Heard learned counsel for the petitioner and learned Standing Counsel for the State and perused the record.
The brief facts giving rise to the writ petition are discussed hereinafter. Jain Vidya Mandir Inter College (in short 'the College') is a recognized college where the education is imparted up to the level of Intermediate classes. Petitioner's father was Lecturer in the college. Unfortunately, he died on 21.11.1998. The Government Order dated 02.02.1995 provides that a person qualified may be appointed as Assistant Teacher on compassionate ground. In pursuance thereof, the petitioner submitted an application on 05.12.1998 to the District Inspector of Schools, Bijnor, for his appointment on compassionate ground. The District Inspector of Schools has recommended the petitioners' appointment as Assistant Teacher in JVM Inter College on compassionate ground. Since he fulfilled the terms and conditions of the Government Order dated 02.02.1995 the DIOS has approved the recommendation of the Committee for the appointment of the petitioner as Assistant Teacher on 06.01.1999 (a copy of which is Annexure-1 to the writ petition). After getting approval from the District Inspector of Schools dated 06.01.1999 the authorized Controller of the Institution issued the appointment letter to the petitioner on 15.02.1999 as Assistant Teacher, a copy of which has been filed as Annexure -2 to the writ petition. The petitioner joined his service on 16.02.1999, a copy of which has been filed as Annexure- 3 to the writ petition.
The petitioner relied on a decision of this Court reported in 1998 (2) UPLBEC 1393 Sanjeev Kumar Dubey vs. District Inspector of Schools, Etawah and others, in which the court has held that no person can be appointed as Assistant Teacher on the compassionate ground and struck down the Government Order dated 02.02.1995. The operative portion of the judgment in case of Sanjeev Kumar Dubey is follows as under:-
"Para-13. In the circumstances, I am of the opinion that the Government Order dated 02.02.1995 as well as the proviso to Section 16 (2) of the U.P. Secondary Education Services Selection Boards Act, 1982, are ultra vires. Hence the petitioner cannot be appointed as a teacher under the Dying-in-Harness Rules. In my opinion, no appointment to the post of a teacher can be made under the Dying-in-Harness Rules and any rule which permits this is unconstitutional. Merely because a person's father was a teacher does not entitle the son to get appointment as a teacher under the Dying-in-Harness Rules. However, I direct that the petitioner shall be offered a job as Class-III employee within a month of the production of the certified copy of this order before respo9ndent No. 1".
In compliance of the aforesaid judgment, the Government had issued another order dated 08.01.1999, copy of which has been filed as Annexure-6 to the writ petition, providing therein that no person can be appointed as Assistant Teacher. On the basis of the said Government Order, the petitioner's appointment as Assistant Teacher was cancelled by order dated 11.03.1999 and by the same order he was appointed as a clerk in another institution, namely, S.N.S.M. Inter College, Nehtaur. In the meantime, against the judgment of the Hon'ble Single Judge, a Special Appeal was preferred, which was allowed by Division Bench of this Court by judgment and order dated 01.02.2000. The case has been reported in 2000 (1) UPLBEC 634 Sanjeev Kumar Dubey vs. District Inspector of Schools, Etawah and others. The Division Bench while allowing the appeal held as under:-
"Para 16- As a result of foregoing discussions, the Special Appeals and the Writ Petition are disposed of the followed manner:
(1) Special Appeal No. 426 of 1998 is allowed. The order of the learned Single Judge is set aside. The matter is remitted to the appropriate Single Judge Bench for decision afresh in accordance with law and in the light of the observations made in this judgment, (2) Special Appeal No. 510 of 1998 succeeds and is allowed. The impugned order passed by the learned Single Judge is set aside. The matter is remitted to the appropriate Single Judge Bench for decision of the writ petition afresh in accordance with law and in the light of this judgments; and (3) Writ Petition No. 35079 of 1999 is disposed of with the directions that in case the petitioner stakes his claim for compassionate appointment as Assistant Teacher, his case will be considered by the Selection Committee referred to in Regulation 105 of Chapter III of the Regulations made in the U.P. Intermediate Education Act, 1921 and the Notification dated 2-2-95."
Thus, the Division Bench had set aside the order passed by Hon'ble Single Judge holding that the case of the petitioner of the said writ petition shall be considered on the compassionate ground as Assistant Teacher, in terms of Regulation 105 of Chapter III of the Regulations made in the U.P. Intermediate Education Act, 1921. In pursuance of the Division Bench judgment, the State Government again issued a Government Order dated 15.07.2000, reviving the order dated 02.02.1995.
In consequence thereof, the petitioner claimed for reconsideration of his appointment on the post of Assistant Teacher. In pursuance of the judgment, the petitioner's case was reconsidered and he was appointed as Assistant Teacher on 20.12.2000. On 21.03. 2001 the Director of Education declined to pay his salary. In consequence thereof the petitioner filed a Writ Petition No. 25439 of 2011 in this Court, which was decided finally by order dated 16.07.2001 setting aside the impugned order dated 21.03.2011 and directing the respondent to pass a fresh order after giving opportunity of hearing to the petitioner.
Learned counsel for the petitioner submitted that the petitioner was entitled for consequential benefits on the basis of Division Bench judgment in the case of Sanjeev Kumar Dubey (supra), whereby the Division Bench had allowed the claim of the petitioner set up in the said writ petition while setting aside the order passed by Single Judge judgment and submitted that it is not a case of fresh consideration for appointment of compassionate ground.
Learned Standing Counsel, on the other hand, submitted that the petitioner was appointed as clerk and he was not entitled to post of Assistant Teacher. However, the petitioner's appointment as Assistant Teacher in the year 1999 has not been disputed. It is further submitted that from the record it appears that the appointment on the post of clerk to the petitioner has not been denied. Subsequently, there is no option but to believe the same contention.
The question involved is that whether the petitioner shall be entitled for benefit of the Division Bench judgment. It has been submitted that the subsequent Government Order dated 08.01.1999 was issued in pursuance of the judgment passed by Hon'ble Sigle Judge, providing therein that no appointment can be made on the post of Assistant Teacher. Later on, in the Special Appeal, the Single Judge judgment was set aside, thereafter, the Government had issued another Government Order dated 15.07.2000 and it was made clear that the appointment of Assistant Teacher can be done. The judgment of Single Judge has been set aside in Spl. Appeal. The State Government issued another Government Order reverting to the previous position. The petitioner was deprived of the appointment to the post of Assistant Teacher merely on the ground of Single Judge judgment referred 2000 (1) UPLBEC 634 Sanjeev Kumar Dubey vs. District Inspector of Schools, Etawah and others (supra). In view ofthe above, since the Single Judge judgment was set aside in Special Appeal without injury being caused to the petitioner directing that the petitioner shall be entitled to be restored back to the position which he was holding prior to the judgment delivered by Hon'ble Single Judge of this Court. Petitioner seems to be entitled to some benefit. It is not a case that another chance was given to the petitioner for appointment on compassionate ground, but whether injury caused to the petitioner by the judgment delivered by Hon'ble Single Judge (supra) required to be corrected in view of subsequent judgment delivered in special appeal? The finding recorded by the Director seems to be an act of non-application of mind to the facts and circumstances of the present case. The impugned order passed by the Director while rejecting petitioner's claim suffers from illegality and is not liable to survive. The petitioner is entitled to the payment of salary of the post of Assistant Teacher from the date of appointment letter dated 20.12.2000 with all consequential benefits.
Accordingly, the writ petition is allowed.
A writ in the nature of certiorari is issued quashing the impugned order dated 30.10.2011 (Annexure 15 to the writ petition) passed by respondent No.1 with all consequential benefits, directing the respondents concerned to look into the matter and take a decision keeping in view the observation made in this judgment, by passing a speaking and reasoned order expeditiously, say, within a period of two months from the date of receipt of a certified copy of this order. The decision so taken shall be communicated to the petitioner.
Writ petition is allowed. No order as to costs.
Order Date :- 12.5.2011/v.k.updh.