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2019 DIGILAW 301 (ALL)

Saumitra Kumar Upadhyaya v. State of U. P.

2019-02-05

CHANDRA DHARI SINGH, GOVIND MATHUR

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JUDGMENT : Chandra Dhari Singh, J. 1. Heard learned counsel for the appellant, learned Standing Counsel for the State-respondents and perused the record. 2. This appeal is before us to examine correctness of the order dated 02.05.2018 passed by learned single Bench in Writ -A No. 16471 of 2008 whereby the writ petition was dismissed. 3. Brief facts of the case is that the respondent no.6 herein was appointed on compassionate ground on 17.04.1996 as an Assistant Clerk in the institution and since then he is continuing in the said institution, whereas appellant was appointed on 27.11.1992 on compassionate ground as Assistant Clerk against a supernumerary post as per the then existing regulations, which provided for class-III appointments on a supernumerary post as well. 4. Admittedly, the appellant was granted appointment on a supernumerary post in the institution, namely, Janta Inter College, Nauhjheel, Mathura, in pursuance to which he reported for joining on 01.01.1993. Later on he was adjusted/absorbed against a regular vacancy in the respondent's institution, namely, Rastriya Inter College, Raya on 30th September, 2000. The seniority came to be determined by the District Inspector of Schools vide order dated 02.02.2008 and the respondent no.6 was held senior to the appellant on the ground that his substantive appointment in the cadre was earlier in point of time. 5. Vide order dated 02.02.2008 passed by the District Inspector of Schools, the earlier services rendered by the appellant against the supernumerary post has been excluded and the seniority has been counted only from the date of his appointment against regular and substantive post i.e. on 30.09.2000. The District Inspector of Schools again passed the order dated 20.03.2008, by which cancelled its earlier order dated 02.02.2008 and then granted his approval to the promotion of the appellant as head clerk vide its order dated 30.04.2008. 6. Against the order dated 30.04.2008 the respondent no.6 filed Writ – A No. 16471 of 2008 on the ground that order dated 20.03.2008 passed by District Inspector of Schools was an ex-parte order and has been passed without providing opportunity of hearing to the respondent no.6 and therefore, the same is bad, arbitrary and illegal. 7. 6. Against the order dated 30.04.2008 the respondent no.6 filed Writ – A No. 16471 of 2008 on the ground that order dated 20.03.2008 passed by District Inspector of Schools was an ex-parte order and has been passed without providing opportunity of hearing to the respondent no.6 and therefore, the same is bad, arbitrary and illegal. 7. The learned Single Judge vide order dated 02.05.2018 allowed the writ petition and set aside the order dated 20.03.2008 passed by District Inspector of Schools and remitted the matter to the District Inspector of Schools, Mathura to decide the matter a fresh in the light of the observations and directions made in the order, within a period of three months from the date of production of a certified cop[y of the order. 8. Aggrieved by order dated 02.05.2018 passed by learned Single Judge of this Court, the present Special Appeal has been filed on the ground that impugned judgment and order was passed without considering the provisions of Regulations 101 to 107 of the Chapter III of the Regulations framed under Intermediate Education Act, 1921, which clearly emphasis absorption of compassionate appointee against supernumerary post against substantively vacant post first in point of time before granting any further compassionate appointment. 9. Learned counsel appearing on behalf of appellant submitted that consequently such compassionate appointment against a substantively vacant post granted to the respondent no.6 on 17.04.1996 without having firstly absorbed the appellant against a substantively post in the district was illegal and contrary to the statutory regulations governing such compassionate appointment. 10. Learned counsel appearing on behalf of the appellant submitted that the compassionate appointment is a permanent appointment, inheriting all benefits of service including seniority and there existing no rational for taking a contrary view. It is further submitted that the learned Single Judge has failed to examine the correctness of the directions given by the Director of Education (Secondary) by his order dated 14.03.2008 specifying the issue that the compassionate appointment of the appellant was dated 27.11.1992 but the compassionate appointment of the respondent no.6 was of the year 1996. It is further submitted that the learned Single Judge has failed to examine the correctness of the directions given by the Director of Education (Secondary) by his order dated 14.03.2008 specifying the issue that the compassionate appointment of the appellant was dated 27.11.1992 but the compassionate appointment of the respondent no.6 was of the year 1996. The deduction towards general provident fund from the salary of the appellant has been regularly made from 01.01.1994 and the appellant has also been sanctioned selection grade pay scale with effect from 01.01.2003 after completion of ten years satisfactory service clearly indicates that all benefits of the regular and permanent service stood granted to the appellant from 01.01.2003 being the date of his initial substantive appointment. 11. Learned counsel for the appellant further argued that the order dated 02.02.2008 was based upon mistaken believe of the date of substantive appointment of the appellant was 30.09.2000 as in fact date of substantive appointment of the appellant was 27.11.1992 and all benefits of regular and permanent appointment stood accorded to the appellant right from the date of his joining on 01.01.1993. Learned counsel for the appellant submitted that there existed no justification for the controversy to be remitted to the District Inspector of Schools for fresh consideration as the dispute involved, is purely legal in nature. 12. Learned State Counsel appearing on behalf of the respondents/State vehemently opposed the contentions raised on behalf of the appellant and submitted that the order passed by the District Inspector of Schools was an ex-parte, without providing opportunity of hearing to the respondent no.6. It is further submitted that the District Inspector of Schools does not have any legal authority to review or cancel his earlier order dated 02.02.2008 and as such the order dated 20.03.2008 passed by District Inspector of Schools recalling the order dated 02.02.2008 is without jurisdiction. The order dated 02.02.2008 passed by the District Inspector of Schools holding the respondent no.6 to be senior the appellant while the order dated 20.03.2008 holds the appellant senior to the respondent no.6. However, the order dated 20.03.2008 has been passed without providing any show cause notice to the respondent no.6 or affording any opportunity of being heard to the respondent no.6 to show cause as to why the order dated 02.02.2008 be maintained or be not set aside. 13. However, the order dated 20.03.2008 has been passed without providing any show cause notice to the respondent no.6 or affording any opportunity of being heard to the respondent no.6 to show cause as to why the order dated 02.02.2008 be maintained or be not set aside. 13. Learned counsel appearing on behalf of respondent no.6 submitted that there is no illegality or perversity in the order dated 02.05.2018 passed by the learned Single Judge as the order impugned has been passed after considering all the relevant facts and material available on record. 14. We have heard learned counsel for the appellant, learned Standing Counsel appearing on behalf of the State-respondents as well as learned counsel appearing on behalf of respondent no.6 and perused the records. 15. In relation to Government employees the Government of Uttar Pradesh has made the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the 1974 Rules'), wherein provision is made for recruitment of a dependent of the deceased Government Servant dying in harness, who is not already employed by the Central Government, by State Government or by any Corporation which comes under the Central Government or the State Government. For that purpose the normal recruitment rules are relaxed. The said Rules are, however, not applicable to the staff employed in Government recognized aided institutions since they are not Government Servants. With regard to appointment of dependents of teaching/non teaching staff of such institutions provision was made for the first time by Circular dated September 23, 1981 whereby it was directed that where any Teaching/non Teaching employee of the non-government aided Secondary Schools dies in harness untimely and who was appointed permanent/regularly in his post, one member of his family having qualifications prescribed for non teaching post, will be given employment as early as possible, if he so desires. It was further directed that the procedure prescribed for appointment for these posts shall not be strictly adhered to but it should be necessarily considered that the concerned person is qualified to be appointed on the non teaching post under the relevant rules/orders for this purpose. It was further directed that the procedure prescribed for appointment for these posts shall not be strictly adhered to but it should be necessarily considered that the concerned person is qualified to be appointed on the non teaching post under the relevant rules/orders for this purpose. In the said circular it was also laid down that a person to be appointed must have completed the age of 18 years at the time of his appointment and as far as possible the person shall be considered for the appointment in the same institution in which the employee at the time of his death was working and if difficulty is faced in giving appointment due to non-availability of vacancies in the non-teaching post then the appointment can be made in any other similar Secondary School, where such vacancy is available and the criteria will be that any one member of the family of the employee dying in harness and possessing requisite qualifications is given employment without any delay. Subsequently, by notification dated July 30, 1992, the State Government amended the Regulations made in exercise of the powers conferred on it under Sub-section (4) of Section of the U.P. Intermediate Education Act, 1921, and inserted Regulations 101 to 107 after Regulation 100 in Chapter III of the Regulations. Regulations 101 to 107 were in these terms :- "101 : The appointing authority shall not fill any vacancy in the non-teaching staff of a recognized aided institution except with the prior approval of the Inspector. 102 : A vacancy to be caused on account of retirement of an employee holding non-teaching post in a recognized aided institution shall be intimated three months before the date of his retirement and any vacancy occurring due to death, resignation or for any other reasons shall be intimated within seven days from the date of its occurrence to the Inspector by the appointing authority. 103 : In case an employee of teaching or non-teaching staff of a recognized aided institution who has been duly appointed in accordance with the prescribed procedure, dies in harness one member of his family not below the age of 18 years shall be given appointment to a nonteaching post notwithstanding anything contrary in the prescribed procedure for recruitment if such member possesses requisite educational qualifications prescribed for the post and is otherwise suitable for appointment. Explanation.-For the purposes of this regulation 'member of family' shall mean widow/widower, son, unmarried or widowed daughter of the deceased. NOTE : This regulations and regulation 104 to 107 shall apply in respect of those deceased employees also who dies on or after January 1,1981. 104 : The Management or Principal or the Head Master, as the case may be, of the recognized aided institution shall submit a report giving the name, post held, scale of pay, date of appointment, date of death, name of the employer institution of the deceased and the name, educational qualifications and age etc. of the family members thereof to the inspector within seven days from the date of occurrence of death. The inspector shall register the particulars of the deceased in a register to be maintained by him. 105 : A member of the family of the deceased employee referred to in regulation 104 shall submit an application to the concerned Inspector for appointment to a post in the non-teaching cadre. The application shall be considered by a Committee and after the Committee has recommended his appointment, the Inspector shall send the application to the Management or the Principal or the Head Master, as the case may be, of the institution where the applicant is to be employed in accordance with the provisions contained in regulation 106 for issuing appointment order. The Committee shall comprise : 1. Inspector: Chairman 2. Accounts Office in the office of DIOS: Member 3. District Basic Shiksha Adhikari: Member 106 : The appointment of the family member of the deceased employee shall be made, as far as possible, in the same institution where the deceased employee was serving at the time of his death. If there is no vacancy in non-teaching cadre in such institution, the appointment shall be made in another recognized aided institution of the district where there is such vacancy : Provided that if such vacancy for the time being does not exist in any recognized aided institution of the district concerned, the appointment shall be made against a supernumerary post in the institution where the deceased was working at the time of his death. Such supernumerary post shall be deemed to have been created for this purpose and be continued till a vacancy becomes available in that institution or in any other recognized aided institution in the district and in such case the service rendered by the incumbent of the supernumerary post shall be counted for the fixation of pay and retirement benefits. 107 : The appointment letter shall be issued under intimation to the Inspector by the recognized aided institution to which the application for issuing appointment letter is sent by the Inspector within a period of one month from the date of receipt of the application." 16. It is submitted on behalf of the appellant that the learned Single Judge has not considered the provisions of the aforesaid Regulations of Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921, which clearly envisages absorption of compassionate appointee against a supernumerary post against the substantively vacant post in point of time before granting any further compassionate appointment. The appellant and the respondent no.6 both are compassionate appointee. It is also stated by the appellant that in absence of any pleading about violation of principles of natural justice, the learned Single Judge has recorded the finding that the order dated 20.03.20098 passed by respondent no.3 is in violation of principles of natural justice. It is admitted fact which was also not considered by the learned Single Judge that vide order dated 14.03.2008 passed by the Director of Education (Secondary) specified the fact that compassionate appointment of the appellant is dated 27.11.1992 while the compassionate appointment of respondent is of 1996. The deduction towards general provident fund of the appellant has been regularly made from 01.01.1994 and after completing 10 years length of satisfactory service the appellant has also been sanctioned the selection grade pay scale with effect from 01.01.1993. This fact indicates that all benefit of regular and permanent service was granted to the appellant since 01.01.1993 being the initial date of his substantive appointment. 17. That vide order dated 02.02.2008 the respondent no.6 was held senior to the appellant on the ground that his substantive appointment in the cadre was earlier in point of time. Again the District Inspector of Schools passed the order dated 20.03.2008 canceling his earlier order and granted his approval to the promotion of the appellant as Head Clerk vide order dated 30.04.2008. 18. Again the District Inspector of Schools passed the order dated 20.03.2008 canceling his earlier order and granted his approval to the promotion of the appellant as Head Clerk vide order dated 30.04.2008. 18. In the instant case the question of inter-se seniority between the appellant and the respondent no.6 is subject matter of contest before the District Inspector of Schools, Mathura. The District Inspector of Schools has cancelled his own order dated 02.02.2008, whereby the respondent no.6 was held to be senior to the appellant. The order dated 02.02.2008 was based upon mistaken believe of the date of substantive appointment of the appellant was 30.09.2000 and communicated the date of substantive appointment of the appellant since 27.11.1992 and all benefits of regular and permanent stood accorded to the appellant right from the date of his appointment on 01.01.1993. 19. It is well settled law that administrative authorities have inherent power to review its own order, in case, it has been obtained by misrepresentation of facts or playing fraud 20. Having regard to the facts that the appellant has been appointed much earlier than the respondent no.6. There is no dispute about the facts regarding initial appointment of the appellant and the respondent no.6 on compassionate appointment against substantive post. We are, therefore, unable to uphold the direction given by the learned Single Judge remitting the matter to the District Inspector of Schools to decide the matter afresh in the light of the observations made in the order dated 02.05.2018. 21. In the result, the special appeal is allowed. The impugned order dated 02.05.2018 passed by learned single Bench in Writ A No. 16471 of 2008 is hereby set aside. The orders dated 20.03.2008 and 30.04.2008 passed by respondent no.3 are affirmed.