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2023 DIGILAW 1875 (ALL)

Abhishek Singh v. State of U. P.

2023-08-04

MANJIVE SHUKLA

body2023
JUDGMENT : MANJIVE SHUKLA, J. 1. Heard Mr. Anurag Shukla, learned counsel appearing for the petitioner and learned Standing Counsel appearing for the Respondents No. 1 & 2 as well as learned counsel appearing for the Respondents No. 3 & 4. 2. Petitioner through the present Writ Petition has challenged the order dated 20.12.2022 passed by the District Basic Education Officer, Bareilly whereby petitioner's claim for compassionate appointment on a Class-III post has been rejected on the ground that on the date of death of his father i.e. on 13.08.2017, he was not having Intermediate qualification which is necessary for appointment on a Class-III Post. 3. Facts of the case in brief are that father of the petitioner while working on the post of Assistant Teacher in Senior Basic School Kunwarpur, Dan Kunwar, Block-Bhadpura, District Bareilly died in harness on 13.08.2017. Petitioner after death of his father submitted an application on 28.03.2018 to District Basic Education Officer, Bareilly whereby petitioner informed that he was minor and immediately after attaining the age of majority, he will submit application for compassionate appointment in place of his father. 4. Petitioner passed out his Intermediate examination on 29.04.2018 and, thereafter he filed an application for his compassionate appointment on Class-III post and the said application was duly forwarded by the Block Education Officer, Block Bhadpura, District Bareilly to the District Basic Education Officer, Bareilly, vide his letter dated 3.11.2020. Petitioner along with his application also submitted affidavits given by his family members wherein it was categorically mentioned that they do not have any objection in the compassionate appointment of the petitioner. 5. The District Basic Education Officer, Bareilly vide his letter dated 29.06.2021 required the petitioner to give his option for appointment on Class-IV post but petitioner in response thereof, submitted an application to the District Basic Education Officer, Bareilly on 9.12.2021 whereby he requested that he is duly qualified for appointment on Class-III post and therefore, he may be given compassionate appointment on Class-III post. 6. 6. Since application of the petitioner for compassionate appointment was not considered and decided by the District Basic Education Officer, Bareilly, as such, under compelling circumstances, petitioner filed Writ-A No. 10367 of 2022 (Abhishek Singh vs. State of U.P. and Others) which was finally disposed of by this court vide order dated 20.07.2022 whereby direction was given to the District Basic Education Officer, Bareilly to consider and decide petitioner's representation by passing speaking and reasoned order. 7. The District Basic Education Officer in compliance of order dated 20.07.2022 has passed the order on 20.12.2022 which has been impugned in the present writ petition. 8. The District Basic Education Officer vide order dated 20.12.2022 has rejected claim of the petitioner for his compassionate appointment on a Class-III post on the ground that on the date of death of his father, petitioner was not having qualification of Intermediate which is mandatory for appointment on a Class-III post. The District Basic Education Officer in his order dated 20.12.2022 has recorded a finding that Clause 3(5) of the Government Order dated 4.09.2000 provides that for compassionate appointment, dependent of the deceased government servant must possess qualification required for appointment on a post on the date of death itself. 9. Clause 3(5) of the Government Order dated 4.08.2000 is extracted as under: 10. Learned counsel appearing for the petitioner has submitted that the District Basic Education Officer while passing order dated 20.12.2022 has not taken into consideration that the provisions made in Clause 3(5) of the Government Order dated 4.08.2000 has already been read down by this Court vide judgment and order dated 4.05.2022 passed in Writ-A No. 6640 of 2021 (Pawani Awasthi vs. State of U.P. and Others). 11. Learned counsel appearing for the petitioner has further argued that this Court in its judgment rendered in the case of Pawani Awasthi vs. State of U.P. and Others (Supra) has provided that Clause 3(5) of the Government Order dated 4.09.2000 shall be read to mean that dependent of the deceased employee who applies for compassionate appointment should possess the minimum educational qualification prescribed for the post on the date of submission of such application or on the date of being considered for selection but within time limit prescribed by Clause 3(8) of the said Government Order. Learned counsel appearing for the petitioner has stressed upon that petitioner has passed out his Intermediate examination on 29.04.2018 and thereafter he has filed his application for compassionate appointment on Class-III post, therefore, in view of the aforesaid judgment passed by this Court, he is entitled for his case to be considered by the District Basic Education Officer, Bareilly for compassionate appointment on Class-III post. 12. Learned counsel appearing for the petitioner has, thus concluded his arguments by submitting that the order dated 20.12.2022 passed by the District Basic Education Officer cannot sustain in the eyes of law as findings recorded in the said order are contrary to the decision of this Court rendered in the case of Pawani Awasthi vs. State of U.P. and Others (Supra), therefore, it is in the fitness of things that the order dated 20.12.2022 may be quashed and matter may be remanded to the District Basic Education Officer, Bareilly for considering the case of the petitioner for appointment on Class-III post, afresh. 13. Per contra, learned counsel appearing for the Respondents No. 3 and 4 has submitted that the order dated 20.12.2022 passed by the District Basic Education Officer, Bareilly is in consonance with the provisions made in the Government Order dated 4.09.2000. 14. Learned counsel appearing for the Respondents No. 3 and 4 has further argued that Clause 3(5) of the Government Order dated 4.09.2000 categorically provides that candidates seeking compassionate appointment must possess minimum educational qualification provided for the post on the date of death of the government servant and since petitioner's father died on 13.08.2007 and admittedly on the said date, petitioner was not having Intermediate qualification and, therefore, he is not eligible for appointment on the Class-III post as such, the order dated 20.12.2022 passed by the District Basic Education Officer, Bareilly does not suffer from any illegality or infirmity. 15. Learned counsel appearing for the Respondents No. 3 and 4 has concluded his arguments by submitting that the order dated 20.12.2022 impugned in the present writ petition is perfectly legal and writ petition filed by the petitioner is liable to be dismissed by this Court. 16. I have considered rival submissions advanced by the learned counsels appearing for the parties. 17. 16. I have considered rival submissions advanced by the learned counsels appearing for the parties. 17. I find that the State Government has issued a Government Order on 4.09.2000 whereby procedure for making compassionate appointment of the dependents of the deceased teachers of schools run by U.P. Basic Education Board, has been provided. Clause 3(5) of the Government Order dated 4.09.2000 provides that if the dependent of the deceased employee is having Intermediate qualification on the date of death of the concerned employee then the case of the said dependent can be considered for appointment on a Class-III post. 18. Clause 3(5) of the aforesaid Government Order dated 4.09.2000 has been considered by this Court in Pawani Awasthi vs. State of U.P. and Others (Supra) and vide judgment and order dated 4.05.2022, the aforesaid Clause 3(5) has been read down and it has been provided that provisions of Clause 3(5) of the Government order dated 4.09.2000 mean that the dependent of the deceased employee who applies for compassionate appointment should possess the minimum educational qualification prescribed for the post on the date of submission of such application or on the date of being considered for selection. 19. Relevant portion of the judgment and order dated 4.05.2022 rendered in the case of Pawani Awasthi vs. State of U.P. and Others (Supra) is extracted as under: “When the Court peruses the Government Order dated 04.09.2000, it finds that in Para No. 3 (5), the following provision has been made: Para No. 3 (8) of the same Government Order reads as under: Sub-Para (8) of Para (3) of the aforesaid Government Order permits filing of such application for compassionate appointment within five years from the date of death of the deceased employee. In suitable cases, this time period can also be extended by the State Government. Para 3(1) of the aforesaid Government Order refers to the U.P. Recruitment of Dependents of Government Servants Dying in Harness (Fifth Amendment), Rules, 1999 and makes provision for the basic education schools accordingly. In suitable cases, this time period can also be extended by the State Government. Para 3(1) of the aforesaid Government Order refers to the U.P. Recruitment of Dependents of Government Servants Dying in Harness (Fifth Amendment), Rules, 1999 and makes provision for the basic education schools accordingly. On a conjoint reading of various provisions contained in the Government Order dated 04.09.2000 especially Para 3(5) and 3(8), there can be no rational and intelligible criteria for a condition such as the one mentioned in Para 3(5) for providing compassionate appointment to such dependents of a deceased employee who possess the minimum qualification of intermediate or above for such employment as on the date of death of the deceased employee, meaning thereby, those not being the required qualification on the date of death of the deceased employee would not be considered for compassionate appointment The object of such a provision for providing compassionate appointment is to enable the family of the deceased employee to tied-over the financial crisis as has already been held in a catena of decisions. What if a dependent of the deceased employee acquires the minimum educational qualification prescribed for a particular post subsequent to date of death of the deceased employee and within the period of five years during which he/she can move such application for compassionate appointment. If in such eventuality, he/ she is to be denied consideration for compassionate appointment, it will be highly unreasonable and will defeat to the object sought to be achieved. In fact, in the 1974 Rules, as applicable to government servants, there is no such embargo. The provision for compassionate appointment in basic school has been brought about on similar lines as the 1974 Rules applicable to the government servants as amended in 1999 as already referred hereinabove and as is mentioned in Para 3(1) of the Government Order dated 04.09.2000. Now, when the Court peruses the aforesaid rules of 1974 as amended in 1999, Rule (5) of the aforesaid Rules, 1974 it does not contain any such stipulation that the educational qualification should be fulfilled by such dependent of a deceased employee on the date of death of the deceased. The petitioner completed her intermediate from C.B.S.E. Board prior to 02.05.2019 as the marksheet for the said examination issued by C.B.S.E. bears the said date and she applied for compassionate appointment thereafter on 30.09.2019. The petitioner completed her intermediate from C.B.S.E. Board prior to 02.05.2019 as the marksheet for the said examination issued by C.B.S.E. bears the said date and she applied for compassionate appointment thereafter on 30.09.2019. In fact, the petitioner on the date of death of her mother was less than sixteen years of age, therefore, she could not possibly apply for compassionate appointment. Para 3(8) of the aforesaid G.O. itself permits submission of such applications within five years from the date of death of the deceased employee. One of the objects of such provision is to enable a dependent who is otherwise minor, may be slightly below the age of majority, so that he or she may not be deprived of such compassionate appointment and may not have to undergo the consequential financial deprivation. Therefore, the provision in Para 3(5) does not appear to be reasonable by any standards. Considering the aforesaid, the provision contained in Para no. 3(5) of the aforesaid Government Order is patently unreasonable and hit by Article 14 of the Constitution of India. However, instead of quashing the said provision, the ends of justice would suffice if the words [HINDI IMAGE] are read down to mean that the dependent of the deceased employee who applies for compassionate appointment should possess the minimum educational qualification prescribed for the post in question on the date of submission of such application or on the date of being considered for selection but within the time limit prescribed by Para 3(8) of the said Government Order dated 04.09.2000, otherwise the provision would not stand the test of Article 14 of the Constitution of India. This will protect it from being declared unconstitutional. The Government Order shall now be read, understood and applied accordingly. In view of the above clarification of law on the subject, the impugned orders dated 04.12.2019 and 27.08,2020 are quashed. The claim of the petitioner shall now be reconsidered for compassionate appointment for a clerical post in the light of the aforesaid, subject to availability of vacancy and the decision taken shall be communicated to the petitioner within three months. If there is no vacancy on a clerical post then the claim of the petitioner shall be considered for compassionate appointment against a Class-IV post. Accordingly, the writ petition is allowed in the aforesaid terms.” 20. If there is no vacancy on a clerical post then the claim of the petitioner shall be considered for compassionate appointment against a Class-IV post. Accordingly, the writ petition is allowed in the aforesaid terms.” 20. I have considered the order dated 20.12.2022 passed by the District Basic Education Officer, Bareilly which is impugned in the present writ petition and I find that case of the petitioner for compassionate appointment has been rejected solely on the ground that on the date of death of his father, petitioner was not having Intermediate qualification which is the minimum qualification required for appointment on a Class-III post. The District Basic Education Officer while passing order dated 20.12.2022 has recorded a finding that Clause 3(5) of the Government Order dated 4.08.2000 provides that a candidate seeking compassionate appointment must possess the minimum educational qualification required for appointment on the post on the date of death of the employee and since petitioner on the date of death of his father was not having Intermediate qualification, therefore, he is not eligible for compassionate appointment on the Class-III post. 21. I further find that order dated 20.12.2022 passed by the District Basic Education Officer, Bareilly on its face is unsustainable in the eyes of law as Clause 3(5) of the Government Order dated 4.08.2000 has already been read down by this Court vide judgment and order dated 4.05.2022 rendered in the case of Pawani Awasthi vs. State of U.P. and Others (Supra) and thereby it has been provided by this Court that if the candidate seeking compassionate appointment on a post posses requisite educational qualification on the date of submission of application, then he is eligible for appointment on the said post and in the case of the petitioner, admittedly, petitioner on the date of submission of application for compassionate appointment was having Intermediate qualification. I also find that the District Basic Education Officer while passing order dated 20.12.2022, impugned in the present writ petition, has not considered Clause 3(5) of Government Order dated 4.08.2000 as has been read down by this Court vide its judgment and order dated 04.05.2022 rendered in the case of Pawani Awasthi vs. State of U.P. and Others (Supra). 22. In view of the aforesaid reasons, order dated 20.12.2022 passed by the District Basic Education Officer, Bareilly cannot sustain in the eyes of law. 23. 22. In view of the aforesaid reasons, order dated 20.12.2022 passed by the District Basic Education Officer, Bareilly cannot sustain in the eyes of law. 23. Accordingly, writ petition filed by the petitioner is allowed, order dated 20.12.2022 is quashed and the matter is remanded to the District Basic Education Officer, Bareilly to consider the case of the petitioner for appointment on a Class-III post in accordance with the observations made in this order, within two months from the date of presentation of certified copy of this order.