Back
2010 Supreme(All) 3847
[2011(1) ADJ 366 (DB)]
ALLAHABAD HIGH COURT
BEFORE : SUNIL AMBWANI AND KASHI NATH PANDEY, JJ.
JAI RAM YADAV ….Appellant
Versus
STATE OF U.P. AND OTHERS ….Respondents
(Special Appeal No. 1734 of 2010, decided on 28th October, 2010)
Counsel :
K.N. Tripathi, Neeraj Tripathi for the Appellant; Ashok Khare, V.K. Singh, Rakesh Chand Tiwari, A.K. Shukla, C.S.C. for the Respondents.
Headnote:U.P. Intermediate Education Act, 1921—Chapter III—Regulations 101 to 107—Appointment—Class III and IV posts—Effect of change in category of compassionate appointment—Selection Committee selected the appellant on post of Asstt. Clerk—Before approval to that granted, claim of respondent No. 5 for compassionate appointed considered—Consequently, post of Asstt. Clerk for which petitioner-appellant was selected and matter of approval was pending, was directed to be filled up—Challenge against—Discretion to offer compassionate appointment has to be exercised on rational basis—Not open to DIOS to modify the offer on the ground that the dependent possesses a higher qualification and was entitled to a higher post—DIOS on his own could not have changed the category of appointment from Class IV to Class III—Meanwhile DIOS had given consent to fill up the vacant Class III posts by direct appointment—DIOS had no authority to change category of employment of respondent No. 5 on his own—DIOS directed to consider the matter of approval of appointment of appellant independent of right of respondent No. 5—Impugned order set aside. [Paras 10 to 12]
By the Court.—Shri K.N. Tripathi, Sr. Advocate assisted by Shri Neeraj Tripathi appears for the petitioner. Learned Standing Counsel appears for the State respondents. Shri Ashok Khare, Sr. Advocate assisted by Shri V.K. Singh appears for respondent No. 5. With the consent of the parties, we have finally heard the special appeal.
2. The petitioner appeared in the selections for the vacant sanctioned post of Asstt. clerk in Janta Inter College, Nagra, Distt. Ballia, after the Committee of Management had requested for prior approval of the District Inspector of Schools to fill up the posts on 1.3.2008 and the District Inspector of Schools gave permission on 29.1.2008. The vacancy on the post was advertised in daily newspapers. The Selection Committee selected the petitioner for appointment on the post reserved for Other Backward Class person. Before the District Inspector of schools could grant approval for appointment in accordance with the scheme of appointment of Class-III and IV employees under Regulation 101 to 107, under Chapter III of the Regulations made under the U.P. Intermediate Education Act, 1921, the claim of the respondent No. 5 Shri Santosh Kumar Singh for compassionate appointment was considered by the Court and a direction was issued to the District Inspector of Schools to look into his grievance. He was claiming compassionate appointment on an application made by her mother, on the death of father on 24.5.2007 serving as a Lecturer in the college.
3. The District Inspector of Schools by his order dated 9.8.2008 signed on 8.8.2008 passed in pursuance to the directions issued by this Court on 13.12.2007 in Writ Petition No. 61157 of 2007 modified his oder dated 22.10.2007 to the effect that instead of the offer of Class-IV appointment, which was considered by the Committee constituted under Regulation 105, and for which letter of appointment was issued to Shri Santosh Kumar Singh on compassionate grounds on 1.10.2007, since he was intermediate, he was directed to be appointed as a clerk. Consequently the post of Asstt. Clerk for which the petitioner-appellant was selected and the matter of approval was pending, was directed to be filled up.
4. The petitioner appellant filed the writ petition challenging the order of the District Inspector of Schools dated 9.8.2008 on the ground, that Shri Santosh Kumar Singh-respondent No. 5 was given compassionate appointment by the District Inspector of Schools in pursuance to the Regulations 102, 104, 105 and 106; he did not choose to accept the appointment as Class-IV employee and relied upon application given by her mother on 10.8.2007 for his appointment as clerk commensurate with her qualification.
5. Learned Single Judge found that in pursuance to the directions issued by the Court the District Inspector of Schools rightly proceeded to pass the impugned order and since prior approval as required under the Regulations was not given to the appointment of petitioner-appellant, he does not have right to object to the modification of the impugned order dated 22.12.2007 by the District Inspector of Schools and the offer to appoint Shri Santosh Kumar Singh-respondent No. 5 on the vacant post of Asstt. Clerk. The writ petition was dismissed, giving rise to this intra-Court appeal under Chapter VIII Rule 5 of the Rules of the Court.
6. Shri K.N. Tripathi, learned counsel for the petitioner appellant submits that the rules of appointment of Class-III and IV employee contained in Regulation 104 to 107 include Rules of compassionate appointment in Regulation 103, 104, 105 and 106. On the death of the employee in harness, any dependent family member, can be considered for compassionate appointment on the vacancy. Under Rule 105 the application has to be considered by a Committee consisting of District Inspector of Schools as Chairman and Accounts Officer in the office of the District Inspector of Schools, and the District Basic Education Officer as members of the committee. T
