RAJESH CHAWLA Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the parties. Mother of the petitioner was Vice Principal in Arya Kanya Inter College, Govind Nagar, Kanpur which is governed by the provisions of U. P. Intermediate Education Act 1921. Salary to the teachers and non-teaching staff of the college is paid under U. P. Payment of Salaries Act 1971 (U. P. Act No. 24 of 1971 ). Mother of the petitioner died in harness on 10. 5. 2001. Petitioner applied for compassionate appointment under Dying in harness Rule as contained under Chapter-3 Regulation 106 of the Regulations framed under the U. P. Intermediate Education Act. Application was filed on 19. 5. 2001 and 21. 5. 2001. In the application appointment was sought against clerical post as petitioner was qualified to be appointed on the said post. The Principal of the College intimated that no post of Class-III was vacant however a post of Class IV was vacant on which petitioner could be appointed. According to the petitioner he was promised that in future whenever post of clerk fell vacant, petitioner would be appointed against the said post. Petitioner gave an application on 8. 6. 2001 to the Principal stating therein that he could be appointed on the Class-III post on supernumerary basis however, as he and his family was passing through hard time and financial crisis hence he was ready to accept Class-IV post. He further requested that in future whenever post of Class III fell vacant he should be appointed against the said post. The Principal on 22. 10. 2001 appointed the petitioner on Class-IV post and sent the information to the District Inspector of Schools. Thereafter post of Clerk fell vacant on 1. 8. 2003 due to retirement of Sarojni Singh the previous Clerk. Petitioner on 7. 9. 2003 filed an application for his absorption/ appointment on the post of Clerk, true copy of which is Annexure-8 to the writ petition. The prayer made in this writ petition is that the respondents i. e. D. I. O. S. , Joint Director of Education, Lekhadhikari and Management of the College may be directed to adjust/appoint the petitioner on the post of clerk in the college in question. Counter affidavit has been filed in which it has been stated that after accepting the compassionate appointment on Class IV post, the incumbent cannot claim promotion or appointment in higher grade. Under the relevant regulation (Chapter-3 Regulation 106) appointment of dependant of an employee dying in harness in an educational institution is to be made on the basis of his educational qualification firstly as teacher in L. T. Grade and, if it not possible then on any non-teaching post as far as possible in the same institution where the deceased employee was working at the time of his death. It is further provided that if in the said institution no post is vacant then the dependant may be appointed in any other recognised aided school/college of the District. The supernumerary appointment is provided only if in the entire district no post is available in any aided and recognised school/college. As only one Class-IV post was available in the institution in question at the time of death of the petitioner's mother hence petitioner could be appointed only on the said post and was in-fact appointed thereupon. There is no question of adjustment or promotion to class III post which fell vacant after about two years of death of petitioner's mother and petitioner's appointment. Question of estoppel is not relevant. Learned counsel for the petitioner has cited an authority report in 2001 (1) U. P. L. B. E. C. 890 - Sudhakar Srivastava vs. Deputy Director of Education (Secondary ). In the said authority it has been held that relevant regulations of Chapter III were made operative since 1991 by virtue of Government order dated 2. 2. 1995 hence even though petitioner was appointed on Class IV post in 1992 still he should be appointed on the post of Assistant Teacher L. T. Grade as he was qualified for the said post. In the said authority reliance has been placed upon Division Bench authority of this court reported in Sanjeev Kumar Dueby vs. D. I. O. S. 2000 (1) ESC 635. However, in the authority of Sudhakar Srivastava it has not been mentioned that as to whether at the time of appointment of the petitioner post of Assistant Teachers were vacant or not. Learned counsel for the petitioner has also supplied uncertified typed copies of two judgments but they relate to appointments in different Government offices. Learned standing counsel has cited the authority reported in Amit Kumar Singh vs. State 2005 (1) UPLBEC 407 it has been held in the said authority that after compassionate appointment on any post the incumbent cannot claim adjustment on higher post as the law does not provide such appointment more than once. Accordingly, there is no merit in the writ petition hence it is dismissed. .