- (1.) THIS Special Appeal is directed against the judgment and order of the Hon'ble Single Judge dated 29-8- 2007 passed in Civil Misc. Writ Petition No. 31509 of 2002. The facts giving rise to the present Special Appeal are:
(2.) BAGHPUR Inter College, BAGHPUR, District Kanpur Dehat is an institution aided and recognized under the provisions of the Intermediate Education Act. A vacancy of a Class-3 post was caused in the institution due to death of the father of Devendra Bahadur Singh Chandel (the petitioner ). In accordance with the Regulations 101 to 107 of Chapter III of the regulations framed under the Intermediate Education Act, the petitioner made an application for compassionate appointment. The application was processed and was ultimately allowed on 6-12-2001. The petitioner was appointed as Class-3 employee in the institution. Since the petitioner was not paid his salary w. e. f. January, 2002, he approached this Court by means of Writ Petition No. 20787 of 2002. The writ petition was disposed of vide order dated 17-5-2007 requiring the District Inspector of Schools to examine the matter and to pass appropriate orders, in accordance with law. The District Inspector of Schools by means of his order dated 16-7-2002 refused payment of salary to the petitioner only on the ground that the compassionate appointment of the petitioner has not been approved by the Regional Level Committee constituted under the Government Order dated 19-12-2000. This order of the District Inspector of Schools was challenged by means of Writ Petition No. 31509 of 2002. In the writ petition an impleadment application was filed by the present Appellant namely Munna Lal claiming a right to be promoted against the said vacancy which was caused due to death of the petitioner's father. The Hon'ble Single Judge by means of the judgment and order under challenge, has held that since there is only one sanctioned Class 3 post in the institution, the same has to be filled by direct recruitment and, therefore, the compassionate appointment offered to the petitioner is legal. The present Appellant has no right to claim promotion against the said vacancy. With regards to non- payment of salary to the petitioner, the Hon'ble Single Judge has held that no approval is required from the Regional Level Committee under statutory regulations and since the vacancy cannot be filled up by way of promotion under the 50% quota in terms of the Chapter III, the petitioner was legally entitled for payment of salary. The order of District Inspector of Schools withholding the salary has, therefore, been quashed. Shri P. N. Saxena, Senior Advocate assisted by Shri Alok Dwivedi, Advocate on behalf of the Appellant Munna Lal submits that the issue as to whether a single post of Class III created in a recognized Intermediate College is to be filled by promotion in terms of Regulation 2 (2) of Chapter III or by direct recruitment has been considered by a Divisional Bench of this Court in the case of Jai Bhagwan Singh v. District Inspector of Schools, Gautam Budh Nagar & Ors. , (2006) 3 UPLBEC 2391. The Division Bench of this Court has held that one single post of Class III is to be filled by promotion at the first instance and in case suitable candidate for promotion is not available direct recruitment cannot be resorted to. He, therefore, submits that the Hon'ble Single Judge has failed to take note of the said Division Bench judgment. The Appellant has a right to claim promotion against one single post of Class III. He further points out that compassionate appointment can only be offered against a vacancy which is within the quota for direct recruitment and, therefore, appointment offered to the petitioner on compassionate ground against one single Class III post is legally not justified.
(3.) FACED with the aforesaid contentions, Shri Ashok Khare, Senior Advocate assisted by Shri P. N. Ojha submits that the Appellant Munna Lal is not eligible for promotion on the said Class III post. Therefore, the Appeal is misconceived. The legal position qua the issue of manner of appointment on one single Class III post as explained by the Division Bench of this Court in the case of Jai Bhagwan Singh (supra), i. e. the one single post of Class III has to be filled at the first instance by way of promotion and if the suitable candidate is not available, direct recruitment can be resorted has not been disputed. He however submits that the petitioner has been appointed under Regulations 101 to 107 and even if there is no vacancy in the said institution, he is entitled to be adjusted elsewhere and, therefore, payment of salary could not be stopped, more so, when the petitioner is continuously working in the institution. We have heard learned Counsel for the parties and have gone through the records of the present case.;