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2024 DIGILAW 426 (ALL)

Neetu Sharma v. State Of U. P.

2024-02-08

MANJIVE SHUKLA

body2024
JUDGMENT : (Manjive Shukla, J.) : 1. Heard Mr. Kamal Kumar Kesherwani, learned counsel appearing for the petitioner, learned Standing Counsel appearing for the Respondents No. 1 to 3 and Mr. Rama Nand Pandey, learned counsel appearing for the Respondents No. 4 & 5. 2. Petitioner through this writ petition has assailed the order dated 08.09.2023 passed by the District Basic Education Officer, Jhansi whereby her claim for compassionate appointment has been rejected. 3. Facts of the case, in brief, are that mother-in-law of the petitioner while working on the post of Assistant Teacher in a Primary School at Jhansi died in harness on 28.12.2017. Petitioner’s husband Mr. Prashant Sharma preferred an application on 12.03.2018 for his compassionate appointment on the post of Clerk in place of his mother. Application filed by Mr. Prashant Sharma for compassionate appointment on the post of Clerk remained pending with the respondents and during pendency of the application respondents required him to opt for appointment on a Class-IV post as vacant Class-III post was not available but he did not opt for appointment on Class-IV post. 4. Since the application for compassionate appointment on the post of Clerk submitted by the petitioner’s husband remained pending with the respondents, he filed Writ-A No. 19207 of 2022 (Prashant Sharma Vs. State of U.P. & Ors) which was finally disposed of by this Court vide order dated 23.11.2022 whereby direction was issued to the Secretary, U.P. Basic Education Board, Prayagraj to decide his application dated 12.03.2018. The Secretary, U.P. Basic Education Board, Prayagraj did not take any decision pursuant to order dated 23.11.2022 passed by this Court in Writ-A No. 19207 of 2022 and in the meantime petitioner’s husband Mr. Prashant Sharma died on 11.04.2023. After the death of her husband, petitioner filed an application on 23.05.2023 for her compassionate appointment in lieu of the death of her mother-in-law. Since the application filed by the petitioner was not decided, she filed Writ-A No. 10348 of 2023 which was disposed of by this Court vide order dated 14.07.2023 whereby direction was issued to the District Basic Education Officer, Jhansi to consider and decide petitioner’s application for compassionate appointment within a period of one month. 5. Since the application filed by the petitioner was not decided, she filed Writ-A No. 10348 of 2023 which was disposed of by this Court vide order dated 14.07.2023 whereby direction was issued to the District Basic Education Officer, Jhansi to consider and decide petitioner’s application for compassionate appointment within a period of one month. 5. The District Basic Education Officer, in compliance of the order dated 14.07.2023 passed by this Court in Writ-A No. 10348 of 2023 has passed order on 08.09.2023, whereby application of the petitioner for her compassionate appointment has been rejected on the ground that petitioner’s husband on the death of his mother filed application for his compassionate appointment on the post of Clerk and in view of the provisions made in Government order dated 04.09.2000, the said application was entered in the list of candidates seeking appointment on clerical post and since during five years due to non-availability of vacancy in the clerical cadre he could not be given appointment on clerical post, his application has been de-listed. In the order dated 08.09.2023 it has further been stated that during period of five years from the date of application of the petitioner’s husband he was offered to opt for his compassionate appointment on a Class-IV post but he did not submit his option and continuously insisted for his appointment on a clerical post, therefore in view of the provisions made in the Government order dated 04.09.2000, his claim automatically came to an end after expiry of the period of five years from the date of his application and further since one application filed by petitioner’s husband stood rejected and there is no provision for second application for compassionate appointment, therefore petitioner pursuant to her application cannot be provided compassionate appointment and accordingly her application stands rejected. 6. Learned counsel appearing for the petitioner has submitted that mother of the petitioner’s husband died on 28.12.2017 and thereafter he filed application for compassionate appointment on 12.03.2018 but the said application was never decided by the respondents in spite of the categorical order passed by this Court on 23.11.2022 in Writ-A No. 19207 of 2022 and during the pendency of the said application petitioner’s husband died therefore, petitioner’s application for compassionate appointment should have been treated to be in continuity with the application filed by her husband and accordingly could not have been rejected. It has further been submitted that the provisions of the Government order dated 04.09.2000 only provide that application for compassionate appointment on the clerical post shall be entered in a list and appointment on the clerical posts will be provided on the criteria of first come first get against the available vacancies and after five years the application shall be de-listed but in no way the provisions of the Government order dated 04.09.2000 provide that the claim for compassionate appointment of a candidate shall automatically stand rejected on completion of period of five years, therefore the stand taken by the District Basic Education Officer, Jhansi in his order dated 08.09.2023 is absolutely misconceived. 7. Learned counsel appearing for the petitioner has vehemently argued that the respondents deliberately did not comply the order dated 23.11.2022 passed by this Court in Writ-A No. 19207 of 2022 and in the meantime petitioner’s husband died, therefore it is apparent that the application filed by the petitioner’s husband for his compassionate appointment has not been decided till date as such the application of the petitioner for her compassionate appointment should have been treated to be in continuity with the application of her husband and could not have been rejected by the District Basic Education Officer, Jhansi but in patent disregard to the order passed by this Court, petitioner’s application for compassionate appointment has been rejected vide order dated 08.09.2023 on absolutely misconceived ground that the application filed by the petitioner’s husband automatically stood rejected on completion of period of five years from the date of its filing. 8. Learned counsel appearing for the petitioner has also argued that petitioner’s family is still under acute financial stress as after the death of her mother-in-law, her father-in-law and husband both have died and there is no one in the family who can provide financial support, therefore it is apparent that financial stress is continuing as on date accordingly, the application filed by the petitioner for her compassionate appointment should have been considered sympathetically but the District Basic Education Officer, Jhansi without considering the entire facts and circumstances of the case has straight away rejected her case vide order date 08.09.2023. 9. 9. Learned counsel appearing for the petitioner has thus concluded his arguments by submitting that the order dated 08.09.2023 passed by the District Basic Education Officer, Jhansi cannot sustain in the eyes of law and is liable to be quashed by this Court. 10. Per contra, Mr. Rama Nand Pandey, learned counsel appearing for the Respondents No. 4 & 5 has argued that compassionate appointment to the dependent of a deceased teacher is provided in terms of the provisions made in the Government order dated 04.09.2000, wherein under Clause 5 it has been provided that where a candidate seeks compassionate appointment on a clerical post, his application shall be registered in the list of candidates seeking compassionate appointment on clerical post and appointment shall be given on the criteria of first come first get against the available vacancies and if during the period of five years, candidate is not given appointment due to non-availability of vacancy in the clerical cadre, his name shall be deleted from the said list with a further rider that if during the said five years if any candidate submits application for compassionate appointment on a Class-IV post then his application shall be considered for appointment on a Class-IV post. The mother-in-law of the petitioner died on 28.12.2017 and petitioner’s husband applied for his compassionate appointment on a clerical post which was registered in the list of the candidates but due to non-availability of vacancy in the clerical cadre he could not be given compassionate appointment on the clerical post and the time period of five years completed, therefore his application stood automatically rejected. During the said period of five years, petitioner’s husband was offered to opt for compassionate appointment on a Class-IV post but he did not opt and never applied for compassionate appointment on a Class-IV post and therefore, his claim automatically stood rejected on completion of the period of five years. Once the application for compassionate appointment filed by the petitioner’s husband automatically stood rejected on completion of the period of five years, there is no provision for second application for compassionate appointment by any other family member as such petitioner’s application for compassionate appointment has been rejected vide order dated 08.09.2023. 11. Mr. Once the application for compassionate appointment filed by the petitioner’s husband automatically stood rejected on completion of the period of five years, there is no provision for second application for compassionate appointment by any other family member as such petitioner’s application for compassionate appointment has been rejected vide order dated 08.09.2023. 11. Mr. Rama Nand Pandey, learned counsel appearing for the Respondents No. 4 & 5 has thus concluded his arguments by submitting that the order dated 08.09.2023 passed by the District Basic Education Officer, Jhansi does not suffer from any infirmity and writ petition filed by the petitioner is liable to be dismissed by this Court. 12. I have considered the rival submissions advanced by the learned counsels appearing for the parties and I find that mother-in-law of the petitioner died on 28.12.2017 and thereafter petitioner’s husband filed application for his compassionate appointment on a clerical post. Since the vacant clerical post was not available, his application was registered in the list of candidates seeking compassionate appointment on clerical post. Petitioner’s husband was also offered to opt for available vacant Class-IV post vide letter dated 19.07.2018 but he did not opt for appointment on Class-IV post and continued to maintain his claim for compassionate appointment on a clerical post. 13. Petitioner’s husband was also offered to opt for available vacant Class-IV post vide letter dated 19.07.2018 but he did not opt for appointment on Class-IV post and continued to maintain his claim for compassionate appointment on a clerical post. 13. For arriving at conclusion, it is necessary to have a brief look of the provisions made in the Clause (5) of the Government order dated 04.09.2000, which is extracted as under :- ^^¼5½ ,sls e`rd vkfJr tks] lEcfU/kr deZpkjh dh e`R;q ds fnukad dks e`rd vkfJr ds :i esa lsok;kstu ds fy;s U;wure 'kSf{kd vgZrk b.VjehfM,V vFkok mlls vf/kd j[krs gksa vkSj csfld f'k{kk ifj"kn ds v/khu v/khuLFk Lrjksa ij fyfid ds LkEoxZ ds lcls uhps ds in ij lsok;kstu ds fy;s vU;Fkk vgZ gksa] dks lEcfU/kr tuin ds fyfid ds fyfid ds fjDr in ds lkis{; laoxZ esa lcls uhps ds in ij lsok;kstu iznku fd;k tk;sxkA tuin esa fjDr fyfid ds in ij e`rd vkfJr ds :i esa lsok;kstu ds fy, izkIr leLr vkosnu i=ksa ds izFke vkxr izFke iznRr ds vk/kkj ij iathd`r fd;k tk;sxk rFkk foHkkx ds fjDr gksus okys inksa ds lkis{; izFke vkxr izFke iznRr ds fu;e dk ikyu lqfuf'pr djrs gq, lsok;kstu iznku fd;k tk;sxkA fu;qfDr izkf/kdkjh rnuqlkj e`rd vkfJr vH;fFkZ;ksa dh lwph dks izR;sd ekg ds izkjEHk esa vius dk;kZy; ds lwpuk iVy ij iznf'kZr djsaxs vkSj izR;sd ekg gksus okyh fjfDr ds lkis{; lsok;ksftr e`rd vkfJr dk uke iznf'kZr djrs gq, mDr lwph dk rnuqlkj la'kksf/kr dj vxys ekg ds izkjEHk esa v|kof/kd la'kksf/kr lwph dk;kZy; esa lwpuk iVy ij iznf'kZr djrs jgasxsA r`rh; Js.kh ds fjDr in ds lkis{; e`rd vkfJr lsok;kstu ds fy, izR;sd vH;FkhZ ds uke fu;qfDr izkf/kdkjh ds dk;kZy; esa iathd`r gksus dh frfFk ls ikap o"kZ dh vof/k iwjh gksus ds ekg ds vafre dk;Z fnol rd ;fn izFke vkxr izFke iznRr ds fl)kUr ds vuqlkj lsok;kstu gsrq Js.kh rhu dh fjfDr miyC/k ugha gksrh rks lEcfU/kr vH;FkhZ dk uke iathd`r vH;fFkZ;ksa dh lwph ls fudky fn;k tk;sxk fdUrq bl vof/k ls iwoZ ;fn Js.kh pkj ds fjDr in@vf/kla[; in ds lkis{; lsok;kstu gsrq viuk la'kksf/kr vkosnu i= fu;qfDr izkf/kdkjh ds dk;kZy; esa iathd`r djk ysa rks ml ij fopkj fd;k tk;sxkA e`rd vkfJr ifjokj dh dfBu ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, ;fn dksbZ vH;FkhZ] fyfid laoxZ ds in dh fjfDr ds lkis{; lsok;kstu esa] lEHkfor foyEc dks] n`f"Vxr j[krs gq, ;fn rRdky lsok;kstu dh vko';drk vuqHko djrk gks rks fu;qfDr izkf/kdkjh ds fy, ,sls vH;fFkZ;ksa ds lEcU/k esa prqFkZ Js.kh esa fjDr vf/kla[; inkas ds lkis{; e`rd vkfJr ds iqujhf{kr vkosnu i= izLrqr djus ij lsok;kstu djus dk vf/kdkj gksxkA ;gk¡ ;g Li"V fd;k tkrk gS fd ,d ckj e`rd vkfJr ds :i esa iznRr lsok;kstu dh lqfo/kk ij iquZfopkj dk dksbZ volj ugha jgsxkA** 14. From perusal of Clause (5) of the Government order dated 04.09.2000 it becomes crystal clear that if a candidate is claiming for compassionate appointment on a clerical post and the vacancy is not available then his application shall be registered in the list of candidates seeking compassionate appointment on clerical post and from that list appointments shall be offered against available vacant clerical posts on the criteria of first come first get and further if during the period of five years from the date of such registration candidate could not get appointment on a clerical post then his application shall be removed from the said list. In Clause (5) of the Government order dated 04.09.2000 it has further been provided that during the period of five years it shall be open for the candidate to opt for his appointment on a Class-IV post and if the said option is submitted, then his claim shall be considered for appointment against a Class-IV post. 15. This court finds that the application for compassionate appointment submitted by the petitioner’s husband was received in the office of the District Basic Education Officer, Jhansi on 20.03.2018 and it was registered in the list of candidates seeking compassionate appointment on clerical post but petitioner’s husband could not be offered compassionate appointment on a clerical post for want of vacancy and the period of five years completed, therefore as per provisions made in Government Order dated 04.09.2000, his name was removed from the list. This court further finds that during the period of five years petitioner's husband was offered to opt for compassionate appointment on a Class-IV post but he did not submit any such option and he continued to assert his claim for appointment on a clerical post. 16. Petitioner’s husband without disclosing provisions made in Clause (5) of the Government order dated 04.09.2000 filed Writ-A No. 19207 of 2022 and this Court vide order dated 23.11.2022 directed the Secretary, U.P. Basic Education Board, Prayagraj to consider and decide his application dated 12.03.2018 and the said order was not complied with, but the fact remains that the petitioner’s husband was claiming compassionate appointment on a clerical post and due to non-availability of vacancy he could not be given compassionate appointment and on completion of the period of five years his name was removed from the list of candidates seeking compassionate appointment on clerical post. The husband of the petitioner died on 11.04.2023 and thereafter petitioner filed application for her compassionate appointment on 23.05.2023 and the said application has been rejected by the District Basic Education Officer, Jhansi vide order dated 08.09.2023 on the ground that petitioner’s husband claimed his appointment on a clerical post and his application was registered in the list of candidates seeking compassionate appointment on clerical post and since during five years period he could not given appointment due to non-availability of vacancy of clerical post, his application automatically stood rejected and his name was removed from the list of candidates seeking compassionate appointment on clerical post. In the order dated 08.09.2023 the District Basic Education Officer, Jhansi has also pointed out that petitioner’s husband was offered to opt for compassionate appointment on a Class-IV post but he did not submit such option and continued to claim for compassionate appointment on clerical post which stood rejected on completion of period of five years. 17. Provisions made in the Government order dated 04.09.2000 are unambiguous and there is provision that if a candidate wants compassionate appointment on a Class-IV post, then his case can be considered for the said appointment but if he is insisting for appointment on a clerical post and vacancy is not available then his application shall be registered in the list of candidates seeking compassionate appointment on clerical post and the said claim will continue to exist for a period of five years and thereafter his name shall be removed from the list meaning thereby that his application for compassionate appointment on Class-III post shall automatically stand rejected. It is also worth consideration of this Court that the compassionate appointment cannot be claimed as a matter of right and once petitioner’s husband was offered to opt for compassionate appointment on a Class-IV post and he continued to insist for his claim for appointment on a clerical post which came to end on expiry of the period of five years, the second application filed by the petitioner for her compassionate appointment after the death of her husband is not maintainable as there is no provision under the Government order dated 04.09.2000 for successive applications for compassionate appointment by more than one member of the family of the deceased teacher. 18. 18. By now it is well setted proposition of law propounded through catena of judgments of Hon’ble Supreme Court that in the matters of compassionate appointment, one cannot insist for his appointment on a particular post and therefore once petitioner’s husband was offered appointment on a Class-IV post and he did not opt for that appointment, his claim for compassionate appointment ended and further in terms of Government order dated 04.09.2000 his claim for compassionate appointment on a clerical post ended on completion of period of five years from the date of registration of his application, therefore the second application filed by the petitioner for her compassionate appointment was not at all maintainable, as such the District Basic Education Officer, Jhansi while rejecting the petitioner’s application vide order dated 08.09.2023 has not committed any illegality. 19. In view of the aforesaid reasons, this writ petition lacks merit and is accordingly dismissed.