recruitment, the Corporation is not unreasonable when it suggests that the qualifications for such appointments should broadly be commensurate with the level of candidates who offer themselves for appointment and not merely the minimum qualification.” 19. In the case of State of Rajasthan v. Umrao Singh, (1994) 6 SCC 560 , the Apex Court has categorically held that once the right has been consummated, any further or second consideration for a higher post on the ground of compassion would not arise. 20. In the case of Life Insurance Corporation of India v. Mrs. Asha Ramachandran Ambekar and others, JT 1994 (2) SC 183, the Apex Court propounded that even the High Court and Administrative Tribunals cannot give direction for appointment of a person on compassionate grounds but can merely direct consideration of the claim for such an appointment. 21. In Union of India and others v. Central Administrative Tribunal and another, 2011(4) ADJ 158 (DB) and Vivik Kumar Sharma and others v. State of U.P. and another; 2015(2) ADJ 3 (DB), which has been relied upon by the respondents it has been reiterated that once the right of compassionate appointment was consummated, any further consideration for higher post on the ground of compassion would not arise. 22. On due consideration, this Court is of the view that since the petitioner did not possess the required qualification for the post of Assistant Teacher under the Rules as he was having Intermediate qualification at the time of making application for compassionate appointment, therefore, the District Basic Education Officer has rightly given appointment to the petitioner on Class IV post in pursuance to the request of the petitioner made by him through application dated 7.4.1999. 23. 23. Here, it would be relevant to mention that once a person is given appointment according to his/her qualification, it is not open for him to claim appointment on higher post after possessing requisite qualification of a higher post in view of the decision of the Apex Court in the case of I.G. (Karmik) and others v. Prahlad Mani, (2007) 6 SCC 162 , wherein it was held once the appointment on compassionate ground as per the scheme had been completed any further or second consideration for a higher post on the ground of compassion would not arise. 24. In view of the aforesaid discussion and legal position, I do not find any good ground to interfere in exercise of discretionary jurisdiction under Article 226 of the Constitution and the writ petition lacks merit. Accordingly, the writ petition is hereby dismissed. Parties to bear their own costs.