Sabhajeet Yadav - (1.) ON 29.10.2004, Sri Ashok Khare learned senior advocate for the petitioner and Sri R. K. Tripathi advocate for respondent Nos. 2 and 3 have been heard at length and on conclusion of hearing, the judgment was reserved.
(2.) THE brief facts of the case are that the father of the petitioner late Hira Sri Lal Srivastava, while working as head master in the Primary School Gauspur, Hathgaon, District Fatehpur run by the Uttar Pradesh Basic Education Board, died in-harness on 9.6.1999 leaving behind him his wife, four sons and one daughter. After his death, his uneducated widow demanded the service for the petitioner, who is her second eldest son, on any class-III post under Dying-in-Harness Rules applicable to the employees (teaching and non-teaching) of Uttar Pradesh Basic Education Board. According to the case of the petitioner, he is duly qualified to be appointed as a teacher or clerk in the establishment of the respondents, but he was offered only Class-IV post in the Junior High School, Amilispal, Hathgaon, District Fatehpur, as he was told that no vacancy exists in Class-III post and his Class-IV post will be changed on availability of vacancy in Class-III post in future. Accordingly he joined on Class-IV post as offered to him vide order dated 2.8.1999 passed by the District Basic Education Officer, Fatehpur. According to the petitioner, shortly thereafter on 24.4.2000 the District Basic Education Officer, Fatehpur has appointed Sri Pawan Kumar Uttam and Smt. Sweta as Class-III employees in the office of Deputy Basic Education Officer, Fatehpur, in the pay scale of Rs. 3,050 and 4,590 under Dying-in-Harness Rules. THEy have also qualification of Intermediate. THE petitioner has also filed the letter of appointment issued to Sri Pawan Kumar Uttam and Smt. Sweta as Annexure-2 of the writ petition. Feeling aggrieved against the aforesaid action of the District Basic Education Officer, the petitioner has approached the Secretary Basic Education, Government of Uttar Pradesh as well as the Minister of the concerned department of education by moving applications before them. THE aforesaid applications have also been filed by the petitioner as Annexures-3 and 4 of the writ petition. On the application of the petitioner it appears that some endorsement has been made to the District Basic Education Officer by the concerned Minister of the Government of Uttar Pradesh indicating therein that the petitioner may be adjusted against Class-III post. In support of his claim petitioner has also filed Government order dated 4.9.2000, issued under Section 13 (1) of Uttar Pradesh Basic Education Act, 1972 (U. P. Act No. 34 of 1972) hereinafter referred to as Act 1972, as Annexure-5 of the writ petition. Finding no favour with the concerned District Basic Education Officer, Fatehpur, the petitioner has filed the instant writ petition seeking the relief to the effect that a writ, order of direction in the nature of mandamus may be issued commanding the respondents to appoint/promoted the petitioner on the post of untrained teacher or clerk at the earliest as per provisions of Dying-in-Harness Rules and further a relief has been sought for in the nature of writ, order or direction to the effect that respondent No. 3 may be directed to comply with the order of departmental Minister/Secretary of Government of U. P. Dr. Chandra Pal, the then working as District Basic Education Officer, Fatehpur, has filed counter-affidavit on behalf of respondent Nos. 2 and 3 in the writ petition and has come forward, inter alia, with the case that the petitioner has been offered appointment on Class-IV post on compassionate ground in the institution in question and in pursuant thereof he has joined the post without any objection and since then he is continuously working on the aforesaid post and is being paid his salary month to month. It is further averred in the counter-affidavit that there was no assurance by any of the officers/District Basic Education Officer for changing his Class-IV post in Class-III post on account of availability of vacancy in Class-III post in future. The Minister and Secretary of the department concerned have only directed for doing the needful in accordance with the provisions of law. Therefore, the petitioner can have no cause of complaint to maintain the instant writ petition before this Court for the reliefs claimed in it. For better appreciation of the case of respondents, the averments contained in paragraphs 8 and 9 of the counter-affidavit are quoted herein below : 8.That the contents of paragraphs 6 and 7 of the writ petition has already been replied in the proceedings paragraphs of this affidavit, as such they are denied accordingly. However, in reply it is hereby submitted that the petitioner was never assured for changing his appointment from Class-IV to Class-III cadre, as such the averment in this respect made in para under reply is wholly false and baseless. So far as the letters of Hon'ble Minister and Secretary Basic Education are concerned, it is made clear that a direction and recommendation has been made to District Basic Education Officer for doing the needful in the interest of justice. 9.That the contents of para 8 of the writ petition are not admitted as stated being misconceived and misleading before this Hon'ble Court. In reply it is hereby submitted that in the Government order dated 4.9.2000, it has never been provided that in case once a person appointed in Class-IV post due to non-availability of any Class-III post, in future on the availability of the Class-III post the said person can again to be posted from Class-IV to Class-III cadre towards the compassionate appointment. Since the petitioner is already working and obtaining salary from the date of his initial appointment, i.e., 2.8.1999 on Class-IV post, as such the petitioner cannot claim again to avail the benefit of Dying-in-Harness Rules. The allegation against the respondent No. 3 regarding mala fide and violation of constitutional provision is wholly baseless and the petitioner has made the same in para under reply just to make out his case in the instant writ petition. Rest of the averment made in para under reply being contrary to the facts hence they are denied.
(3.) THE thrust of the submission of the counsel for the petitioner is that in view of the Government order, dated 4.9.2?00, which has been made applicable with effect from 8.1.1999 having regard to the educational qualification as Intermediate, it was obligatory on the part of the respondents to offer a compassionate appointment to the petitioner on Class-III post and not on Class-IV post. In any case, shortly after the appointment of the petitioner on 2.8.1999, the other persons, namely, Sri Pawan Kumar Uttam and Smt. Sweta, who have also identical educational qualification as Intermediate, have been offered appointment on Class-III post vide letter of appointment dated 24.2.2000. THErefore, the petitioner has been grossly discriminated in the matter of employment in utter violation of the provisions of Article 16 (1) of the Constitution of India. Sri Khare has further contended that since in the counter-affidavit filed by the District Basic Education Officer, Fatehpur, there is no averment at all specifically denying the fact that at the time of offer of appointment to the petitioner there exists no vacancy in the establishment of respondents against Class-III post and the vacancies, which were offered to Sri Pawan Kumar Uttam and Smt. Sweta, have been occurred later on after appointment of the petitioner. THErefore it is established that the petitioner has been grossly discriminated in the matter of employment. In any event of the matter while considering the claim of the petitioner, the relevant provisions of Government order dated 4.9.2000 have not been adhered to. In support of his contentions the learned counsel for the petitioner has placed reliance upon the decision of Apex Court rendered in Surya Kant Kadam v. State of Karnataka and others, 2001 (2) AWC 1128 (SC) : 2002 SCC (L and S) 1115 and a decision of this Court rendered in Sudhakar Srivastava v. Deputy Director of Education (Secondary) 9th Region, Faizabad and others, 2001 (1) AWC 560 (LB) : 2001 (1) ESC 419. Before dealing with the rival contentions of the parties, it is necessary to examine the aims, object and purpose of the scheme underlying in Dying-in-Harness Rules for grant of compassionate appointment. The issue of grant of compassionate appointment under Dying-in-Harness Rules is not res-integra. The Apex Court and this Court have considered the issue from time to time and provided sufficient guidance for giving employment under Dying-in-Harness Rules. In the case of Smt. Sushma Gosain and others v. Union of India and others, AIR 1989 SC 1976, in paragraph 9 of the report it was observed that : 9.We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. if there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.;