- (1.) The present special appeal has been preferred questioning the correctness of an interim order dated 08.06.2016, reproduced hereinunder:- "Case :- SERVICE SINGLE No. - 13656 of 2016 Petitioner :- Om Prakash Mishra Respondent :- State Of U.P Thru. Prin. Secy.For Education (Basic) & Ors. Counsel for Petitioner :- Avnish Kumar Singh,Laltaprasad Misra Counsel for Respondent :- C.S.C,A.S. Pawar,J.B.S.Rathour,P.K.Singh Vats Hon'ble Ritu Raj Awasthi,J. Notice on behalf of opposite parties no.1 to 4 has been accepted by learned Chief Standing Counsel, whereas Mr. J.B.S. Rathore, Advocate has accepted notice on behalf of opposite parties no.5 and 6 and Mr. H.G.S. Parihar, Senior Advocate assisted by Mr. P.K. Singh Vats, Advocate has put in appearance on behalf of opposite party no.9 and filed memo of appearance, same is taken on record. Issue notice to opposite parties no.7 and 8 returnable at an early date. Dr. L.P. Mishra, learned counsel for the petitioner submits that the petitioner has been appointed on the post of Clerk in the institution concerned. The appointment of petitioner shall be deemed to be approved under Rule 15 (5) (iii) of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees Service) Rules, 1984. The petitioner has preferred Writ Petition No.5174 (SS) of 2015 with respect to payment of salary to the petitioner, which is pending consideration, however, in most arbitrary and illegal manner the opposite parties under political pressure have taken a decision to appoint opposite party no.9 on compassionate grounds in place of petitioner. Submission is that the opposite party no.9 is not entitled to get compassionate appointment and moreover the Committee for consideration of compassionate appointment cannot consider the validity of appointment of the petitioner and hold that appointment of petitioner on the post of Clerk is illegal. The order impugned clearly indicates that the Committee while considering the compassionate appointment of opposite party no.9 has come to conclusion that appointment of petitioner is illegal. Mr. H.G.S. Parihar, learned Senior Advocate appearing for opposite party no.9, on the other hand, submits that the Management has committed fraud with respect to alleged appointment of the petitioner as no documents were sent to the office of B.S.A. for approval. Counter affidavit has been filed in Writ Petition No.5174 (SS) of 2015. The opposite party no.9 is in dire need of employment as there is no bread-earner in the family. He is fully eligible and entitled to get compassionate appointment. Moreover, the appointment of the petitioner was made prior to expiry of the period of thirty days as contemplated under Rule (iii) of 15 (5) of the Act which itself indicates that appointment of the petitioner was illegal. Be that as it may, prima facie I am of the view that since writ petition preferred by the petitioner, which goes to the very root regarding alleged appointment of the petitioner on the post of Clerk in the institution is pending consideration the status of the petitioner at present shall not be changed. List this case along with Writ Petition No.5174 (SS) of 2015. In the meantime, opposite parties may file counter affidavit. Till the next date of listing, the status-quo with respect to the petitioner shall be maintained, however, it is made clear that in case it is necessary to give compassionate appointment to opposite party no.9 the same shall be done by giving him compassionate appointment against a supernumerary post, looking to his qualification. Order Date :- 8.6.2016 "
(2.) The dispute centres around the appointment on the post of a Clerk in a privately managed Basic School namely, Sri Patti Devi Uchchatar Madhyamik Vidyalaya, Bilwayee, Sultanpur, the appointment whereof is governed by the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees Service) Rules, 1984.
(3.) Om Prakash Mishra, the petitioner in both the writ petitions, and respondent No.1 herein, claimed appointment on the post of Clerk under the aforesaid Rules on the post having fallen vacant substantively due to retirement of one Tribhuvan Sharma, who attained the age of superannuation on 31.07.2013. He alleges that the Manager of the Committee wrote a letter dated 15.07.2013 seeking permission for proceeding to make appointment which intimation according to him was received in the Office of the District Basic Education Officer, Sultanpur, followed by a reminder but the District Basic Education Officer did not pay any heed to the same. It is alleged that since the work of the Institution was suffering, the Management proceeded to advertise the post in two daily newspapers: one in English Daily published from Lucknow namely, 'The Pioneer', and in a local daily namely, 'Trigut Dainik', Gonda. The application was moved by the respondent No.1 and all other candidates who were called for interview on 22.06.2014 about which information is alleged to have been given to the District Basic Education Officer to send his observer. The observer was, however, not sent and accordingly, Om Prakash Mishra was selected as the successful candidate by the Selection Committee whereupon, a resolution was passed on 01.07.2014 to appoint Om Prakash Mishra on the post in question. It is alleged that a letter of appointment followed whereupon the petitioner joined his duties and all these documents were dispatched to the Office of the District Basic Education Officer, Sultanpur for according approval and financial sanction for release of salary.;