- (1.) SUDHIR Agarwal, J. Both these writ petitions are connected with each other and therefore, as agreed by the learned Counsel for the parties, namely, Sri Vinod Sinha and Sri V. S. Gupta, holding brief on behalf of Sri Ashok Khare and learned Standing Counsel, have been heard together and are being decided by this common judgment at the stage of demission under the Rules of the Court.
(2.) WRIT Petition No. 42092 of 2005 (hereinafter referred to as the 'first petition') has been filed by the Committee of Management, Late Pt. Laxmi Chand Paliwal Inter College, Ingohata, Hamirpur (hereinafter referred to as 'the College'), seeking a writ of certiorari quashing the order dated 6/7th February, 2004, passed by respondent No. 2 Basic Shiksha Adhikari, Hamirpur, appointing respondent No. 3 Diwakar Singh as Assistant Teacher under Dying in Harness provisions pursuant to the Government Order dated 31st January, 1997 and further a writ of mandamus has been sought directing respondent No. 2 not to make payment of salary to the respondent No. 3. Civil Misc. Writ Petition No. 51388 of 2005 (hereinafter referred to as 'the second petition') has been filed by Sri Diwakar Singh against the order dated 1-7-2005 passed by the Principal of the College seeking his explanation on the ground that he is not making attendance register available and also a mandamus commanding the respondents not to interfere in his working as Assistant Teacher in the College and to pay his salary regularly. The facts in brief as stated in the first writ petition are that the College is a recognized Intermediate College under the provisions of U. P. Intermediate Education Act, 1921 (hereinafter referred to as "the 1921 Act") and being in grant-in-aid for the purpose of payment of salary, the same is being paid from the State exchequer. The father of respondent No. 3 was working as Assistant Teacher in the College which at that time was a Junior High School, and died on 6th August, 1986. Sri Diwakar Singh respondent No. 3 for the first time, submitted an application on 6th February, 2004, claiming compassionate appointment in pursuance whereto the District Basic Education Officer, Hamirpur passed order on the same day, i. e. 6th February, 2004 granting him compassionate appointment in the College which was communicated to the petitioner on 7-2-2004. Against the aforesaid appointment, the petitioner Committee of Management made a representation before the District Basic Education Officer on 11th April, 2004 and 4th April, 2005 but he did not take any action thereon, whereafter the writ petition was filed seeking a mandamus commanding respondent No. 1 to decide the representation dated 11th April, 2004 and not to make any payment of salary to respondent No. 3. By means of an amendment application a prayer was added seeking a writ of certiorari for quashing the order dated 7th February, 2004 whereby the respondent No. 3 was appointed on compassionate basis. Despite time having been granted to respondents 1 and 2 no counter-affidavit has been filed on their behalf. However, respondent No. 3 has filed counter-affidavit to which the petitioner Committee of Management has also filed rejoinder affidavit. Respondent No. 3 Diwakar Singh has said that the College has been granted recognition at the level of High School and Intermediate without any financial assistance (Vittavihin) and only upto Junior High School the College is recognized and is in grant-in-aid. Hence, for the purpose of payment of salary the provisions of U. P. Junior High Schools (Payment of Salary to Teachers and other Employees) Act, 1978 (hereinafter referred to as `1978 Act') are applicable. His father, late Jagran Singh died on 6th August, 1986 leaving his widow and two minor sons including respondent No. 3 whose date of birth is 8th March, 1982. The second son is elder to respondent No. 3. Earlier, he applied for compassionate appointment as a Class III employee, i. e. , for the post of clerk but the same could not be granted for want of vacancy. Thereafter the respondent No. 3 applied for compassionate appointment as a Teacher after obtaining graduate degree in the year 2003 which was allowed by the District Basic Education Officer, Hamirpur and respondent No. 3 was appointed as Assistant Teacher in Primary Section of the College vide order dated 6/7th February, 2004. Pursuant to the aforesaid order the Committee of Management also issued an appointment letter dated 6th May, 2004 which was subsequently modified by order dated 21st May, 2004 appointing him as untrained Assistant Teacher on the fixed pay of Rs. 2,750/-in the College. The second writ petition has been filed by Sri Diwakar Singh who has been impleaded as respondent No. 3 in the first writ petition, seeking a writ of mandamus for payment of salary and also for a mandamus directing the respondents not to interfere in his functioning as Assistant Teacher in the College.
(3.) THE fate of the second writ petition would depend upon the fate of the first writ petition. I, therefore, proceed to consider the first writ petition on merit. Admittedly, the father of the respondent No. 3 died in August 1986 and for almost 18 years, the family survive without any compassionate appointment. Moreover, prior to 1st January, 1991 there appears to be no provision made for providing compassionate appointment in Junior High School and in this regard it appears that for the first time Government Order No. 2127/15-6-91-8 (66)/90 was issued on 27th September, 1991, w. e. f. 1st January, 1991. Certain clarifications in this regard were issued vide Government Order dated 31st January, 1997, stating that one member of the family of the deceased employee who was working as Teacher or non- teaching staff in a pre-secondary school, shall be given appointment if he is 18 years and above and possesses requisite educational and training qualification. However, Explanation 2 of the aforesaid Government Order clearly provides that the aforesaid arrangement would be applicable to only those employees who have died on 1st January, 1991 and thereafter and the application for compassionate appointment is made within five years from the date of death of such employee. Sri Vinod Sinha, learned Counsel for the petitioner contended that after 18 years, the compassionate appointment could not have been granted to respondent No. 3 and it is patently illegal and inconsistent to the very object and purpose for which the provision of compassionate appointment has been made. He further submitted that since in the year 1986 there was no provision for providing compassionate appointment to the employees of Junior High School, the respondent No. 3 could not have been appointed under the Government Orders issued subsequently since the Government Orders are not retrospective. Lastly, he submitted that the appointment of Assistant Teacher is governed by the statutory Rules applicable to the Junior High School where a person for the post of Assistant Teacher must possess educational qualification of graduation and training certificate, namely, BTC/htc or any other equivalent training. Respondent No. 3 did not possess any training certificate and therefore, was ineligible and could not have been appointed.;