JUDGMENT

Irshad Ali, J.

Heard Anas Sherwani, learned Advocate holding brief of Shri. Amrendra Nath Tripathi, learned counsel for the petitioner and Shri. Rahul Shukla, learned counsel for the respondent no.1.

2. None has put in appearance for the respondent no.2 in spite of notice issued to the respondent no.2.

3. By means of the present writ petition, the petitioner has prayed for issuance of a writ in the nature of Certiorari quashing the impugned order dated 21.9.2007 (Annexure-9 to the writ petition) with further prayer to issue a writ in the nature of Mandamus commanding the respondents to consider the petitioner's claim and give appointment on compassionate grounds on Class IV post.

4. Factual matrix of the case is that father of the petitioner died while in service working on the post of Assistant Teacher in the School. At the time of death of the father of the petitioner he was getting scale of trained teacher. The petitioner is fully dependent on his father. The petitioner had completed intermediate education at the time of death of his father and moved application on 9.5.2002 for giving appointment on compassionate grounds. The application of the petitioner was received by the Manager of the School and was duly forwarded to the respondent no.1 where the application was received on 11.9.2002. The petitioner also submitted his application on prescribed format, but nothing was done by the District Basic Education Officer on his application.

When the respondents did not consider the claim of the petitioner for appointment on compassionate grounds, the petitioner filed a writ petition bearing Writ Petition No.1432 (SS) of 2007 before this Court. Vide order dated 21.3.2007 this Court directed the respondent no.1 to pass an order for appointment on compassionate grounds. The petitioner, due to non-compliance of the said order, filed Contempt Petition No.1869 of 2007 in which notice was issued to District Basic Education Officer (respondent no.1) fixing 24.9.2007. The District Basic Education Officer has now passed an order on 21.9.2007 whereby the claim of the petitioner has been rejected on the ground that the institution in question was brought within purview of Payment of Salaries Act, 1978 with effect from 1.12.2006 and the father of the petitioner died on 10.12.2001, therefore the claim of the petitioner cannot be considered for the grant of appointment on compassionate ground.

5. Submission of learned counsel for the petitioner is that the assumption drawn by the District Basic Education Officer is wholly erroneous in nature. The institution is recognized under the provisions of the U.P. Basic Education Act, 1972 and teachers and other employees are granted appointment after due approval of the District Basic Education Officer in the institution. The institution if taken grant-in-aid list, the liability for the payment of salary arose on the shoulder of the State Authority.

6. Learned counsel for the petitioner next submits that the impugned order is wholly illegal and is liable to be quashed by this Court. There is no rider under the U.P. Basic Education Act, 1972 or there is any provision under the Basic Education Act to make appointment on compassionate ground in case the institution is not receiving aid from the State Government. He next submits that the impugned order dated 21.9.2007 is per se illegal and cannot be sustained and therefore, is liable to be set aside.

7. On the other hand, Shri. Rahul Shukla, learned counsel for respondent no.1, in support of the impugned order, submits that the same does not suffer from infirmity or illegality and is just and valid order. He