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Uttarakhand High Court · body

2023 DIGILAW 535 (UTT)

Pawan Kumar v. Director School Education

2023-09-14

SHARAD KUMAR SHARMA

body2023
JUDGMENT : The petitioner, in this writ petition, has agitated his grievance as against the impugned order dated 17.08.2023, as it was passed by the Chief Education Officer, whereby the petitioner’s claim for the grant of compassionate appointment has been rejected. 2. Brief facts, which are necessary to be considered and which may have a bearing in the case at hand, are that the late father of the petitioner, who was then working with the institution of respondent No. 3 herein, which was an institution which was under grant-in-aid. In grant-in-aid institutions, the power of appointment of Class-IV employees has been vested with the Principal. 3. The late father of the petitioner, who was initially appointed with the respondent, had voluntarily filed an application before the competent authority i.e., the Principal, on 19.12.2018, seeking his voluntary retirement on the ground of his ailment. The said application thus submitted by the late father of the petitioner was processed by the institution of which the respondent no. 4, was the appointing authority of the late father of the petitioner and the Principal, CNI Girls Inter College, Dehradun, who vide its communication No. 170 of 2018-19 dated 27.03.2019, had processed the same, and after accepting it, had sent it to the office of the Chief Education Officer, for its formal approval, which was granted on 28.08.2019, by an Order No. 6/40-4/465. 4. As soon as the approval was granted to the application for the voluntary retirement submitted by the late father of the petitioner on 19.12.2018, which was ultimately approved by the Principal on 27.03.2019. Prior to its formal approval by the Chief Education Officer, petitioner’s father met with his sad demise on 13.09.2019. It was thereafter that the mother of the petitioner had raised a claim for the grant of compassionate appointment on the ground that on the date of death i.e. 13.09.2019, petitioner’s father’s lien to continue into the services of respondent Nos. 3 & 4 existed. 5. It was thereafter that the mother of the petitioner had raised a claim for the grant of compassionate appointment on the ground that on the date of death i.e. 13.09.2019, petitioner’s father’s lien to continue into the services of respondent Nos. 3 & 4 existed. 5. Apart from it, it has been argued by the learned counsel for the petitioner that the family of the late father of the petitioner i.e. the petitioner himself too could not get the knowledge of the order of approval granted by the District Education Officer for voluntary retirement vide his order dated 28.08.2019, as such, it has been interpreted by the petitioner that in fact, the voluntary retirement would be given effect to from 28.08.2019, and thus he would be entitled to be considered for the grant of compassionate appointment, since the formal acceptance of voluntary retirement would take its effect from the date of approval granted by the Chief Education Officer. 6. He further submits that in the light of the Government Order No. 1844/Karmic2/2002, as per clause (2), which contemplates with regard to governing the principles under Rules 56(Ga) of the Financial Handbook, Volume II, Part 2 to 4, if an application for voluntary retirement has been submitted, that has to be accepted by the “Appointing Authority within three months”, 7. Herein, the issue should not be confused by the petitioner that his appointing authority under law, and admittedly is the principal respondent No. 4 and not the Chief Education Officer, who has ultimately granted an approval to the decision of the Committee of Management, accepting the proposal of voluntary retirement, the proposal offered by the late father of the petitioner. Hence, in fact, the application for voluntary retirement, as submitted by the late father of the petitioner, would come into effect from the date on which the Committee of Management had approved the same and not from the date it was sent for its approval to the Chief Education Officer or formal grant of approval by his office, and it will not be prior to it as has been argued by the learned counsel for the petitioner on the basis of the communication made by the Committee of Management of CNI Girls Inter College, Dehradun, to the Chief Education Officer. 8. 8. This Court is of the view, that once the proposal offered of voluntary retirement has already been accepted by the Appointing Authority, it will fall to be well within the ambit of Government Order, the reference of which has been made by the learned counsel for the petitioner. Its formal approval by the Chief Education Officer may not be construed as to be the basis of acceptance of the proposal for voluntary retirement extended by late father of the petitioner. 9. He contends that the very acceptance of the offer extended by the late father of the petitioner for voluntary retirement is fraudulent because it didn’t bear the signature or the thumb impression of the late father of the petitioner, which is not acceptable by this Court for the reason being, that the impression of thumb or a signature, whether it was fraudulent or not, would be only an aspect which may having a bearing when the said process is contemplated under the Rules for the purposes of valid acceptance of the offer extended by the late father of the petitioner for voluntary retirement. 10. The provisions of compulsory retirement are regulated by para 56(a) of Chapter IX of the Financial Handbook, which reads as under:- “COMPULSORY RETIREMENT “156 (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a Government servant, whose date of birth is the first day of a month, shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years: Provided further that a Government servant, who has attained the age of fifty-eight years on or before the first day of the November, 2001 and is on extension in service, shall retire from service on expiry of his extended period of service. (a-1) No Government servant shall be granted extension in service beyond the age of retirement of sixty years: Provided that a Government servant dealing with budget work or working as a full time member of a committee which is to be wound up within a short period of time may be granted, by the Government, extension of service for a period not exceeding three months in public interest: Provided further that a Government servant holding highly specialised technical job whose replacement has not been possible to be arranged before his retirement even after efforts made in this regard, may be granted extension of service up to the age of sixty-two years, if such extension is unavoidable in public interest and the grounds for such extension are recorded in writing: Note Each case for extension of service under this clause shall be put up for orders to the Chief Minister through the Chief Secretary. (a-2) Notwithstanding any thing to the contrary contained in clause (a) or clause (a-1) of this rule, a Government servant may, if considered necessary, in public interest, so to do, be granted extension of service up to the age of sixty- two years with the prior approval of the Cabinet: Provided that in the cases of extension in service under clauses (a-1) and (a- 2) of this rule, Government shall have the right to terminate the extension of service before expiry of such extension by giving a notice in writing of not less than three months in the case of a permanent or, of one month in the case of a temporary Government servant, or pay and allowances in lieu of such notice." 11. In the principal provision governing the field of compulsory retirement it is not a process provided, therein, and this realization of the order passed by the Chief Education Officer, being fraudulent would be at this belated stage, cannot be a theory which could be accepted by this Court, and that too, particularly, in the light of the fact which it is quite distinguishable in this case when the appointing authority has already approved the acceptance of the voluntary retirement offer extended by the late father of the petitioner. 12. 12. Since the lien into the services of the late father of the petitioner stood ceased as soon as the offer of voluntary retirement as offered 12.12.2018, was accepted by the employer i.e., the Committee of Management, by passing a resolution to the said effect on 31.03.2019, in that eventuality, the reasons which have been assigned in the impugned order for declining to grant harness appointment to the petitioner on the basis of denial made by the Chief Education Officer cannot be faulted. 13. Thus, the writ petition lacks merit and the same is, accordingly, dismissed.