Dismissed

Mohd. Parvez Alam and Others v. State of U.P. and Others

Allahabad HC5 Feb 2019SPLA/854/2007

Case brief

AI extract

What is this about?

This common judgment disposed of three intra-court appeals where appellants, initially appointed on compassionate basis to Class-IV posts, sought higher appointments as Assistant Teachers after acquiring requisite qualifications. The court relied on Supreme Court precedent to deny claims, ruling that the right to compassionate appointment is exhausted upon joining and cannot be re-agitated for a h

What the court decided

AI extract

Mohd. Parvez Alam and Others Vs State of… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 34

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1. Case :- SPECIAL APPEAL No. - 854 of 2007

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Appellant :- Mohd. Parvez Alam And Others Respondent :- State Of U.P. And Others Counsel for Appellant :- Alok Dwivedi,Ashok Khare,Siddharth Khare Counsel for Respondent :- C.S.C.,K. Shahi,Kapil Rathore

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2. Case :- SPECIAL APPEAL No. - 1411 of 2007

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Appellant :- Tej Bahadur Singh Respondent :- State Of U.P. And Another Counsel for Appellant :- Rakesh Kumar Tewari,Kapil Rathore Counsel for Respondent :- C.S.C.,K. Shahi

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3. Case :- SPECIAL APPEAL No. - 157 of 2019

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Appellant :- Ram Shanker Lal Srivastava Respondent :- State Of U.P. And Others Counsel for Appellant :- Alok Dwivedi Counsel for Respondent :- C.S.C.,K. Shahi

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.

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In all these appeals common question of fact and law are involved and, therefore, the same have been heard together and are being decided by this common judgment.

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Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Alok Dwivedi for appellants and learned Standing Counsel for respondents.

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These three intra court appeals under Chapter VIII Rules 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as 'Rules 1952') have arisen from a common judgment dated 15.05.2007 whereby learned Single Judge has dismissed Civil Misc. Writ Petition No.10143 of 2006 connected with Civil Misc. Writ Petition No.59248

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of 2005.

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Facts, in brief, as borne out from record are that appellants in all the aforesaid appeals were given compassionate appointments as Class-IV employees on various dates in 1990, as detailed hereunder :-

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Sl. No.	Name of Appellants	Educational Qualification	Appointment as Class-IV Employee
1	Sri Parvez Alam	High-School (1980) Intermediate (1983)	24.07.1990
2	Sri Navin Chandra Mishra	High-School (1981) Intermediate (1983),B.A. (1985) M.A.(1987)	12.07.1990
3	Sri Kamal Narayan Tripathi	High-School (1983) Intermediate (1988)	30.08.1990
4	Sri Chandra Mauli Tripathi	High-School (1981) Intermediate (1983)	13.07.1990
5	Sri Kamal Kumar Shukla	High-School (1983) Intermediate (1986)	13.07.1990
6	Sri Suresh Kumar Shukla	High-School (1979) Intermediate (1981)	27.08.1990
7	Smt. Anita Shukla	High-School (1977) Intermediate (1983)	03.09.1990
8.	Sri Tej Bahadur Singh	High-School (1973),	06.02.1984

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		Intermediate (1975), B.Com. (1977)
9.	Sri Rama Shankar Lal Srivastava	High-School (1983), Intermediate (1985), B.A.(1988),	02.08.1986
		M.A.(1990)

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It is also evident from record that all appellants possessed qualification of High School and Intermediate except appellant Sri Navin Chandra Misra who possessed higher qualification, but none possessed any training qualification required under Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as 'Rules 1981') for appointment on the post of Assistant Teacher in a Junior Primary School (imparting education to Class-I to V). For appointment to posts of Assistant Teacher in such Schools, qualifications are prescribed in Rule 8 of Rules, 1981, which is reproduced as under :-

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“8. (1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be shown below against each :

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Post	Academic Qualification
(i) Mistress of Nursery School	Certificate of Teaching (Nursery) from a recognized training institution in Uttar Pradesh or any other training qualification recognized by the Government as equivalent thereto.
(ii) Assistant Master and Assistant	A Bachelor's Degree from a University established by law in India or a
Mistress of Junior Basic School	Degree recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Vishist

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Basic Teachers Certificate (B.T.C.) two years BTC Urdu Special Training Course, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognised by the Government as equivalent thereto : Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course.

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(2) The essential qualification of candidates for appointment to a post referred to in sub-clause (iii) and (iv) of clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi, and Urdu shall be as follows :-

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(i) A Bachelor's Degree from a University established by Law in India or a Degree recognised by the Government as equivalent thereto with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects, and

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(ii) Training qualification consisting of a Basic Teacher's certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of teaching or any other training course recognised by the Government as equivalent thereto.

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(3) The minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5 shall be as shown below against each -

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(i) Headmistress of At least five years' teaching

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Nursery School	experience as permanent Mistress of Nursery School
(ii) Headmaster or Headmistress of	At least five years teaching experience as permanent Assistant Mistress or
Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School	Assistant Master of Junior Basic School, Assistant Master or Assistant Mistress of Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School.
(iii) Headmaster or Headmistress for Senior Basic School	At least three years' experience as permanent Headmaster or Headmistress of Junior basic School or permanent Assistant Master or Assistant Mistress of Senior Basic School as the case may be : Provided that if sufficient number of suitable or eligible candidates are not available for promotion to the post mentioned at serial numbers (ii) and (iii) the field of eligibility may be extended by the Board by giving relaxation in theperiod of experience.

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4. The essential qualification of candidates for appointment to the posts referred to in clause (a) and sub-clause (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu language shall be as follows :-

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(i) A Bachelor's Degree from a University established by Law in India or a Degree recognised by the Government as equivalent thereto with Urdu as one of the subjects.

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Note.- A candidate who does not posses the aforesaid qualification in Urdu, shall be eligible for appointment, if he possesses a Master's degree in Urdu.

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(ii) Basic Teacher's Certificate from any of the training centres in Lucknow, Agra, Mawana in district Meerut and

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Sakaldiha in district Chandauli established by the Government for imparting training for teaching Urdu or any other training qualification recognised by the Government as equivalent thereto.

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(5) The essential qualifications of candidates having proficiency in Urdu for appointment to the posts referred to in sub-clause (ii) of clause (a) of Rule 5 for teaching in Urdu medium shall be as follows :-

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(i) A Bachelor's Degree from a University established by Law in India or a Degree recognised by the Government as equivalent thereto. The qualification for proficiency in Urdu will be such as may be prescribed from time to time by the Government.

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(ii) Training Qualification of two years B.T.C. Urdu special training course.”

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It appears that subsequently one of the appellant, Mohd. Parvez Alam, made an application dated 29.04.1997 before Education Authorities concerned to claim that he should have been appointed on the post of Assistant Teacher on compassionate basis in view of judgment of this Court in Rajesh Singh Vs. Director of Education, Allahabad, 1991 (1) UPLBEC 345 .

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Thereupon, Director of Education (Basic) (hereinafter referred to as 'DE(B)') called for a report from District Basic Education Officer, Kanpur Nagar (hereinafter referred to as 'DBEO') who recommended that Mohd. Parvez Alam should have been appointed as Assistant Teacher. After receiving this report, DE(B) accorded his consent and fresh letter of appointment was issued to Mohd. Parvez Alam appointing him on the post of Assistant Teacher. Consequently, Mohd. Parvez Alam was appointed as Assistant Teacher on

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compassionate basis vide appointment letter dated 17.5.1997 after modifying his earlier letter of appointment of 1990.

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Thereafter Education Authorities prepared a note that there were some other candidates similarly placed to Mohd. Parvez Alam and also entitled for similar benefit. Consequently, appointment letters were issued to all appellants appointing them on compassionate basis on the posts of Assistant Teachers, modifying their earlier appointments of Class-IV. Dates of such appointment letters in respect of appellants are as under :-

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Sl. No.	Teacher's Name	Post	Date of Appointment
1	Sri Parvez Alam	Assistant Teacher	19.05.1997
2	Sri Naveen Chandra Mishra	Assistant Teacher	08.09.1997
3	Sri Kamal Narayan Tripathi	Assistant Teacher	10.09.1997
4	Sri Chandra Mauli Tripathi	Assistant Teacher	10.09.1997
5	Sri Kamal Kumar Shukla	Assistant Teacher	13.09.1997
6	Sri Suresh Kumar Shukla	Assistant Teacher	10.09.1997
7	Smt. Anita Shukla	Assistant Teacher	18.09.1997
8	Sri Tej Bahadur Singh	Assistant Teacher	26.09.1997
9	Sri Rama Shankar Lal Srivastava	Assistant Teacher	05.09.1997

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It is also pointed out that respondents appointed some other persons on Class-III posts under orders issued by this Court. Subsequently, respondents found that appellants having already been

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appointed on Class-IV posts, subsequent appointments on the post, of Assistant Teacher amount to double benefit of compassionate appointment which is not permissible in law and consequently, cancelled orders of appointments on the post of Assistant Teachers, issued to appellants.

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Therefore, question up for consideration before us is “whether benefit of compassionate appointment under relevant provisions can further be claimed for being appointed on a higher post, though incumbent was already appointed on a particular post, i.e. on a lesser post on compassionate basis and had joined.”

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Learned Single Judge has answered above question against appellants and dismissed writ petitions holding that once they were appointed on Class-IV posts in 1990, they were not entitled to claim benefit of compassionate appointment on the posts of Assistant Teacher by making subsequent applications or representations.

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This view taken by learned Single Judge is consistent with law laid down by Supreme Court in State of Rajasthan Vs. Umrao Singh, 1994(6) SCC 560 wherein Court has held that once an appointment has been made and the incumbent has joined, right to claim compassionate appointment exhausted on that very date and he cannot be allowed to set up his claim for appointment on a higher status post on compassionate basis and the decision given by High Court of Rajasthan otherwise was reversed by Apex Court. In para 8 of the judgment, Court held:

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"...He was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise.

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Otherwise, it would be a case of "endless compassion" ."

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(emphasis added)

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Again this issue was considered by a Division Bench of this Court in Dinesh Chandra Sharma Vs. District Inspector of Schools, Meerut and others, 2000(4) AWC 3262 . There the legal heir of the deceased employee was given appointment on compassionate basis as Clerk. Subsequently, he became qualified for the post of Assistant Teacher and claimed that he was entitled to be considered for appointment on the said post on compassionate ground. Relying on Umrao Singh (supra) , Court held that once appointment has been made on compassionate ground, the claimant is not entitled to get any other appointment on different post simply because he has now obtained qualification for other post subsequently.

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In Kamlesh Kumar Pandey Vs. State of U.P. and another 2001 (3) UPLBEC 2188 , Sri Pandey was appointed on compassionate basis as a class-IV employee. He accepted appointment and joined service without any objection. Claiming thereafter appointment on a class-III post he approached this Court. Rejecting the claim, it was held:

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"Once having accepted an appointment, may be on Class-IV post under existing situation out of will and volition, the 'chapter' of Dying in Harness is closed. No one should be permitted to re-agitate this matter in future on the basis of change of circumstances in further leaving everything in turmoil and in a state of indecisiveness. It if is permitted, no litigation will ever come to an end." (Para 10)

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Similar is the view taken by another Single Judge in Raghunandan Pandey Vs. District Inspector of Schools, Basti and

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others, 2004(3) AWC 2535 and in para 8 of the judgment the Court said:

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"It is well-settled that appointment on compassionate ground is given only to tide away the sudden financial crisis which the family of the deceased employee faces because of the sudden death of the sole bread earner of the family. Thus, once a member of the family of the deceased employee is given appointment on such ground, which is also accepted by the claimant, the reason for giving such appointment, which is for support to the family of the deceased employee, does not exist thereafter. The appointment under the Dying-inHarness Rules cannot be made an alternate source or mode of appointment."

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In Shyamdhar Mishra Vs. State of U.P., 2006(2) AWC 1415 reiterating the aforesaid view following Umrao Singh (supra), this Court in para 9 of the judgment held:

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"In my view, once the appointment is made on the compassionate ground, the said rule comes to an end and no further appointment could be made under the said Rules. The authority could not, in any manner, reconsider the case of the petitioner or of any other person where an appointment had already been given at some anterior point of time , on compassionate ground under the Dying-inHarness Rules." (emphasis added)

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The same thing has been reiterated in Suresh Prasad Singh Vs. State of U.P. and others, 2006(4) AWC 3718 (para 5).

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Another Division Bench of this Court, following Umrao Singh (supra), in Shardendu Tiwari Vs. State of U.P. & others in Special Appeal 908 of 2006 decided on 22.8.2006 held as under :

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"The submission of learned Standing Counsel that once compassionate appointment is accepted, the right is exhausted and there cannot be any second consideration for the same right is well founded. The judgment of Apex Court in State of Rajasthan (supra) fully support the said submission."

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In Rajesh Mahajan Vs. State of U.P. and others 2014 (2) ADJ 55, this Court said "Once an appointment is made on compassionate basis, the incumbent ceased to have any right to claim further appointment on any other post equivalent or higher status".

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The above view has been followed recently by a Division Bench of this Court in Service Bench No.1187 of 2000 (The State of U.P. and others Vs. Pawan Kumar Sharma and another) , decided on 24.05.2017.

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Learned counsel for appellants has relied upon the judgment in Surya Kant Kadam Vs. State of Karnataka & others, (2002) 9 SCC 445. Question involves therein stands on different facts and we find that aforesaid judgment is not applicable to facts of present appeals.

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In view of the above, we find no error in the judgment passed by learned Single Judge warranting interference in these appeals.

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Dismissed accordingly.

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Interim order, if any, stands vacated.

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Order Date :- 05.02.2019 Anand Sri./-

Mohd. Parvez Alam and Others v. State of U.P. and Others

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Mohd. Parvez Alam and Others v. State of U.P. and Others

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