Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 275 of 2018 Appellant :- Brijesh Gopal Khalifa Respondent :- C/M Sri Bhar Shiv Mangla Vidyalya Badi Gaibi Varanasu Counsel for Appellant :- Rajesh Kumar Singh Counsel for Respondent :- Sanjay Kumar Singh Kushwaha,C.S.C.,Nisheeth Yadav
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
Ref:- Civil Misc. Delay Condonation Application No.1 of 2018 Heard learned counsel for the applicant and Sri Nisheeth Yadav, learned counsel for the respondent No.5, Sri Sanjay Kumar Kushwaha, learned counsel for the respondent Nos. 1 and 2 and learned Standing Counsel for the respondent Nos. 3 and 4.
The delay has been sufficiently explained.
The delay is condoned. The delay condonation application is allowed.
The appeal shall be treated to be within time. Office shall allot a regular number to the appeal.
Order Date :- 29.10.2018 Atmesh
Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 275 of 2018 Appellant :- Brijesh Gopal Khalifa Respondent :- C/M Sri Bhar Shiv Mangla Vidyalya Badi Gaibi Varanasu Counsel for Appellant :- Rajesh Kumar Singh Counsel for Respondent :- Sanjay Kumar Singh Kushwaha,C.S.C.,Nisheeth Yadav
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
This appeal questions the correctness of the impugned judgment dated 29th March, 2018, whereby the learned Single Judge has allowed the writ petition filed by the respondent No.1- Committee of Management on the ground that the order dated 13th March, 2018 passed by the District Basic Education Officer, Varanasi, was clearly in violation of the directions issued by the Division Bench of this Court in the judgment dated 29th August, 2016.
We have considered the same and we find no reason to differ from the view taken by the learned Single Judge.
It may be mentioned herein that after having notice, Division Bench of this Court on 1st October, 2018 passed the following interim order in the present appeal :-
"Learned counsel appearing on behalf of District Basic Education Officer, Varanasi submits that in pursuance to the order passed by this Court on 13.09.2018 the appellant has been permitted to continue at Sri Bhar Shiv Mangla Vidyalaya, Badi Gaibi, Varanasi and the issue with regard to payment of salary is under active consideration.
Having considered the statement made by learned counsel appearing on behalf of the District Basic Education Officer, Varanasi, we deem it appropriate to direct the District Basic Education Officer to pass appropriate order to appoint the appellant on compassionate grounds in accordance with rules with any institution except Sri Bhar Shiv Mangla Vidyalaya, Badi Gaibi, Varanasi within a period of two weeks from today and further to ensure the payment of salary within the period interregnum.
Let this appeal be listed on 29.10.2018 in additional cause list."
Today, Sri Nisheeth Yadav, learned counsel for the respondent No.5 has produced a copy of the order dated 25th October, 2018, whereby the appellant has been appointed and placed in Ramakant Seva Sansthan Madhyamik Kanya Vidyalaya, Ramakant Nagar, Varanasi against the vacant post of clerk in compliance of the directions dated 1st October, 2018.
The background of the dispute appears to be that the appellant had earlier also been placed in the same institution vide order dated 25th July, 2016 passed by the District Basic Education Officer. The dispute was raised by the said institution, namely, Ramakant Seva Sansthan (supra) by filing writ petition No. 37201 of 2016 in which an interim order was passed on 10th August, 2016 which extracted hereinunder:-
"The fourth respondent had sought compassionate appointment permissible under Government Order dated 31.01.1997. It appears that the matter in respect of compassionate appointment was referred to the Committee, constituted under the said Government Order, and, thereafter, on the recommendation of the Committee, the Basic Shiksha Adhikari, Varanasi, by order dated 14.07.2015, appointed the fourth respondent as clerk in Shiv Karan Singh Gautam Junior High School, Bhadaini, Varanasi. It appears that, thereafter, by the impugned order dated 25.07.2016, the Basic Shiksha Adhikari, Varanasi has altered the earlier order dated 14.07.2015 and has directed appointment/posting of the fourth respondent in the institution of the petitioners which is known as Ramakant Seva Sansthan Madhyamik Kanya Vidhyalay, Varanasi.
The grievance of the petitioners is that since the appointment of the fourth respondent was recommended by the Committee in another institution, the Basic Shiksha Adhikari, Varanasi had no jurisdiction to place the fourth respondent in the institution of the petitioners. It has, however, not been disputed that there is a vacancy on the post of clerk in the institution for which an effort was made by the petitioners to initially fill up the post but, as there were certain lacuna in the proposed advertisement, the permission to fill the post was rejected vide order dated 14.07.2016.
The question that arises for consideration in the present petition is whether the Basic Shiksha Adhikari, Varanasi had jurisdiction to appoint/post the fourth respondent in another institution than the one for which he was recommended for by the Committee which has been constituted under the Government Order dated 31.01.1997.
The contention of the learned counsel for the petitioners is that the District Basic Education Officer had no jurisdiction to alter the earlier order dated 14.07.2015 whereas the contention of the learned counsel for the respondents is that a conspectus of the provisions of the Government Order dated 31.01.1997 would go to show that compassionate appointment can be made in any institution and it is not limited only to one institution.
Attention of the Court has been invited to clause 1 of the Government Order dated 31.01.1997 so as to demonstrate that appointment can be made in any institution. The respondents have also invited the attention of the Court to clause 8 of the Government Order dated 31.01.1997 which discloses that if no post is available in the institution where the deceased employee was posted, then his dependent can be appointed in any other institution. It has thus been submitted that the appointment is not limited to any particular institution and the consideration of the Committee while proposing the appointment of a person is not in respect of an institution but in respect of the candidature of the appointee as to whether he is otherwise eligible for such appointment or not.
The matter requires consideration.
Learned Standing Counsel has accepted notice on behalf of respondents 1 and 2; Sri Nisheeth Yadav has accepted notice on behalf of respondent no.3; and Sri K.S. Kushwaha has accepted notice on behalf of respondent no.4. They pray for and are allowed four weeks time to file their respective counter-affidavits. Two weeks, thereafter, shall be for the petitioners to file rejoinder-affidavit.
Let notice be issued to the respondent no.5, returnable by the next date. Steps to serve should be taken within a week.
List this petition on 27th September, 2016. In the meantime, the fourth respondent may be posted in the institution of the petitioner but his appointment shall be subject to the decision of the writ petition."
Against the said impugned order, the said institution through its Committee of Management filed Special Appeal No. 529 of 2016. The appeal as well as the writ petition was finally disposed of on 29th August, 2016 by giving categorical directions that have been recorded in the penultimate paragraph of the said judgment and have also been extracted by the learned Single Judge in the impugned judgment.
In compliance thereof, the appellant had to be appointed in the said institution but it appears that the appellant filed Writ Petition No. 54362 of 2017 wherein an observation was made by the learned Single Judge of this Court directing the District Basic Education Officer, Varanasi to revisit the matter in the light of the Government Order dated 4th September, 2000 for posting the petitioner where there is a vacancy. The District Basic Education Officer, therefore, had to pass an order in compliance thereof.
The District Basic Education Officer, Varanasi, it appears, then passed an order dated 13th March, 2018 which became subject matter of challenge in the writ petition giving rise to the present appeal by the respondent No.1- Committee of Management which is a different institution. The writ petition was allowed by the learned Single clearly recording that the impugned order dated 13th March, 2018 was in violation of the directions given by the Division Bench dated 29th August, 2016.
In the background of the above mentioned facts what we find is that even if the learned Single Judge had issued a direction at the instance of the appellant for revisiting the matter as per the judgment dated 16th November, 2017, there was no occasion for the District Basic Education Officer to have deviated from the priorities as enlisted in the judgment of the Division Bench dated 29th August, 2016. As a matter of fact, the direction for revisiting did not in any way override the directions already issued by the Division Bench of this Court that are binding.
In the wake of the aforesaid fact, the conclusion drawn by us hereinabove that the learned Single Judge while passing the impugned judgment on 29th March, 2018 did not commit any error is reaffirmed. Since, according to the interim direction of this Court on 1st October, 2018, an appointment has already been offered to the appellant in the institution known as Ramakant Seva Sansthan (supra), we see no reason now to interfere with the impugned judgment for this additional fact as well. Consequently, we are not inclined to interfere with the impugned judgment dated 29th March, 2018. However, we make it clear that in the event the District Basic Education Officer fails to ensure the payment of the salary of the appellant, he will be clearly liable for contempt and even otherwise, the institution where the appellant has been appointed shall not create any obstruction as that would amount to violation of the order of the Division Bench of this Court referred to hereinabove.
The appeal stands disposed of with the aforesaid observations.
The appellant shall forthwith join the institution where she has been appointed. A photostat copy of the order of appointment has been handed over to the learned counsel for the appellant in the Court by Sri Nisheeth Yadav.
Order Date :- 29.10.2018 Atmesh