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2019 DIGILAW 24 (ALL)

Ashutosh Tripathi v. State Of U. P.

2019-01-03

PANKAJ MITHAL, ROHIT RANJAN AGARWAL

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ORDER : 1. Heard Sri Radha Kant Ojha, Senior Counsel assisted by Sri Ratnakar Upadhyay, learned counsel for the appellant, learned Standing Counsel for the respondents No. 1 and 2, Sri Ved Byas Mishra, learned counsel for the respondent No.3 and Sri Shashi Nandan, Senior Counsel assisted by Sri Indra Raj Singh, learned counsel for the respondents No. 4 and 5. 2. The appellant has preferred this intra-court appeal against the judgment and order dated 02.11.2018 passed by the learned Single Judge allowing in Writ Petition No.23275 of 2018, C/M, Adarsh Shri Ram Sanskrit Mahavidyalaya and another Vs. D.I.O.S. and 3 others. 3. The learned Single Judge by the aforesaid order quashed the order dated 17.10.2018 passed by the D.I.O.S. Jaunpur allowing the representation of the appellant for his appointment on compassionate basis on the post of Assistant Teacher in Adarsh Shri Ram Sanskrit Mahavidyalaya Changapur, Jaunpur. 4. The facts of the case reveal that the appellant sought an appointment on compassionate basis on account of the death of his father, who was working as Assistant Teacher. 5. The D.I.O.S. in view of the directions of this court dated 30.08.2018 passed in the Writ Petition No.10978 of 2016 considered the claim of the appellant and by the aforesaid order dated 17.01.2018 directed for the appointment of the appellant as Assistant Teacher. This order was challenged by the Committee of Management by means of the above writ petition which has been allowed. 6. The learned Single Judge by the impugned judgment and order quashed the order of the D.I.O.S. directing for the appointment of the appellant on the post of Assistant Teacher and with the consent of the parties directed the D.I.O.S. to consider the claim of the appellant for the appointment on compassionate basis on any other post. 7. One of the submissions of the learned counsel for the appellant is that once the D.I.O.S. had taken a decision pursuant to the order of this court dated 30.08.2018 to appoint the appellant as Assistant Teacher, there was no justification to disturb the same in exercise of writ jurisdiction. 8. The above contention of the learned counsel for the appellant has no merit as there is no provision in law to accord appointment on compassionate basis on the post of Assistant Teacher. Thus, no appointment can be made de hors the statutory provisions. 9. 8. The above contention of the learned counsel for the appellant has no merit as there is no provision in law to accord appointment on compassionate basis on the post of Assistant Teacher. Thus, no appointment can be made de hors the statutory provisions. 9. The submission of Sri Ojha is that the learned Single Judge has only considered the provisions relating to compassionate appointment in the University whereas the appointment of the appellant is in a Post Graduate Sanskrit College. 10. It is not disputed that the services of teachers in a Post Graduate Sanskrit Colleges are governed by the Uttar Pradesh Madhyamik Sanskrit Siksha Parishad (Sansthaon Ke Pradhanon, Adhyapkaon Evam Sansthaon Ke Anya Karmchariyon Ki Niyukti Tatha Sewa Shartein) Viniyamawali, 2009. These Viniyamavalies do not provide for giving compassionate appointment. Thus, to mitigate the hardship the State Government vide Government Order dated 04.12.2013 provided that till the said Viniyamawali is amended so as to permit compassionate appointment, the statutes of the Sampurnanand Sanskrit Vishwavidyalaya, Varanasi especially statute 21.06 shall apply. 11. The said statute nowhere provides for any compassionate appointment on the post of a teacher much less that of Assistant Teacher. 12. The learned Single Judge relying upon an earlier decision of the court dated 27.02.2018 passed in Writ Petition No.62798 of 2017, Aditya Pratap Singh Vs. State of U.P. and others held that in the absence of any provision for compassionate appointment on the post of Assistant Teacher, the appellant is not entitle to any such appointment and accordingly, the order of the D.I.O.S. is not sustainable in law. 13. The argument that the High Court vide order dated 30.08.2018 had permitted compassionate appointment as Assistant Teacher and if not possible on any other suitable post, therefore, direction for offering appointment as Assistant Teacher is not illegal is per se not tenable in law. The Apex Court in V. Sivamurthy and another Vs. State of Andhra Pradesh and others (2008) 13 SCC 730 has categorically laid down that compassionate appointment is an exception to the general rule and that it should be limited to Class-III and IV post only. The direction of the High Court, if any, to give appointment on the post of Assistant Teacher as such is contrary to the dictum of the Supreme Court and cannot be given any weightage. 14. The direction of the High Court, if any, to give appointment on the post of Assistant Teacher as such is contrary to the dictum of the Supreme Court and cannot be given any weightage. 14. We do not find any error or illegality in the aforesaid part of the order of the learned Single Judge. 15. In respect to the other part of the order whereby directions have been issued to the D.I.O.S. to consider the claim of the appellant for compassionate appointment on any other post, the appellant cannot challenge, the same as it has been passed on the basis of consent. 16. Learned counsel for the appellant drew the attention of the court to the previous order of the Division Bench dated 22.11.2018 whereby learned Single Judge was given time to find out as to how the second part of the order of the learned Single Judge would be implemented. 17. Learned Standing Counsel on the basis of the instructions informs that in non of the Sanskrit colleges of the State any post of a clerk is vacant. The D.I.O.S. vide letter dated 01.12.2018 has sought necessary guidelines in this respect from the State Government and it is expected that very soon a supernumerary post would be created in this regard. 18. In view of the aforesaid facts and circumstances, we dispose of this appeal without disturbing the impugned judgment and order of the learned Single Judge with the direction to the respondents No.1 and 2 to consider the claim of the appellant for appointment on compassionate basis on any other suitable post as may be created by the State Government in accordance with law after hearing the concerned parties including, if possible, respondent No.4 within two months of placement of this order before them. The Writ Petition is disposed off.