SABHAJEET YADAV,J. - (1.) THE brief facts of the case are that the father of petitioner namely Sant Bhawan Shukla was a permanent Assistant Teacher in Junior High School in District Padrauna run and controlled by Basic Shiksha Parishad U.P., Allahabad, died in harness i.e. during the course of employment on 5.5.1982. At the time of his death no other member of family of petitioner was in the employment to relieve the family from financial hardship and distress arose on account of death of sole bread earner of the family. The petitioner was also unemployed and has possessed only Intermediate qualification. According to him, he was eligible for being appointed as an untrained teacher in junior high school. The petitioner has applied for his compassionate appointment under dying in harness rules on the post of Asstt. Teacher in Junior High School run by U.P. Basic Shiksha Parishad but on 7.3.1987 he was appointed as Asstt. Teacher in Primary School instead of Junior High School. In pursuance thereof the petitioner joined the post on 9.3.1987. It is alleged that State Government has issued several orders from time to time with regard to its policy for compassionate appointment under Dying-in-Harness Rules. In para 3 of such Government Order dated 2.2.1996 it was provided that the appointment of a dependent of a deceased employee would as possible as be made in the institution on the post of Assistant Teacher where the deceased had been working, and if no post of Assistant Teacher is vacant in that institution then in any other institution of that district and in case there is absolutely no vacancy in the district, then a supernumerary post be created in the school where the deceased employee had been working and one dependent may be provided employment on the post of Assistant Teacher provided he is eligible for being appointed on the said post. It is stated that in view of clear-cut policy of the Government, the petitioner was fully eligible to be appointed as Assistant Teacher in Junior High School, but instead thereof he was appointed as Assistant Teacher in Primary School contrary to the policy of Government and against the wishes of the petitioner. It is further stated that on 13.1.1996 the Head Master of a Junior High School of District Padrauna made a request from District Education Officer for appointing a teacher in Junior High School on account of transfer of four teachers from that school elsewhere, there upon the District Basic Education Officer, Padrauna vide order dated 13.1.1996 made temporary arrangement appointing the petitioner in Junior High School on the post of Assistant Teacher (Sanskrit) Dandopur. Subsequently thereafter another District Basic Education Officer took over the charge of office and passed an order on 16.3.1996 directing the petitioner's posting in Primary School. Feeling aggrieved against this order of posting dated 16.3.1996 the petitioner made an application before Basic Shiksha Adhikari on 8.4.1996 requesting therein that he may be given permanent appointment as Assistant Teacher in Junior High Schools instead of Primary School, in pursuance of Govt.Order dated 2.2.1996. Thereafter petitioner made several reminders to same effect and ultimately he filed writ petition No. 35512 of 1996, Kailash Nath Shukla Vs. Regional Assistant Director, Basic Education and others, which was disposed of finally by this Court vide order dated 6.11.1996 with the direction that representation of petitioner may be decided expeditiously. In pursuance of the aforesaid order respondent no.2 has decided the representation of petitioner vide order dated 27.1.1997 whereby the representation of petitioner has been rejected, hence this petition.
(2.) ON behalf of respondents a detail counter affidavit has been filed while justifying the impugned order dated 27.1.1997, contained in Annexure-7 of the writ petition. In this counter affidavit, the stand taken by respondents before making parawise reply of the writ petition, in para 4,5 and 6 of the counter affidavit are as under: "4. That it will further not be out of place to submit before this Hon'ble Court that there are 2 sets of institutions are being running by the Board of Basic Education. One is Junior Basic School and other is Senior Basic School in which only the post of Assistant Teacher/Master in Junior Basic School is post of Direct Recruitment (In respect of Gents) in accordance with the procedure given in rule 14 and 15 of the Basic Education Teachers Services Rules 1981 whereas the post of Assistant Teacher in Senior Basic School or the post of Head Master in Junior/Senior Basic School are the promotional post in accordance with the provisions given in rule 18 of the said rules. The post of Assistant master in Senior Basic School or the post of Head Master in Junior/Senior Basic School cannot be filled by way of direct recruitment, which is clear in rule 5 of the said rules. For the kind perusal of this Hon'ble Court a copy of the extract of Rule 5 of the said rules is being filed herewith and marked as Annexure C.A. II to this affidavit. Here many of the suitable candidates for promotion from the post of Assistant Teacher in Junior Basic School to the post of Head Master in Junior Basic School or, to the post of Assistant Teacher in Senior Basic School are already available and waiting even in District Kushinagar itself and also in other district of Province and therefore in view of rule 5 of the said rules the petitioner has got no merit at all and his writ petition is liable to be dismissed with cost on this ground alone. 5. That it will also be pertinent to mention before this Hon'ble Court that the petitioner is illegally claiming for his Direct Recruitment as Assistant Teacher in Senior Basic School on account of misleading/misinterpreting the Government order dated 2.2.1996 (Annexure no.3 to the writ petition) whereas in paragraph no.1 of the said Government order itself it is clearly mentioned that the said Government order has been issued in respect of Director Recruitment of Assistant Teacher in Junior Basic School on compassionate ground not in respect of any appointment in Senior Basic School/Junior High School. The word "USI VIDYALAYA" (The same Institution) in paragraph no. 3 of the said Government order has been given in respect of the location of the Junior Basic School not in respect of Senior Basic School. A copy of the said Government order dated 2.2.1996 is being filed herewith and marked as Annexure no. C.A. III to this affidavit. 6. That prior to issuance of said Government order dated 2.2.1996 the Government has already issued a Government order dated 23.3.1990 directing to make the compassionate appointment on the post of Assistant Teacher in Primary Institution not in Junior High School. A copy of the said Government order is also being filed herewith and marked as Annexure no. C.A. IV to this affidavit. From the perusal of the both said orders also it is clear that the petitioner has got no merit at all and his so called claim is void abinitio and therefore the writ petition is liable to be dismissed." Having heard the rival contentions of learned counsel of the parties and from perusal of records, the first question arises for consideration as to whether the petitioner was entitled for compassionate appointment on the post of Assistant Master in Primary School (Junior Basic School) or on the post of Assistant Master in Junior High School (Senior Basic School) which is a promotional post under relevant service rules in schools run and controlled by U.P. Basic Shiksha Parishad under Dyingin- Harness rules?
(3.) TO find out complete and correct answer to this question it is necessary to examine the relevant provisions of Dyingin- Harness Rules and/or Govt. Orders having material bearing on the issue under which compassionate appointment under aforesaid rules are made vis-Ã-vis provisions of relevant service rules. In this connection it is necessary to mention here that U.P. Basic Education Teachers Service Rules, 1981 is relevant service Rules dealing with such appointments. Rule-2 contains definition clause, which defines and describes various expressions employed and used under the rules. Rule- 2 (b) defines the expression "Appointing Authority", in relation to teachers referred to in Rule-3, means the District Basic Education Officer. Rule-2 (c) defines the expression "Basic School" which means a school where instructions from class I to class VIII are imparted. Rule-2(h) defines expression "Junior Basic School" means a Basic School where instructions from class I to class V are imparted. Rule-2 (m) defines the expression "Senior Basic Schools", means where instructions from class VI to class VIII are imparted. Rule-3 provides extent of applicability of rules which is made applicable to all teachers of Local Bodies transferred to the Basic Education Board under Section 9 of the U.P. Basic Education Act, 1972 and all teachers employed for the Basic and Nursery schools established by the Board. Rule-5 provides sources of recruitment, which reads as under: "5. Sources of recruitment.- The mode of recruitment to the various categories of posts mentioned below shall be as follows: (a) (i) Mistresses of Nursery Schools (ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools By direct recruitment as provided in Rules 14 and 15; Ditto (b) (i) Head Mistresses of Nursery Schools (ii) Head Masters and Head Mistresses of Junior Basic Schools (iii) Assistant Masters of Senior Basic Schools (iv) Assistant Mistresses of Senior Basic Schools (v) Head Masters of Senior Basic Schools (vi) Head Mistresses of By promotion as provided in Rule 18; Ditto Ditto Ditto Ditto Ditto Senior Basic Schools Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15." ;