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2022 DIGILAW 1836 (ALL)

Nabeel Husain v. State of U. P.

2022-11-22

MANOJ MISRA, VIKAS BUDHWAR

body2022
JUDGMENT : 1. Heard counsel for the appellant and learned Standing Counsel for the respondents. In Re: Delay Condonation Application No. 01 of 2022 By this Delay Condonation Application which is supported by an Affidavit, the appellant seeks condonation of about 20 days' delay in filing the Appeal against the judgement and order dated 26.9.2022 passed by learned Single Judge in Writ A No. 15313 of 2022. Considering the explanation offered in the Affidavit filed in support of Delay Condonation Application, the delay in filing the appeal is condoned. The Delay Condonation Application is allowed. Office to assign a regular number to the appeal. In Re: Appeal This intra Court appeal is against the judgment and order of learned Single Judge passed on 26.9.2022 in Writ A No. 15313 of 2022 whereby the Writ Petition of the petitioner seeking quashing of the order dated 23.5.2022 rejecting his claim for compassionate appointment, has been dismissed. 2. The undisputed facts giving rise to the instant Appeal are as follows. 3. The father of the petitioner i.e. Rahat Husain was an Assistant Teacher in Government Girls Inter College, Etah which is attached to Pandit Deen Dayal Upadhyay Government Model Inter College, Moiuddinpur, Jaithra (Etah). He died in harness on 21.4.2021. As per the heirs certificate including the service record, Sri Rahat Husain had five heirs i.e. Tabassum Khan (wife), Nabeel Husain (son-petitioner-appellant), Iram Jafri (married daughter), Km. Alihara Husain (unmarried daughter) and Km. Alkhizra Husain (unmarried daughter). The wife of Rahat Husain i.e. Tabassum Khan is a Head-Mistress in a Basic School under the Basic Shiksha Parishad. 4. On death of Rahat Husain, the petitioner applied for compassionate appointment by taking recourse to the provisions of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (''for short 1974 Rules''). As the claim of the petitioner was not being considered, Writ A No. 1019 of 2021 was filed for a direction upon the concerned respondent to consider the claim of the petitioner for appointment on the post of Assistant Teacher in Government Girls Inter College, Etah on compassionate ground. The said petition was disposed off vide order dated 2.3.2022 requiring the concerned officer to take an appropriate decision. The said petition was disposed off vide order dated 2.3.2022 requiring the concerned officer to take an appropriate decision. Pursuant to that direction, the District Inspector of Schools, Etah (DIOS) considered the claim and rejected it by order dated 23.5.2022, inter alia, on the ground that spouse of the deceased employee was a Headmistress in a Basic School under the Basic Shiksha Parishad. This order dated 23.5.2022 was challenged in Writ A No. 15313 of 2022 which has been dismissed by the order impugned in this appeal. 5. We have heard counsel for the appellant and the learned Standing Counsel for the Respondents at length. 6. It is not in dispute that the claim of the appellant for compassionate appointment was made under the 1974 Rules. The relevant portion of Rule 5 (1) of the 1974 Rules is extracted below: ''5. Recruitment of a member of the family of the deceased.-(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules.....'' 7. Perusal of the aforesaid extracted Sub-Rule (1) of Rule 5 of 1974 Rules would indicate that the claim for compassionate appointment is not maintainable where the spouse of the deceased Government servant is already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government. 8. In the instant case, there is no dispute that the spouse of the deceased employee, namely Tabassum Khan, is employed as Head-Mistress of a primary institution under the Board of Basic Education which is established by the State Government under Section 3 of the U.P. Basic Education Act, 1972 and is under the control of the State Government as per Section 13 of the 1972 Act. 9. 9. The learned counsel for the appellant to wriggle out of the situation submits that Tabassum Khan is appellant's step mother. Appellant is son of predeceased wife of deceased employee Rahat Hussain therefore, appellant's case is a typical case where he would get no benefit of his step mother's employment. 10. The above submission is not acceptable because compassionate appointment cannot be claimed as of right. It can be provided only if the policy or the rules governing such appointment permits. Rule 5(1) allows a claim for compassionate appointment only when the spouse of the deceased employee is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government therefore, once it is not in dispute that Tabassum Khan, spouse of the deceased employee was under employment as noticed above, the claim for compassionate appointment was not sustainable. Consequently, the claim of the petitioner for compassionate appointment was rightly rejected and the learned Single Judge was justified in dismissing the writ petition. 11. The Appeal is dismissed.