Petitioner before this Court is the Committee of Management of Seth Basudeo Sahai Inter College, Kannauj. The Committee of Management is aggrieved by the order of the District Inspector of Schools, Kannauj dated 05.08.2011.
Respondent no. 4 was recommended for appointment in the petitioner's institution on compassionate ground under an order dated 09.12.2010. Since the direction so issued was not being complied with, the District Inspector of Schools, after issuing two notices to the Committee of Management, himself proceeded to the institution to ensure the joining of the candidate so recommended and has further issued order dated 05.08.2011 to the Principal of the institution to ensure that the appointed candidate is permitted to work and to sign the attendance register and that there should be no interference in that regard. Hence this petition.
The order of the District Inspector of Schools dated 09.12.2010, appointing the respondent no. 4 in the petitioner's institution on compassionate ground, is not under challenge in this petition. It is, therefore, clear that only the consequential action, which is being taken, is under challenge.
The Hon'ble Supreme Court of India in the case of Government of Maharastra v. Deokar's Distillery, reported in (2003) SCC 669, Barkat Ali v. Badri Narain, reported in AIR 2008 SC 1272 and P. Chithranja Menon v. A. Balakrishnan, reported in AIR 1977 SC 1720 has held that if the basic order is not under challenge, consequential order cannot be subjected to challenge. For this ground alone the writ petition is liable to be dismissed.
Even otherwise this Court may record that Regulation 101 to 106 of Chapter III of the regulations framed under the Intermediate Education Act, 1921 confer a power upon the District Inspector of Schools to appoint on compassionate ground a dependent of a deceased employee against an available vacancy in any institution in the District subject however to the condition that suitable vacancy is not available in the institution where the deceased employee was himself/herself was working.
In the facts of the present case it is not disputed by the petitioner that the mother of respondent no. 4 was employed in a recognized Intermediate College. She expired during harness and that there is no vacancy available in the said institution where she was working qua the post on which the respondent no. 4 has been recommended by the Regional Level Committee for compassionate appointment. The right of compassionate appointment in favour of respondent no. 4 is, therefore, not under cloud.
What is being contended before this Court is that in the petitioner's institution there are five posts of the Clerk duly created, three of them falls within the quota for promotion and two for direct recruitment. It is stated that one post for direct recruitment has already been filled by the compassionate appointee, therefore, second post within the quota for direct recruitment may not be filled by the other compassionate appointment, as it will amount to 100% reservation in favour of compassionate appointees. For the proposition the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Director of Education (Secondary) and another vs. Pushpendra Kumar and others etc. reported in (1998) 2 UPLBEC, 1310. It has been contended that the District Inspector of Schools should not have approached the institution for joining of the employee concerned, he should have proceeded against the management of the institution under the Intermediate Education Act.
At the very outset it may be recorded that power of District Inspector of Schools to appoint a person on compassionate ground, against the vacancy available in the petitioner's institution, under Regulations 101 to 106 of Chapter III of the Regulations framed under the Intermediate Education Act, which is within the quota for direct recruitment, cannot be questioned. Therefore, the recommendation made for appointment of respondent no. 4 in the petitioner's institution on compassionate ground against the vacancy available for direct recruitment is held to be legal and valid.
The conclusion that if the second post within the quota for direct recruitment is filled by compassionate appointment, it would amount to 100% reservation is concerned, this Court finds that the provisions of Regulations 101 to 106 of Chapter-III of the Regulations framed under the Intermediate Education Act do not carve out any such prohibition. The statutory provisions have not been challenged in this petition.
So far as the insistence of the District Inspector of Schools to ensure joining of the compassionate appointee is concerned, this Court is of the considered opinion that the District Inspector of Schools may not have acted strictly in accordance with law even then the action taken is in furtherance of interest of justice and for enforcing lawful orders. Any interference with the order of the District Inspector of Schools will amount to perpetuating an illegal action of the management. Power under Article 226 of the Constitution of India is not to be exercised in favour of the Committee of Management, which want to act illegally and insists that other courses open to law should have been adopted with sole purpose to delay the joining of the lawfully appointed candidate.
In the facts and circumstances of the case, this Court refuses to exercise its discretion under Article 226 of the Constitution of India.
Writ petition is dismissed.
Order Date :- 14.9.2011 Pkb/