- (1.) D. P. Singh, J. Heard Counsel for the parties.
(2.) M. M. Ali Memorial Inter College, Kanpur is a duly recognized minority institution imparting education till the intermediate level but receives grant-in-aid only uptill the High School level. Father of respondent No. 4, Jamil Ahmad, who was working as a permanent clerk in the institution, died in harness on 12-1- 2001. This vacancy of clerk was filled up by promoting one Syed Mehmood Ahmad creating a vacancy on a post of peon, which was advertised by the Management on 2-2-2001 and the petitioner, alongwith others, applied in pursuance thereof. After following the due procedure, petitioner was selected and papers were forwarded to the District Inspector of Schools on 21-5-2001, he approved the appointment of the petitioner on 22-8-2001 and the petitioner joined the institution on 24-8-2001. Upon the death of his father, the respondent No. 4 applied for compassionate appointment on 20-1- 2001 whereupon he was given appointment by the educational authorities on a class IV post in Christ Church College on 7-11-2001 but he was not allowed to join there, thus he approached the educational authorities. He represented his case before the Joint Director whereupon the District Inspector of Schools vide order dated 16-1-2002 cancelled the appointment of the petitioner and by amending the order dated 7-11-2001, appointed him in place of the petitioner. Both these orders are impugned in the present petition. Learned Counsel for the petitioner has firstly urged that both the orders dated 16-1-2002 and the amended order dated 7-11-2001 were passed on the representation of the respondent No. 4 against the interest of the petitioner without affording him any opportunity of hearing and thus are void. He has relied upon a Division Bench decision of this Court rendered in the case of Mobal Lal Sharma v. District Inspector of Schools, 1982 UPLBEC 213. In the same breath he has submitted that the District Inspector of Schools had no power to recall or review his order, and, on this score also, he contends that the orders are vitiated. In support, he has relied upon another Division Bench decision of this Court rendered in the case of Radhey Shyam & Ors. v. District Inspector of Schools, 1977 ALJ 451.
(3.) SO far as the ratio in the two cases are concerned, no exception can be taken as that is the law which holds good even till date but, it has to be examined whether the petitioner has any vested right which has been impinged upon by the two orders. The procedure for appointment to a class IV post is provided in the scheme of Regulations 101 to 107 of Chapter III of the Regulations framed under the U. P. Intermediate Education Act. Regulation 101 mandates that any vacancy on the post of any non-teaching staff of a recognized institution cannot be filled up except with the prior approval of the Inspector. Regulation 102 obligates the appointing authority to intimate the Inspector about any vacancy to be caused by retirement, three months before the retirement, and in case of vacancy by death, within seven days. Regulation 103 stipulates that where any incumbent dies in harness, one member of his family would be appointed in his place if he fulfills the given requirements. However, this right to compassionate appointment was not applicable to minority institutions till 8-8-2001. Under Regulation 104 the management has to send a report to the Inspector in case of death in harness disclosing certain information to be entered in the relevant register at the Inspectorate. Any member of the family of the deceased employee may apply for compassionate appointment to the respondent under Regulation 105, which would be considered by a committee and on its recommendation the management is obliged to issue an appointment letter. If there is no vacancy in the institution, the selectee can be appointed in any other institution under Regulation 106 and the management has to inform the Inspector about the appointment within one month under Regulation 107.;