SAURABH KUMAR Vs. STATE OF U P

JUDGEMENT

(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