1. Heard learned counsel for the petitioner, learned Standing counsel appearing for the State-respondents and Sri Jogendra Nath Verma, learned counsel appearing for the respondents no. 3 and 4.
2. The petitioner being aggrieved with the order of rejection of compassionate appointment as passed by the respondent no. 1 i.e Principal Secretary, Department of Education (Basic), Section 5, U.P.Government, Lucknow, a copy of which is annexure 1 to the petition is before this Court.
3. Learned counsel for the petitioner contends that his father was working as Assistant Teacher when he died in harness on 17.04.1997. At the time of death of his father, the petitioner was a minor, aged about 14 years his date of birth being 15.03.1983. On attaining majority, the petitioner applied for compassionate appointment through his application dated 27.08.2002. The said application was forwarded by the respondent no. 3 to the State Government for the purpose of granting relaxation of time beyond five years as provided under the provisions of Uttar Pradesh Recruitments of Dependents of Government Servant (Dying-in-Harness) Rules, 1974 (hereinafter referred to as "Rules, 1974"). The recommendation dated 08.10.2007, a copy of which is annexure 7 to the petition specifically mentions that the case of the petitioner is being sent for appointment on a Class IV post. After substantial period of time, the respondent no. 1 has passed the impugned order dated 12.07.2013 rejecting the claim of the petitioner along with 751 others primarily on two grounds i.e (a) no substantial reasons are forthcoming as to why the said persons have applied for compassionate appointment after long period of time and (b) after the coming into force of the Right to Education Act, 2009 (hereinafter referred to as "Act, 2009") and the Right to Education Rules, 2011 (hereinafter referred to as "Rules, 2011"), the appointment on the post of Assistant Teacher is not possible.
4. Learned counsel for the petitioner contends that the impugned order rejecting the claim of the petitioner on the aforesaid two grounds is liable to be set aside on the ground that he had never applied for the post of Assistant Teacher rather, as would be apparent from a perusal of the recommendation that has been sent by the respondent no. 3, it clearly comes out that the petitioner had applied for appointment on a Class IV post and consequently the respondent no. 1 patently erred in rejecting the claim for compassionate appointment and for not extending the time period for consideration beyond five years on the aforesaid two grounds which reflects patent non application of mind. It is also contended that by one stroke the respondent no. 1 has proceeded to reject all the cases without going into the merits of the case as set forth by the petitioner and as such on this ground also the impugned order merits to be quashed and set aside.
5. On the other hand, learned counsel for the respondents has contended that as the case of the petitioner was for a period beyond five years, consequently it had to be forwarded to the State Government for grant of relaxation in time limit and apart from the ground of delay, the State Government has also considered the merits of the case and has rejected the claim, consequently there is no error or infirmity in the impugned order.
6. Having heard the learned counsels for the contesting parties and having perused the records it clearly comes out that the petitioner had applied for compassionate appointment on attaining majority on 27.08.2002. The same was duly forwarded by the respondent no. 3 through recommendation dated 08.10.2007 for the purpose of grant of relaxation in time limit beyond the period of five years as contemplated under the Rules, 1974 for appointment on Class IV post. The said recommendation indicates that the petitioner had applied for compassionate appointment on a Class IV post. The respondent no. 1 while considering the said relaxation in time limit has also proceeded to reject the claim of the petitioner for compassionate appointment on the ground that after coming into force of the Act, 2009 and the Rules, 2011, the appointment on the post of Assistant Teacher is not permissible. The said order reflects patent non application of mind inasmuch as once the petitioner had applied for a Class IV post and a recommendation has also been sent by the respondent no. 3 for relaxation in time limit for appointment on Class IV post, accordingly there was no occasion for the respondent no. 1 to reject the case of the petitioner considering the provisions of the Act, 2009 and Rules, 2011 for the post of Assistant Teacher. In this view of the matter, the impugned order dated 12.07.2013 is clearly unsustainable in the eyes of law.
7. Accordingly, keeping in view the aforesaid discussions, the writ petition is partly allowed. A writ of certiorari is issued quashing the order dated 12.07.2013, a copy of which is annexure 1 to the petition so far as it pertains to the petitioner. A writ of Mandamus is issued directing the respondent no. 1 to consider the case of the petitioner for grant of relaxation of time limit for Class IV post in terms of the recommendation dated 08.10.2007 sent by the respondent no. 3 within a period of three months from the date of receipt of a certified copy of this order strictly in accordance with the rules and the merits of the claim of the petitioner.
Order Date :- 26.7.2019 Pachhere/-
(Abdul Moin, J)