Manoj Misra, J. - (1.) THE facts giving rise to this petition are that the petitioner's father worked as a Class IV employee in Diggvijay Nath Inter College, Chowk Bazar, District Mahrajganj, which is a duly recognized and Government aided Institution, governed by the provisions of U.P. Intermediate Education Act, 1921 and the regulations framed thereunder. Petitioner's father died in harness on 18.1.2006. THE petitioner, who held requisite qualification for being appointed as an Assistant Teacher, moved an application before the Principal and the Committee of Management of the Institution, as also the District Inspector of Schools, Mahrajganj thereby seeking appointment on compassionate ground. THE Principal of the college forwarded the necessary papers to the District Inspector of Schools, Mahrajganj. However, when no action was taken, the petitioner was constrained to file a Writ Petition No. 60908 of 2006 before this Court, which was disposed of by order dated 15.12.2006 thereby directing the District Inspector of Schools to look into the matter and to take necessary decision within a specified period. In pursuance of the direction given by this Court, the District Inspector of Schools vide his order dated 23.12.2006 found the petitioner to be entitled to appointment on compassionate ground and thereby directed the management of the college to forward the proposal for appointment of the petitioner on a post suitable to his qualification so that appointment could be made after recommendation of the selection committee. THEreafter, the matter pertaining to the appointment of the petitioner on compassionate ground was placed before the selection committee, which recommended that the petitioner should be appointed as Assistant Clerk, which post was lying vacant in the Institution. THE District Inspector of Schools vide his letter dated 12.2.2007 communicated the decision of the selection committee to the Manager/Principal of the college and directed the management to complete the formalities relating to appointment. THE direction as contained in the letter dated 12.2.2007 is being quoted hereinunder: JUDGEMENT_286_ADJ1_2012Image1.jpg
(2.) THE aforesaid direction of the District Inspector of Schools was not complied with. Neither any letter of appointment was issued nor the petitioner was permitted to join his duties. Accordingly, on 8.3.2007, the petitioner submitted a representation to the District Inspector of Schools, Maharajganj, for suitable direction to the Manager/Principal of the institution to permit him to join the duty as an Assistant Clerk of the Institution. In the meantime, the Committee of Management passed a resolution on 17.12.2006 thereby proposing to appoint the petitioner on Class IV post instead on the post of Assistant Clerk, which is a class III post. However, the District Inspector of Schools, Maharajganj by his order dated 21.3.2007 rejected the resolution of the management seeking to appoint the petitioner on a Class IV post and directed the Manager to appoint the petitioner, as per the recommendation of the Selection Committee, on the post of Assistant Clerk. Despite specific direction by the District Inspector of Schools, the Manager did not appoint the petitioner. THEreafter, the District Inspector of Schools instead of taking action against a recalcitrant management repeated its directions vide letters dated 5.5.2007 and 22.5.2007, but to no effect. THE stubborn attitude of the management was to such an extent that vide letter dated 19.6.2007 it informed the District Inspector of Schools that they held their own enquiry, and took interview of the petitioner, and found him suitable for appointment on a Class IV post, therefore, their proposal to appoint the petitioner on Class IV post be approved. Aggrieved by the letter dated 19.6.2007, the petitioner has filed the present petition claiming, inter alia, that there being a vacant post of Assistant Clerk in the Institution and that the Selection Committee having found him fit and eligible for appointment to that post, the management of the institution had no jurisdiction to over rule the Selection Committee and propose for his appointment on a lower Class IV post. THE petitioner prayed for quashing of the letter dated 19.6.2007 and for direction to the respondent- Committee to appoint the petitioner on a Class III post in the Institution. On 20.7.2007, the petition was entertained and the Court passed an order, which reads as under: "Issue notice to respondent No. 3. Steps be taken within a week. Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1 and 2. Learned counsel for the petitioner contends that the petitioner was issued appointment on the post of Clerk on compassionate ground vide order of the District Inspector of Schools dated 12.2.2007. By a subsequent order dated 22.5.2007, the Committee of Management was directed by the District Inspector of Schools to appoint the petitioner as a class III employee. But the Committee of Management did not appoint the petitioner on the post of clerk in the institution in question and sent the impugned letter dated 19.6.2007 to the District Inspector of Schools to the effect that the Committee of Management did not found the petitioner fit for appointment as Clerk and recommended the petitioner for appointment on class IV post. Learned counsel for the petitioner further contends that petitioner is qualified for appointment on class III post and there is no power with the Committee of Management to judge the suitability of the petitioner and to refuse the petitioner from joining. Let respondents file counter-affidavit within six weeks. Rejoinder-affidavit may by filed within two weeks thereafter. In the meantime, the impugned order dated 19.6.2007 (Annexure- 9 to the writ petition) shall remain stayed." A counter-affidavit duly sworn by Sri Ram Kripal Prasad, District Inspector of Schools, Maharajganj was filed. In the counter-affidavit, the District Inspector of Schools, Maharajganj, has supported the case of the petitioner and has accepted that the resolution of the Committee of Management thereby proposing to appoint the petitioner on Class IV post was illegal. The committee of Management inspite of having put in appearance through Sri. P.K. Giri, Advocate did not file any counter-affidavit. In fact, this Court vide order dated 27.8.2009 took a strong exception to the not filing of counter-affidavit by the Committee of Management. The order dated 27.8.2009 is being quoted herein under : "Heard learned counsel for the petitioner and learned standing counsel. The grievance of the petitioner is that even though the district level committee has recommended his name for being appointed on a class- Ill post under dying-in-harness Rules and approved by the District Inspector of Schools, the committee of management-respondent No. 3 has neither issued any formal appointment letter nor is permitting the petitioner to join on class-Ill post. It has further been submitted that after the appointment of the petitioner on the post of class- Ill post was duly approved, the committee of management informed the District Inspector of Schools vide letter dated 19.6.2007 that the petitioner is not fit to be appointed on a class- HI post and may be given appointment on class IV post. It is contended that under Chapter III of Regulations 103 to 107, it is the District Level Committee which is empowered and the committee of management of the institution is vested with no power. Although the committee of management has put in appearance through Sri P.K. Giri, Advocate on 25.9.2007 but almost two years have passed no counter-affidavit has been field. The case set up by the State-respondent in the counter-affidavit filed by them is also very strange. If the order passed by the District Inspector of Schools appointing the petitioner on class-III post has not been complied, he was not powerless to take action against the committee of management. Since the District Inspector of Schools has failed to discharge his duties the petitioner has rushed to this Court by filing the instant writ petition. After the aforesaid order was passed, Sri P.K. Giri appeared and stated that the matter may be taken up tomorrow. On being confronted with the observation that why the counter- affidavit has not been filed for two years, he has stated that though the case was listed on a number of times but the matter was never taken up. He further states that there is an election in the Advocate Association and he is contesting the same and therefore, the matter may be taken up tomorrow. Put up tomorrow i.e. 28.8.2009 for further argument." (Hon'ble Krishna Murari, J.) Later, Hon'ble Mr. Justice Krishna Murari had released the matter vide his order dated 26.8.2011, which is being quoted herein under : "The matter was heard by me on 27.8.2009 and 28.8.2009 when I was sitting singly. Now, the roster has changed and I am sitting in Division Bench, hence, the case is released and be listed before appropriate Court having jurisdiction."
(3.) WHEN this case was taken up on 29.11.2011, even in the revised call of the list, no one appeared to oppose the petition. In the aforesaid background I have no option but to accept the facts stated in the writ petition as correct. However, before considering the relief that could be granted to the petitioner, it would be prudent to examine the provisions that govern the law relating to compassionate appointments in the institutions that are covered by the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder. The relevant provisions are contained in Rules 102 to 107 of Chapter III of the Regulation framed under the U.P. Intermediate Education Act. The same are quoted herein under. JUDGEMENT_286_ADJ1_2012Image2.jpg JUDGEMENT_286_ADJ1_2012Image3.jpg JUDGEMENT_286_ADJ1_2012Image4.jpg A perusal of Regulation 103 discloses that the appointment on compassionate ground is to be made on a post suitable to the qualification of the candidate. The Regulation 104 provides for the role of the management. According to Regulation 104, the Management within seven days from the date of the death of the employee, has to submit a report to the District Inspector of Schools giving such details of the deceased - employee and his family members as are noted in the regulation. Upon receipt of this report, the District Inspector of Schools has to enter the details in a register. Regulation 105 provides for an application by the member of the family of the deceased-employee thereby seeking appointment. This application has to be made before the District Inspector of Schools. Thereafter, the application with all the relevant papers is to be placed before a District Level Committee, which consists of the District Inspector of Schools, the Accountant in the office of the District Inspector of Schools and the District Basic Education Officer of the concerned district. Upon recommendation of this Committee, the District Inspector of Schools has to forward the application for appointment to the Management concerned for issuing necessary appointment order in accordance with Regulations 106 and 107. Regulation 106 provides that the dependent of the deceased-employee would be given appointment in the same Institution where the deceased-employee was working and in case there is no vacant post in the said institution then the appointment is to be provided in any other recognized/ aided institution of the District. The Proviso to Regulation 106 states that where there is no vacant post in the entire District then a supernumerary post in Class IV shall be created for the candidate. Regulation 107 provides for the time limit within which the exercise of issuing the appointment order is to be carried out. ;