D.P. Singh, J. - (1.) HEARD counsel for the petitioner, Sri Ashok Khare, learned Senior Advocate assisted by Sri Suresh Chandra Dwivedi for respondent nos. 4 and 5 and learned Standing Counsel for respondent nos. 1, 2 and 3. The father of the petitioner, Sangam Lal, was working as a Lecturer in Biology in Public Inter College, Motihan, in district Allahabad , which is a duly recognized and aided institution. He died in harness on 10.3.2007 leaving behind the petitioner and his elder sister Sweta as his mother had already predeceased his father in August, 2006. Alleging that the deceased father of the petitioner was the sole bread winner, he applied for compassionate appointment under the regulations. The District Inspector of Schools vide a letter dated 8.8.2007, after a resolution of the District Level Committee dated 16.7.2007 resolving to appoint the petitioner in the institution of respondent nos. 4 and 5,(here-in-after referred to as the institution) directed them to issue the appointment letter. However, the institution neither issued any appointment letter nor allowed him to join. The petitioner approached the District Inspector of Schools through his letter dated 17.8.2007 complaining non-compliance. The District Inspector of Schools vide order dated 11.9.2007 issued a show cause notice under section 6(3) of Payment of Salaries Act 1971 and followed it up with a reminder on 18.9.2007 evoking no response from the institution. The District Inspector of Schools, yet again issued a second show cause notice dated 23.2.2008 which again was ignored by the institution forcing him to pass an order dated 10.4.2008 under Section 3(3) of the Salaries Act. In pursuance thereof, the petitioner was paid salary for two months, but the institution did not act even then. However, the District Inspector of Schools vide the impugned order dated 23.12.2008 asked the respondent nos. 6 and 7 to appoint the petitioner . Failing to join at any of the institution, the petitioner has preferred this petition under Article 226 of the Constitution. In the counter affidavit filed on behalf of the institution it is pleaded that the petitioner should have been appointed in the institution where his father was teaching as vacancy was available. It is further pleaded that the two vacancies in the institution fall within the promotion quota and the third is for a scheduled caste category, therefore, the petitioner cannot be adjusted in the institution. The District Inspector of Schools in his counter affidavit has justified amendment of the order on the ground that the respondent institution was not allowing him to join and therefore to ensure regular payment of salary, the order was passed. Before the Court proceeds to examine the contentions of the parties, it would be appropriate to consider the history and object behind compassionate appointment. Compassion has been one of the most cherished and outstanding traits of human beings which is not confined to any one religion, be it Hinduism; Christianity or Islam. This gift of God has travelled from times immemorial to the present days. Apostle of Peace, that Mahatma Gandhi was, mixed it with non- violence to tremendous effect. Indians are masters of it. In our society, by and large, a pair of working hands tends to the needs of several dependants in his family. Its abrupt removal from the scene, leads to untold suffering of those left behind when this sole bread winner dies in harness plunging the dependants and the family in severe financial penury. Our welfare State through the Government is the largest employer which faced such situations when their employees left their dependants in midstream. The people governing the State found another manifestation of the virtue of compassion in human beings by finding an answer in it to help such people. It enacted U.P. Recruitment of Dependants of Dying in Harness Rules, 1974 (here-in-after referred to as 1974 Rules) by carving out an exception to the normal rules of recruitment and loosening its rigours to give employment to a qualified member of such deceased employee who was the sole bread winner to enable them to tide over the sudden financial crises that befalls the family at his death. Private colleges and institutions in the State which thrive on aid being provided by the Government to enable them to pay reasonable salaries to their employees were beyond the purview of the 1974 Rules as its employees were not Government servants. However, otherwise these institutions also have a large workforce but the Government had no say in appointment to class III and IV posts. In order to alleviate the penury of such dependants, Secondary Education Board vide its notification dated 30.7.1992, as amended, introduced Regulations 101 to 107 in Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921. The soul and the object of these Regulations were akin to that of 1974 rules. It would be useful to quote the aforesaid Regulations:- "101. Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non- teaching post of any recognized aided institution: Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector. 102. Information regarding vacancy as a result of retirement of any employee holding a non-teaching post in any recognized, aided institution shall be given before three months of his date of retirement and information about any vacancy falling due to death, resignation or for any other reasons shall be intimated to the Inspector by the appointing authority within seven days of the date of such occurrence. 103. Notwithstanding anything contained in these regulations, where any teacher or employee of ministerial grade of any recognized, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less than eighteen years in age, can be appointed on the post of teacher in trained graduate grade or on any ministerial posts, if he possess prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment: Provided that anything contained in this regulation would not apply to any recognized aided institution established and administered by any minority class. 104. Management of any recognized, aided institution within seven days of the date of death shall present a report to the Inspector about the members of the family of deceased employee, in which particulars of name of the deceased employee, post held, pay scale, date of appointment, date of death, name of the appointing institution and names of his family members, their academic and training eligibilities, if any, and age shall also be given. Inspector shall make entries of particulars of the deceased in the register maintained by himself. 105. Any member of the family of the deceased employee referred to in Regulation 103 shall apply to the Inspector for appointment as teacher in any trained graduate grade or in any clerical grade, as the case may be. Application would be considered by the Committee and if the Committee recommends his appointment, the Inspector shall send the application to the Management Committee of that recognised, aided institution in which the applicant is to be appointed to issue the appointment letter as per Regulations 106 and 107. The following shall be included in the Committee- 1.Inspector __ Chairman
(2.) ACCOUNTS Officer in D.I.O.S. Office __ Member District Basic Education Officer. __ Member 106. Appointment of the member of the family of the deceased employee as per his academic eligibilities shall be done in trained graduate grade or on any clerical post so far as possible in that institution in which the deceased employee was in service. If there is no vacancy in trained graduate grade for teacher or in ministerial cadre in such institution, he shall be appointed in any other recognised, aided institution of the district where such vacancy lies: Provided that if for the time being no vacancy exists in any recognised, aided institution of the district then in the institution where deceased was serving at the time of his death, appointment against any surplus post of teacher in trained graduate grade or clerical post of class four shall immediately be made. Such surplus post shall be deemed to be created for this purpose and shall be continued until any vacancy in that institution or in any other recognised, aided institution of the district is available and in this case service rendered by such surplus post holder shall be counted for the purpose of pay fixation and retirement benefits. 107. Management of the recognised aided institution to which application is sent by Inspector for issuance of appointment letter, shall issue appointment letter informing the Inspector within a period of one months from the date of receipt of the application." A perusal of the aforesaid Regulations discloses a scheme by which compassion is writ large where information of death together with the particulars of the dependants, family members of the deceased employee has to be forwarded to the Inspector within seven days and the Inspector is obliged to refer it to the committee to consider the recommendation of appointment to any of the institution in the district and it goes to the extent of creating a deemed supernumerary post in case no vacancy is available and the management of such institution is obliged to issue an appointment letter within one month from the date of receipt and it has no other option under the Regulations. Similarly, a claimant of compassionate appointment also does not have any option or choice except to join at the institution so recommended by the committee and forwarded by the Inspector. The respondent institution does not appear to have challenged either the resolution of the appointment committee or the recommendation of the Inspector made to it for the petitioner's appointment on 8.8.2007, 11.9.2007 and 23.2.2008 or even the order of single operation dated 10.4.2008 by which the salary for couple of months was paid to the petitioner from the account of the institution. Though it is pleaded by the institution that a class IV post was lying vacant since 2005 in Public Inter College and another class III post became vacant due to death of the incumbent, no details have been given and they are merely bald statements. However, it is pleaded that though one post fell vacant on 30.11.2005 and another in January, 2006 but, an objection is now being raised that both falls within 50% quota of promotion and is being claimed by its two class IV employees Sri Hazari Lal and Sri Sanjai Kumar Kushwaha. Apart from annexing their alleged claim, the institution has conveniently not given the details to support its claim that the two posts fall within the promotion quota. It has also not disclosed the details as to how many class III posts have been filled by promotion and by whom. To the contrary, it is apparent from the counter affidavit that only one post appears to have been filled by direct recruitment and therefore it is clear that one post was and is still lying vacant for direct recruitment. The institution is also silent as to whether any of the two claimants of promotion held the necessary qualification for being promoted and further whether any steps till date has been taken by the Management in regard to any of the aforesaid two claimants. It appears that this objection has only been taken to defeat the legal orders passed by the authorities and the petitioner's claim. Assuming that there is some force in the claim of promotion of the two employees, it is not denied that a third post is also available and in view of the decision of this Court rendered in the case of Committee of Management of Gandhi Inter College Vs. District Inspector of Schools [2004 (1) U.P.L.B.E.C. 979], rules of reservation in direct appointment would not apply to a compassionate appointee. The respondent institution has been able to avoid appointing the petitioner without taking any legal steps before any court of law and thereby is thwarting the very object of compassionate appointment where the petitioner has been left in the lurch for more than one and half years of sufferance. The Apex Court in Smt. Sushma Gosain Vs. Union of India and others [AIR 1989 S.C. 1976], about two decades ago had cautioned, that "it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." From the scheme disclosed in the aforesaid quoted regulations, it is clear that at the district level committee consisting of District Inspector of Schools, Account Officer in the office of D.I.O.S. and District Basic Shiksha Adhikari has been formed to overlook compassionate appointment in the schools of the district. There is nothing on record to show that the said committee did not consider the fact as to whether the post on which the petitioner was sought to be appointed in the institution, was available for direct recruitment. In any case, assuming whatever has been said by the institution to be correct, one post was existing for direct recruitment even at the time when the recommendation was made. Otherwise also all official acts are presumed to be true unless demonstrated to be otherwise but in the present case the institution has woefully failed to discharge that burden. As already noted above, the recommendation of the Committee for compassionate appointment is final and neither the Committee nor the institution have any say in it except to challenge it before any court of law. Admittedly, the institution did not challenge the recommendation for about two years. The reasons given by the State respondent for amending the recommendation is not convincing. If an institution is permitted to thwart legal orders for compassionate appointment forcing the authorities to modify it, that would be giving license to them to intervene in such recommendation/appointment which otherwise they do not have under the regulation. Such an institution may delay the appointment for years together, as in the present case, leaving the recommendee to suffer in penury which would again be against the very object of compassionate appointment. There may also be cases where due to financial reasons, the recommendee may not be able to approach the Court seeking implementation of the recommendation. Therefore, in the opinion of the Court, it has to be held that in all such cases the institution is bound to comply with the recommendation forthwith not later than a month or challenge it before the appropriate Court otherwise it would be obligatory upon the Educational Authorities to immediately appoint an Authorized Controller for execution of its recommendation within the next month failing which they may be open to disciplinary proceedings. For the reasons above, this petition succeeds and is allowed and the impugned order dated 23.12.2008 is hereby quashed. The respondent nos. 4 and 5 are directed to forthwith issue appointment letter to the petitioner within two weeks and submit his salary bills in accordance to law. In the circumstances of the case, since the petitioner has been forced to litigate by the Management, he would be entitled to costs, which quantified at Rs.10,000/- to be paid by the Management within a month failing which it would be recovered as arrears of land revenue by Collector, Allahabad and paid to the petitioner within further period of a month.;