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2025 DIGILAW 50 (ALL)

Shiv Dutt Sharma v. State of U. P.

2025-01-16

VIVEK KUMAR BIRLA, YOGENDRA KUMAR SRIVASTAVA

body2025
JUDGMENT : Hon'ble Dr Yogendra Kumar Srivastava, J.-Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Rajesh Kumar Mishra, learned counsel for the appellant, Sri Tej Bhanu Pandey, learned Standing Counsel appearing for the State-respondent and Sri Yatindra, learned counsel for respondent Nos. 2 to 5. 2. The present special appeal is directed against the judgment and order dated 7.3.2024 passed in Writ-A No. 6916 of 2019 (Shiv Dutt Sharma v. State of U.P. and others) whereby the writ petition has been disposed of with certain observations and directions. 3. The basic facts of the case which are available on record indicate that the appellant-petitioner was granted appointment on compassionate grounds on the post of Chowkidar in Junior High School, Badagaon, Vikas Kshetra Arnia, District Bulandshahar vide appointment order dated 10.11.1981. 4. On an application dated 6.2.1984, the petitioner was permitted to apply for admission in B.Ed. (Shiksha Shashtri) Course. The petitioner was directed to take admission after seeking sanction of unpaid leave for the purpose, with stipulation that he himself join duties in the same school after expiry of the leave period. 5. In due course of time, the petitioner claims to have been appointed against the post of Assistant Teacher by an order dated 16.8.1986 passed by the District Basic Education Officer, Bulandshahar, in terms of a decision dated 3.7.1986 of the Appointment/Promotion Committee for Teachers of Basic Schools of District Bulandshahar. The appointment order was stated to have been issued on the basis of the qualification shown in the application form of the petitioner. 6. The petitioner continued to serve as Assistant Teacher for about 32 years. However, a few months before the date of his retirement i.e. 31.3.2019, when he was working as Principal at Primary School, Salempur, Pahadgarhi, a notice/order dated 21.12.2018 was issued from the Block Education Officer, Block Arnia stating that the petitioner by concealing the fact relating to his first appointment on compassionate grounds, had obtained the appointment against the post of Assistant Teacher. The petitioner was directed to submit his explanation alongwith evidence in regard to the same failing which it would be presumed that he had nothing to say in the matter, and departmental proceedings would be initiated against him. 7. The petitioner was directed to submit his explanation alongwith evidence in regard to the same failing which it would be presumed that he had nothing to say in the matter, and departmental proceedings would be initiated against him. 7. The petitioner submitted a response to the aforesaid notice on 27.12.2018, wherein no reply was given on the facts mentioned in the notice and the notice was termed as baseless. 8. The petitioner submitted another reply dated 5.1.2019 stating therein that he had applied for appointment on compassionate grounds as per his educational qualifications; however, he had given appointment on the post of Chaprasi/Chowkidar, which was not as per his educational qualifications. It was further submitted that after obtaining permission from the department, the petitioner passed the B.Ed. examination by taking leave without pay and thereafter on the basis of a decision dated 3.7.1986 by the Appointments Committee for Basic Schools, he was given appointment as trained Assistant Teacher, and he took charge on the said post on 16.8.1986. It was stated that he had not concealed any fact from the department and that as he was to attain the age of superannuation on 31.1.2019, and was to retire on 31.3.2019 after completing the academic session, the notice dated 21.12.2018 had no justification. 9. The Basic Education Officer, Bulandshahr upon considering the aforesaid reply, issued an office order dated 8.2.2019 stating therein that the petitioner had been appointed on the post of Chowkidar in the Junior High School, Badagaon, Block Arnia, District Bulandshahar and again he was appointed on compassionate grounds on the post of Assistant Teacher at Primary School, Badauli, Block Arnia and he took charge on 16.8.1986. In view of the aforesaid, the petitioner was directed to furnish certain documents within a week. The aforesaid office order dated 8.2.2019 is being reproduced below : 10. A three-member inquiry committee was constituted by an order dated 25.2.2019 of the District Basic Education Officer, Bulandshahar and the petitioner was granted opportunity to submit his written reply/explanation, by means of a notice/communication dated 18.3.2019, which is being reproduced below : 11. The inquiry committee submitted an inquiry report dated 28.3.2019 before the District Basic Education Officer. A copy of the inquiry report was placed before the writ Court alongwith a counter-affidavit filed on behalf of the State-respondents. The inquiry committee submitted an inquiry report dated 28.3.2019 before the District Basic Education Officer. A copy of the inquiry report was placed before the writ Court alongwith a counter-affidavit filed on behalf of the State-respondents. Certain extracts of the aforesaid inquiry report which have been noticed in the judgment of the learned Single Judge, are being reproduced herein below : (emphasis supplied) 12. On the basis of inquiry report and the available facts, the District Basic Education Officer, Bulandshahar, by an order dated 28.3.2019, which was impugned in the writ petition, cancelled the appointment of the petitioner with immediate effect. Certain portions of the aforesaid order which have been noticed by the learned Single Judge in the judgment under appeal are being extracted below : (emphasis supplied) 13. Aggrieved against the aforesaid order dated 28.3.2019 cancelling his appointment, the petitioner preferred a writ petition which has been dismissed in terms of the judgment under appeal. 14. Learned Single Judge while dismissing the writ petition has recorded his reasoning and conclusion in the following manner : (emphasis supplied) 15. The learned Judge, held that the appointment of the petitioner was against the rules; however, since he had worked for a period of 32 years and was close to his age of superannuation, the writ petition was disposed of without interfering in the order impugned, by providing that the payments made to the petitioner towards salary and other allowances would not be recovered. 16. Contention of the learned counsel appearing for the appellant-petitioner is based primarily on the assertion that the petitioner having worked on the post of Assistant Teacher for a fairly long period, the cancellation of appointment could not have been ordered at this stage particularly when the petitioner was to retire from service upon attaining the age of superannuation. As regards the lack of the requisite training qualification i.e. BTC, it was urged that at that point of time there was shortage of BTC trained teachers, consequently it was a practice in the basic schools to appoint teachers having a qualification of B.Ed. 17. Controverting the aforesaid submissions learned counsel appearing for the State-respondents and the Basic Shiksha Parishad have argued that the petitioner's appointment as Assistant Teacher was illegal inasmuch as he did not possess the prescribed training qualification at the time of his appointment. 17. Controverting the aforesaid submissions learned counsel appearing for the State-respondents and the Basic Shiksha Parishad have argued that the petitioner's appointment as Assistant Teacher was illegal inasmuch as he did not possess the prescribed training qualification at the time of his appointment. It has been pointed out that despite ample opportunity to produce the relevant documentary evidence in regard to his assertion that he had obtained the B.Ed. degree after obtaining permission from the concerned authority and also to support his claim with regard to his appointment having been validly made by following the due selection procedure under the relevant rules, the petitioner could not adduce any material to demonstrate that his appointment had been validly made or that he possessed the requisite qualification for the post. 18. It is also submitted that the petitioner having once been appointed on compassionate grounds on the post of Chowkidar/Chaprasi in a recognized basic school, he could not have obtained appointment again on compassionate grounds on the post of Assistant Teacher. 19. The principal issue, which arises for consideration, is as to whether in the light of the admitted position that the petitioner having not possessed the necessary qualification for the post of Assistant Teacher, the appointment granted to him without following due procedure, could be held to be valid. 20. The other issue, which would arise for consideration, would be as to whether the petitioner, having once availed the benefit of appointment on compassionate grounds on the post of Chaukidar/Chaprasi, could claim appointment on the post of Assistant Teacher again on compassionate grounds. 21. In the case of State of Rajasthan v. Umrao Singh, (1994) 6 SCC 560 , it was held that once a person is granted compassionate appointment and he accepts it, the right to claim further appointment on a higher post under the same scheme is extinguished. Relvant paragraphs of the said judgment are reproduced as under : ''8. Admittedly the respondent's father died in harness while working as Sub-Inspector, CID (Special Branch) on 16.3.1988. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of ''endless compassion''. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case. 9. Since both the sides relied on Naresh Kumar Bali's case [ (1994) 4 SCC 448 : 1994 SCC (L&S) 909 : (1994) 27 ATC 611 : JT (1994) 4 SC 184], we will now refer to the same. We had indicated our mind in that very ruling in paragraph 15 of the said judgment. It reads as under: (SCC p. 452, para 15) ''Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed.'' (emphasis supplied) 22. A similar view was also taken in State of Haryana v. Naresh Kumar Bali, (1994) 4 SCC 448 ; paragraph 15 thereof is as under : ''15. We have set out the factual background in full. The letter of the respondent's mother dated 3.8.1988 categorically states that her son (respondent) was willing to be appointed as a clerk. It was on that the appointment letter, extracted above, came to be issued. Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of a teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one year after his appointment. In fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed. The claim for appointment as Inspector was never made earlier. The High Court without even analysing the circumstances under which the seven persons mentioned in its judgment came to be appointed as Police Officers (ASI or Inspector), straight away has chosen to conclude that there was discrimination. We are not in a position to appreciate this line of reasoning. The positive finding ought to have been given whether the case of the respondent was comparable with those of the seven and then a finding of discrimination ought to have been rendered.'' (emphasis supplied) 23. In Krishna Kumar Pandey v. State of M.P., (2023) SCC OnLine MP 7036, it was held that seeking further or upgraded appointment under the scheme of compassionate appointment leads to 'endless' compassion which is against the spirit of such scheme. Relevant paragraphs of the said judgment are reproduced as under : ''5. Now petitioner's grievance is that since petitioner is Higher Secondary pass, therefore, he should be given appointment on a Class III post like Ward Boy, Patwari, Registration Clerk, etc. in terms of the circular of General Administration Department dated 18.8.2008. 6. Law in this regard is well-settled that there cannot be an endless compassion. Once petitioner accepted appointment on compassionate basis on a Class IV post then, he cannot seek upgradation of his appointment after accepting appointment on a Class IV post and, therefore, in the light of the judgment of Hon'ble Supreme Court in case of State of Rajasthan v. Umrao Singh, (1994) 6 SCC 560 , wherein it is held that once a compassionate appointment was given and accepted, the right to such appointment held stood exhausted. Second consideration for a higher post is not warranted. Therefore, prayer for grant of compassionate appointment on a higher post after accepting compassionate appointment on a Class IV post, cannot be granted to the petitioner.'' (emphasis supplied) 24. Second consideration for a higher post is not warranted. Therefore, prayer for grant of compassionate appointment on a higher post after accepting compassionate appointment on a Class IV post, cannot be granted to the petitioner.'' (emphasis supplied) 24. In a similar set of facts in the case of D. Dinesh Chandra Sharma v. District Inspector of Schools, (2000) SCC OnLine All 861, it has been observed that eligibility for a higher post like Assistant Teacher is separate from the compassionate appointment process and it must adhere to the requisite qualification and selection rules. It was stated thus : ''6. After hearing learned counsel for the petitioner at length and going through the entire documents filed alongwith the affidavit, we are of the view that when the father of the petitioner died petitioner was legally entitled to get an appointment on compassionate ground and he was rightly appointed as an assistant clerk as he was qualified for that post only having qualification of intermediate only. The law on compassionate ground is very clear. It is for the purpose of giving financial assistance to the dependents and the family members of the deceased who was a bread earner and died during the course of his employment. It is apparent from the order passed by the District Inspector of Schools, Meerut, dated 24 April 1998, that the officer concerned considered the relevant rules and law reported in 1996 (2) L.L.N. 225 (vide supra), wherein it has been clearly held that no person is entitled to claim the benefit under dying-in-harness rules more than once. Therefore, it cannot be said that the petitioner was entitled to get benefit of dying-in-harness rules for second time when he became qualified for the post of assistant teacher. We are of the view that the case of the petitioner is fully covered by the decision quoted above and the judgment of the learned Single Judge does not require any interference in special appeal.'' (emphasis supplied) 25. We are of the view that the case of the petitioner is fully covered by the decision quoted above and the judgment of the learned Single Judge does not require any interference in special appeal.'' (emphasis supplied) 25. The question as to whether once compassionate appointment is accepted, can there be a second consideration on a higher post under the same right was considered in the case of Ashwani Kumar Gautam v. State of Uttar Pradesh, (2011) SCC OnLine All 1854, and it was held that accepting a post on compassionate ground, even if it is a lower post, concludes the entitlement to any subsequent claim for a higher post under the same scheme. ''10. The question which arises in this appeal for consideration is whether once compassionate appointment is accepted, can there be a second consideration on a higher post under the same right. 11. It is an admitted fact that the appellant accepted the offer, of appointment against a Class-III post and pursuant thereto, he joined the service on 18th February, 1994. We are, therefore, of the considered view that the appellant, having accepted the compassionate appointment against a Class-III post, his right to be considered under the Act/Regulations is exhausted. The appellant, at the most, was entitled to be considered for giving compassionate appointment. It does not give him indefeasible right to claim appointment against his choicest post. Therefore, we are of the considered view that the appellant cannot now apply or pursue to reconsider him claim under the same provision for giving a higher position keeping in view his qualification. 12. Again in the case of State of M.P. v. Ramesh Kumar Sharma, 1994 Supp (3) SCC 661 : AIR 1994 SC 845 : (1994 AIR SCW 218), the Apex Court has held that a person claiming compassionate appointment has no right to any particular post of his choice. 13. In view of the exposition of law by the Apex Court, it stands concluded that once an incumbent accepts the post offered to him under the Rules or Regulations governing compassionate appointment, the right extended to him under the said Rules or Regulations, stands exhausted and there cannot be any second consideration for the said right.'' (emphasis supplied) 26. The petitioner, having not possessed the requisite training qualification, i.e. BTC for being considered for appointment on the post of Assistant Teacher is not disputed. 27. The petitioner, having not possessed the requisite training qualification, i.e. BTC for being considered for appointment on the post of Assistant Teacher is not disputed. 27. In a similar set of facts, the question with regard to the requirement of possessing basic qualifications for the post of Assistant Teacher was examined in the case of Mohd. Sartaj v. State of Uttar Pradesh, (2006) 2 SCC 315 and, it was observed that in a case where, admittedly, the appellant did not hold the training qualification to be appointed to the post of Assistant Teacher as prescribed under the relevant rules, the orders cancelling the appointment could not be faulted. 28. The position in law with regard to non-entitlement of appointment on compassionate grounds more than once, is fairly well-settled. The petitioner was, therefore, not entitled to claim the benefit of appointment on the post of Assistant Teacher on compassionate grounds, having availed the said benefit earlier. The legal position regarding the other point that once the basic qualifications for the post in question, are not fulfilled, no claim can be made for appointment, also needs no further elaboration, as it is well-settled that in case where the basic qualifications are lacking, the person concerned cannot claim a right for appointment to the post in question. 29. The fact with regard to the petitioner, having been granted ample opportunity to produce material to demonstrate that his appointment on the post of Assistant Teacher had been made after following the due procedure, is not disputed. 30. Learned Single Judge has taken due note of the fact that despite opportunity, the petitioner could not adduce any evidence to demonstrate that his appointment on the post of Assistant Teacher had been made after following the relevant statutory rules. It has also been taken note of that the petitioner did not possess the essential training qualification for being appointed on the said post, a fact which, at no stage, was disputed by the petitioner. 31. It has also been taken note of that the petitioner did not possess the essential training qualification for being appointed on the said post, a fact which, at no stage, was disputed by the petitioner. 31. Having regard to the aforesaid discussion, we are of the view that the order dated 28.3.2019, cancelling the appointment of the petitioner as Assistant Teacher cannot be faulted on both counts, i.e, (i) the petitioner, having admittedly not possessed the requisite training qualification as prescribed under the relevant rules for being considered for appointment on the post of Assistant Teacher; and (ii) the petitioner, having earlier been appointed on compassionate grounds on the post of Chaukidar/Chaprasi, the said right to claim appointment on compassionate ground stood exhausted and it would not open to the petitioner to seek appointment to the post of Assistant Teacher again on compassionate grounds. 32. The fact that the petitioner had worked for a fairly long period, has been duly taken note of by the learned Single Judge and accordingly while disposing of the writ petition without interfering in the order impugned, it has been provided that the payments made to the petitioner towards salary and other allowances would not be recovered. 33. The judgment of the learned Single Judge, is based on an appreciation of the facts and the material on record and, after recording cogent reasons. We are not persuaded to take a different view in the matter. 34. The appeal is devoid of merit and is, accordingly, dismissed.