MOHAMMAD NASEEM AKHTAR Vs. STATE OF U.P

JUDGEMENT

(1.) Madarsa Arbiya Ahlesunnat Bahrul Oloom, Mohalla Ansar Tola, Khaleelabad, Sant Kabir Nagar; for short "the Institution" is a recognised and aided institution that is in receipt of grant-in-aid from the State Government. Salaries to its teachers and employees are borne on the State exchequer. The petitioner's father, Abdul Wahab, was an Assistant Teacher in the Primary Sec. of the Institution. The Primary Sec. of the Institution is referred to as Tahtaniya. He died in harness on 30/7/2014, as the petitioner asserts. There is some dispute about the fact whether he died in harness on 30/7/2014 or out of harness, but this Court need not go into that question, considering the short point on which we propose to decide this petition. The petitioner claims that he is qualified to be appointed on compassionate basis, as his father died in harness. To claim the said right, the petitioner moved an application to the Registrar/Nirikshak, U.P. Madarsa Shiksha Parishad, Lucknow on 11/3/2019, with a request that he may be appointed on the post of Assistant Teacher on compassionate grounds. The petitioner appears to have been permitted to teach in the Institution by the Management, but in the absence of financial approval, he is not being paid his salary from the State exchequer. The petitioner claims right to be appointed on compassionate basis, relying on Rule 10(2) of the U.P. Ashasakiya Arabi aur Farsi Madarsa Manyata aur Prashashan aur Sewa Vinimayawali, 2016(for short "the Rules of 2016"). The aforesaid Rules have been framed under Sec. 24 of U.P. Board of Madarsa Education Act, 2004. The Rules of 2016 are, no doubt, statutory in character and have come into force w.e.f. 22/7/2016, when these were notified in the official gazette.

(2.) The moot point for consideration in this petition is : Whether the fact that the petitioner's father, who was a teacher in the Institution and died before the enforcement of Rules of 2016, would confer upon the petitioner a right to be considered for compassionate appointment under the aforesaid Rules?

(3.) Mr. Sajjad Husain, learned Counsel for the petitioner, submits that the Rules of 2016 are retrospective in operation, in the sense that where an employee, whose dependent seeks benefit of compassionate appointment, has died before the enforcement of the said Rules, the right under the Rules of 2016 would be available to him, provided he applies within five years of the death of the deceased employee. In support of his contention, Mr. Husain has placed reliance upon a decision of this Court in Mohd. Ayza Ahmad v. State of U.P. and Others; 2018 (4) ADJ 243 (LB). In Mohd. Ayza Ahmad (supra) it has been held: