Court No. - 5
Case :- WRIT - A No. - 5839 of 2020
Petitioner :- Babita Yadav
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Daya Shanker Mani Tripahti,Ashutosh Mani Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J.
1. The petitioner claims to be married daughter of late Shyam Awadh Yadav who was Lecturer in Shri Shankarji Inter College, Patjiva, District Mau which is recognized and aided institution governed by the provisions of UP Intermediate Education Act, 1921 (in short' the Act, 1921') and also UP High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971. The father of petitioner died on 16.10.2012 during service.
2. The petitioner claims to be entitled for consideration for appointment on compassionate ground under Dying-in-Harness Rules. Accordingly, she submitted application for consideration for appointment on compassionate ground. When the application of the petitioner was not considered for compassionate appointment, she approached this Court by filing Writ-A No.50710 of 2014 which was decided by order dated 11.02.2020 with a direction to the District Inspector of Schools, Mau to decide the claim of the petitioner in the light of judgement of the Apex Court in the case of State of U.P. and another Vs. Neha Srivastava (Special Leave to Appeal (C) No.22646 of 2016.
3. By the impugned order dated 21.03.2020, the District Inspector of Schools has rejected the claim of the petitioner for compassionate appointment on the ground that purpose of compassionate appointment is to provide immediate succour to the family of the deceased employee and in the instant case, more than 8 years have passed since the death of deceased employee, therefore, there is no purpose of grant of compassionate appointment to the petitioner.
Second ground of rejection was that the petitioner being married daughter is entitled to compassionate appointment.
4. In the counter affidavit, it is stated that brother of petitioner and his wife are in Government employment and mother of petitioner is also getting family pension, therefore, family of petitioner has sufficient means to survive and, therefore, the petitioner is not entitled for compassionate appointment.
5. Challenging the aforesaid order, learned counsel for the petitioner has submitted that the order impugned is without jurisdiction inasmuch as, as per Regulation 105 of Chapter III of the Regulations framed under the Act, 1921, the power to consider claim for compassionate appointment is conferred upon three member committee consisting of Inspector, Accounts Officer from office of District Inspector of Schools and District Basic Education Officer whereas in the present case, the District Inspector of Schools has not taken decision in rejecting the claim of the petitioner. Thus, the order impugned is not sustainable.
6. Further, submission is that this Court in the case of Smt. Vimla Srivastava Versus State of U.P. and another reported in 2016 (1) ADJ 21 (DB) has held that even married daughter is entitled to be considered for compassionate appointment. The relevant paragraph of the judgement is extracted herein-below:-
"25.During the course of submissions, our attention was also drawn to the judgment rendered by a learned Single Judge of this Court in Mudita vs. State of U.P., 2015 (9) ADJ 16. The learned Single Judge while proceeding to deal with an identical issue of the right of a married daughter to be considered under the Dying-in-Harness Rules observed that a married daughter is a part of the family of her husband and could not therefore be expected to continue to provide for the family of the deceased government servant. The judgment proceeds on the premise that marriage severs all relationships that the daughter may have had with her parents. In any case it shuts out the consideration of the claim of the married daughter without any enquiry on the issue of dependency. In the view that we have taken we are unable to accept or affirm the reasoning of the learned Single Judge and are constrained to hold that Mudita does not lay down the correct position of the law.
26. In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution.
27. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.
28. In consequence, we direct that the claim of the petitioners for compassionate appointment shall be reconsidered. We clarify that the competent authority would be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioners shall not be excluded from consideration only on the ground of their marital status."
7. Learned Standing Counsel contends that the order impugned has been passed after considering financial status of family of petitioner. He further submits that this Court has directed by order dated 11.02.2020 the District Inspector of Schools to decide the claim of the petitioner, accordingly, he submits that the District Inspector of Schools is competent to pass the impugned order.
8. I have heard learned counsel for the petitioner and learned Standing Counsel for respondents.
9. The Regulation 105 of Chapter III of Regulations is reproduced as under:-
“105. िविनिनियम 103 मे िनििदरष्ट मृत कर्मरचारी कर्े कर्ु टु म्ब कर् कर्ोई सदस्य सिन्म्बन्धत िनिरीक्षकर् कर्ो यथािन्स्थित, प्रशिशिक्षिक्षत स्निातकर् श्रेणी मे अध्यापकर् या िशिक्षक्षणेत्तर संविनगर कर्े िकर्सी पद पर िनियिु क्ति कर्े िलिए आविनेदनि कर्रगा। आविनदनिे पत पर सिमित द्वारा िविनचार िकर्या जायेगा और यिद सिमित उसकर्ी िनियिु क्ति कर्ी संस्तुित कर्रे, तो िनिरीक्षकर् मान्यता प्रशाप, सहायता प्रशाप उस संस्था कर्े िजसमे आविनेदकर् कर्ो िनियक्ति िकर्या जानिा है, प्रशबन्ध तन्त कर्ो आविनदनिे -पत िविनिनियम 106 और 107 कर्े अनिुसार िनियिु क्ति आदेशिक्ष जारी कर्रनिे कर्े िलिये भेजेगा।सिमित मे िनिम्नििलििखित होंगे--
1. िनिरीक्षकर्–अघ्यक्ष
2. िजलिा िविनद्यालिय िनिरीक्षकर् कर्े कर्ायारलिय मे लिेखिािधकर्ारी --सदस्य
3. िजलिा बेिसकर् िशिक्षक्षा अिधकर्ारी --सदस्य"
10. The perusal of Regulation 105 reveals that power to recommend for compassionate appointment is vested with three member committee constituted under said Regulation. The District Inspector of Schools does not have power to consider the claim of the petitioner. Accordingly, this Court is of the opinion that the order of the District Inspector of Schools rejecting the claim for compassionate appointment is without jurisdiction and not sustainable. Submission of learned Standing Counsel that since the Court directed the District Inspector of Schools to decide the claim of the petitioner, therefore, the order cannot be said to be without jurisdiction has no substance for the reason that this Court directed the District Inspector of Schools to decide the claim of the petitioner strictly in accordance with law and, therefore, in such circumstances, as the Regulation 105 confers power upon three member committee constituted under Regulation 101 to consider the claim for appointment on compassionate ground, the proper procedure for the District Inspector of Schools to refer the matter to the said committee to consider the claim of the petitioner for appointment on compassionate ground in accordance with law.
11. So far as the ground taken in the impugned order that the petitioner being married daughter is not entitled to compassionate appointment is contrary to the judgement of this Court in the case of Smt. Vimla Srivastava (supra).
12. For the reasons given above, the order impugned is not sustainable and is set aside. The writ petition is allowed and the respondent no.4- District Inspector of Schools, Mau is directed to decide the claim of the petitioner for compassionate appointment by constituting a committee under Regulation 105 of the Regulations framed under the Act, 1921 within a period of two months from the date of copy of the order in accordance with law.
Order Date :- 24.9.2021 SS