Syed Rafat Alam, J. - (1.) THIS is an intra -court appeal under the Rules of the Court arising from the judgment and order dated 16th September, 2010 of the learned Single Judge dismissing the appellant's Writ Petition No. 42106 of 2008. The short facts giving rise to this appeal is that the father of the appellant was a Class -III employee of S.K. Inter College, Maharara in the district of Hathras/Mahamaya Nagar (hereinafter referred to as the 'institution'), which is a recognized institution governed by the provisions of the U.P. Intermediate Education Act, 1921 (for short 'the Act') and the regulations framed thereunder. Appellant's father died in harness on 01.05.1993. He, therefore, made an application for giving compassionate appointment. He was, however, offered appointment against Class -IV post on 27.01.1994, but he did not join and made a request to appoint him on a post commensurate to his qualification. Thereafter, he was offered appointment against a Class -III post, which he claims to have joined under protest and the same was also approved by the District Inspector of Schools on 18.02.1994. The appellant, however, started making request to appoint him as Assistant Teacher keeping in view the fact that he possessed the requisite qualification for the said post. He approached this Court by filing Civil Misc. Writ Petition No. 54385 of 2003, which was disposed of vide order dated 11.12.2003 with the direction to the District Inspector of Schools, Hathras to consider the case of the petitioner -appellant and decide the same in accordance with law within a period of two months.
(2.) THE District Inspector of Schools, Hathras, pursuant to order dated 11.12.2003, considered the case of the petitioner -appellant and vide order dated 13.01.2004 decided the representation holding that he was entitled for being appointed as Assistant Teacher. Further case set up by the appellant is that he was given appointment on the post of Assistant Teacher vide appointment order dated 31.01.2004 issued by the Manager of the institution and in pursuance thereof, he joined the post on 03.02.2004. His salary bills were regularly being forwarded, but the payment of salary was not made. He again approached this Court by filing Writ Petition No. 31905 of 2004 seeking a writ of mandamus to command the respondents to make payment of his salary. It appears that the controversy regarding claim of the appellant for payment of salary on the post of Assistant Teacher remained pending. The then District Inspector of Schools vide letter dated 30th June, 2004, sought clarification from the Joint Director of Education whether the petitioner -appellant was entitled for payment of salary on the post of Assistant Teacher. Vide order dated 17.07.2008, the District Inspector of Schools rejected the claim of the petitioner -appellant for payment of salary and the approval accorded to his compassionate appointment as Assistant Teacher was cancelled. Aggrieved, the appellant approached this Court. Learned Single Judge finding that the petitioner -appellant having once availed the benefit of compassionate appointment in the year 1994, the right to such appointment stood exhausted and he does not have indefeasible right to claim appointment on compassionate basis as Assistant Teacher, dismissed the writ petition.
(3.) LEARNED counsel for the appellant vehemently contended that since the appellant holds requisite qualification for being appointed as Assistant Teacher, the same could not have been cancelled after giving him such appointment. He further sought to argue that under Regulation 103 of Chapter III, the dependent has to be given compassionate appointment keeping in view his qualification and since the appellant holds the requisite qualification prescribed for Assistant Teacher, he is liable to be given compassionate appointment on said post. Relying on the note appended to Regulation 103, it has been urged that since the said regulation has been made applicable in relation to those employees, who have died on or after 1st January, 1981, the petitioner -appellant having requisite qualification, ought to have been given compassionate appointment on the post of Assistant teacher.;