R. B. Misra, J. - (1.) -Heard learned counsel for the petitioner and learned counsel for respondent No. 4 Shyam Behari Agrawal in Writ Petition No. 1913 of 2000 and Sri Ramesh Upadhyay learned counsel for the petitioner Sri Shyam Behari Agrawal in Writ Petition No. 4342 of 2000 as well as learned counsel for the respondents.
(2.) IN Writ Petition No. 1913 of 2000 the order dated 28.12.1999 (Annexure-1 to the writ petition) passed by Chairman/Manager, Nagar Palika Parishad Kosi Kalan, Mathura is under challenge whereby the petitioner working as a clerk in Nagar Palika INter College Koshi Kalan was reverted to her original post of Toll Moharrir and in her place Shyam Behari Agrawal has been directed to resume the charge. Further prayer has been made for payment of arrears of salary to the petitioner to the post of clerk w.e.f. September, 1999 and for regularization to the post of clerk. In Writ Petition No. 1913 of 2000 petitioner Smt. Sneh Lata had made Sri Shyam Behari Agrawal as respondent No. 4 whereas in Writ Petition No. 4342 of 2000 filed by Sri Shyam Behari Agrawal, Smt. Sneh Lata has not been made a party. However in Writ Petition No. 4342 of 2000 prayer has been made to quash the order dated 18.1.2000 (Annexure-14 to the writ petition) whereby the order dated 28.12.1999 transferring Smt. Sneh Lata and reverting her to the post of Toll Moharrir from the post of clerk was stayed and the appointment of Sri Shyam Behari Agrawal to the post of clerk was cancelled. According to the petitioner Smt. Sneh Lata she is High School pass and Madhyama (equivalent to Intermediate examination) and being eligible to the post of clerk was appointed by an order dated 25.3.1982 of Executive Officer of Nagar Palika Parishad Kosi Kalan after the termination of Rajendra Kumar Arya who was given appointment by an order dated 29.2.1982 of Executive Officer, Nagar Palika Parishad, Kosi Kalan on compassionate ground. After the death of her father Sri Kailash Chandra Agrawal on 4.3.1982 while working as a Tax and Revenue Inspector in Nagar Palika Parishad, Kosi Kalan the appointment of Smt. Sneh Lata was made in the vacancy which was available after the termination of Sri Rajendra Kumar Arya who was later on re-instated, therefore, in compliance to the order dated 25.3.1982 (Annexure-2, to the writ petition) the petitioner was appointed to the post of Toll Lekhak which was available after the retirement of Sri Deo Paraksh, Toll Lekhak. It appears that in the meantime the Incharge, Nagar Palika Parishad, Kosi Kalan, Mathura had shifted the petitioner in Nagar Palika Balika Inter College, therefore, against the above order the petitioner preferred appeal before the Commissioner which was not disposed of, however the petitioner was harassed by passing frequent transfer order and the petitioner being deployed as Toll Lekhak was discharging the work and function of clerk in the College, however the petitioner was also confirmed w.e.f. 1.8.1986 to the post of Toll Lekhak. It appears that the post of Typist clerk has fallen vacant in the office of Balika Inter College under Nagar Palika Parishad due to promotion of one Smt. Laxmi Gupta to the post of Head Clerk. However the respondents instead of appointing the petitioner, appointed Sri S. K. Kulshrestha against the post of Typist clerk on 11.12.1987. Smt. Laxmi Gupta promoted to the post of Head Clerk is the mother of Sri Shyam Behari Agrawal, respondent No. 4 in the present Writ Petition 1913 of 2000. Being aggrieved against the action of the respondents the petitioner preferred appeal/representation against the appointment of Sri S. K. Kulshrestha to the post of Typist clerk and the said appeal of the petitioner was dismissed by the Commissioner, Agra Division on 18.4.1988 with an observation that when ever vacancy of clerk arises in the Nagar Palika Parishad Balika Inter College the petitioner shall be appointed on such post. It appears that after the death of one Sri Subhash Chandra Agrawal an employee in the Nagar Palika Parishad on 17.10.1988, the said post of clerk was to be fulfilled in Balika Inter College and for that purpose an advertisement was made in 'Amar Ujala', however the petitioner was given promotion to the post of clerk by an order dated 5.1.1989 (Annexure-6 to the writ petition) by President of Nagar Palika, Kosi Kalan, who is also the Manager of Balika Inter College, Mathura and petitioner in compliance to the above order had joined the post of clerk and the petitioner was regularly working as clerk and getting salary. The petitioner was expecting her confirmation to the above post and has also submitted her application to that effect to the Principal of the College who also recommended the case of the petitioner for regularization.
(3.) IT appears that a post of clerk had again fallen vacant in Balika Inter College, Mathura and the advertisement was published on 19.11.1998 to fulfil the post. The petitioner again submitted representation to the Sub-divisional Magistrate against the said post enclosing the appointment order dated 18.4.1988 passed by the Commissioner, Agra Division. In reference thereto the petitioner was given a temporary promotional appointment. IT appears that on the death of one Sri Subhash Chandra Agrawal on 17.10.1988, Sri Shyam Behari Agrawal, respondent No. 4 born on 18.5.1979 was about 11 years old and in his matter the Nagar Palika had resolved on 4.1.1989 to appoint him to the post of clerk in Nagar Palika Parishad after attaining the age of majority he would be appointed to the post of clerk and when Sri Shyam Behari Agrawal became major he filed representation before the Commissioner for getting appointment on compassionate ground and when no decision was taken by the Commissioner, he filed Writ Petition No. 24732 of 1999, Shyam Behari Agrawal v. District Inspector of Schools, Mathura and others, where Smt. Sneh Lata, petitioner of Writ Petition No. 1913 of 2000 was not made a party and some other person Indra Parashar, Tax Collector was made party in the writ petition. However the Writ Petition No. 24732 of 1999 was disposed of by an order dated 15.6.1999 by this Court directing the respondents to decide the representation of the petitioner by a speaking order. In reference to the order dated 15.6.1999 it appears that the Commissioner by its order dated 2.8 1999 directed to appoint Sri Shyam Behari Agrawal to the post of clerk and in reference thereto the Chairman/Manager, Nagar Palika Balika Inter College, Kosi Kalan, Mathura has appointed Sri Shyam Behari Agrawal to the post of clerk on 19.8.1999. Consequent upon, the petitioner Smt. Sneh Lata was to be reverted back from the post of clerk to the post of Toll Moharrir in view of the order dated 28.12.1999. This Court by an interim order dated 13.1.2000 stayed the impugned order dated 28.12.1999. In these circumstances the order dated 19.8.1989 was recalled by the order dated 18.1.2000 (Annexure-4 in Writ Petition No. 4342 of 2000) and this Court by its order dated 3.2.2000 however, has stayed the order dated 18.1.2000 recalling the appointment of Sri Shyam Behari Agrawal as a clerk. In these circumstances, the petitioner Smt. Sneh Lata was forced to work as a Toll Moharrir and Sri Shyam Behari Agrawal had started working as a clerk. According to the learned counsel for the petitioner, Smt. Sneh Lata was given appointment on compassionate ground on the death of her father and she was also assured by order dated 18.4.1989 that whenever the vacancy would be available, she would be given appointment to the post of clerk. Since initially she was appointed on her own right to the post of clerk, however she was subsequently given an appointment to the post of Toll Moharrir/Toll Lekhak but she was appointed by way of promotion on 5.1.1989 on the death of Sri Subhash Chandra Agrawal, the father of Sri Shyam Behari Agrawal. The appointment as a clerk by order dated 5.1.1989 (Annexure-6 to the writ petition) is the appointment of permanent nature and the petitioner was not to be reverted back without observing the due procedure of law moreso, for accommodating Sri Shyam Behari Agrawal, respondent No. 4 who at the time of death of his father on 17.10.1988 was minor, i.e., only 11 years of age as his date of birth was 18.5.1979 as indicated in (Annexure-4 to the writ petition) in the High School Certificate in Writ Petition No. 4342 of 2000 and in the resolution No. 3 dated 4.1.1989 of Nagar Palika making reservation in favour of the Shyam Behari, for making appointment in future cannot be legally sustainable under the compassionate ground under U. P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974. Whereas on behalf of learned counsel for Sri Shyam Behari Agrawal it has been stated that the appointment dated 19.8.1989 of Sri Shyam Behari Agrawal to the post of clerk was never challenged by any one except by the impugned order dated 18.1.2000 and the appointment of Sri Shyam Behari Agrawal made on compassionate ground is permanent basis cannot be taken away except by adopting the proper procedure for terminating the service. Learned counsel for the petitioner, Smt. Sneh Lata has submitted that the appointment of Sri Shyam Behari Agrawal could not be made at such belated stage on compassionate ground after the 11 years of death of the father of Sri Shyam Behari Agrawal, more so when his mother Laxmi Gupta was already in employment to the post of Principal. The initial appointment of 19.8.1989 though not challenged specially said to be de-horsed the rules and provisions being against the spirit of the compassionate appointment, cannot be legally sustainable. According to the learned counsel for Smt. Sneh Lata it was a deliberate attempt on the part of Sri Shyam Behari Agrawal that without making the petitioner a party in the Writ Petition No. 4342 of 2000, an interim order was obtained by this Court by not disclosing full relevant facts before this Court.;