Allowed

C/M, Madarsa Arabia Ahle Sunnat Madinatul Uloom, Sant Kabir Nagar, and Another v. State of U.P. and 3 Others

Allahabad HC9 Apr 2019WRIA/721/2019

Case brief

AI extract

What is this about?

The single-judge bench allowed the writ petition where the petitioner challenged an order directing a competent authority to make a compassionate appointment. The court quashed the order holding that compassionate appointment is an exception to open competition and not a vested right, especially when the regulating rules were enacted after the employee’s death and were strictly prospective.

What did the court decide?

The order dated 21.12.2018 passed by the Registrar/Inspector, U.P. Board of Madarsa Education, Lucknow, was quashed.

C/M, Madarsa Arabia Ahle Sunnat Madinatul Uloom… — Service and Employment | Allahabad HC (2019)

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Court No. - 29 AFR

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Case :- WRIT - A No. - 721 of 2019

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Petitioner :- C/M, Madarsa Arabia Ahle Sunnat Madinatul Uloom, Sant Kabir Nagar, And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Mohammad Ali Ausaf Counsel for Respondent :- C.S.C.,Prabhakar Awasthi,Sami Ullah Khan

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Hon'ble Prakash Padia,J.

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1. Heard Sri Mohammad Ali Ausaf, learned counsel for the petitioners, learned Standing Counsel for respondent Nos.1, 2 and 3 and Sri Prabhakar Awasthi and Sri Sami Ullah Khan learned counsel for respondent No.4.

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2. The petitioners have preferred the present writ petition challenging the order dated 21.12.2018, passed by respondent No.2/Registrar/Inspector, U.P. Board of Madarsa Education Lucknow.

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3. Facts as contained in the writ petition are that the Institution in question namely Madarsa namely Madarsa Arabia Ahle Sunnat Madinatul Uloom, Village Mahadeva, Post Office Nandaur, District Sant Kabir Nagar is a recognized Madarasa imparting education upto Alia Classes, i.e., upto intermediate level. The Madarsa in question is also in the grant in aid list of State Government and all the teachers and other employees are getting their salary through State fund. The service conditions of the teaching and non-teaching employees of the Madarsa in question are governed by the Rules namely U.P. Arabi Tatha Farsi Madarson Ki Manyata Avam Sewa Niyamawali, 1987. Subsequently, U.P. Board of Madarsa Education Act, 2004 (hereinafter referred as Act 2004) had come into existence. In terms of the provisions of the Act, 2004 the State Government has framed a Regulation namely The U.P. Non Governmental Arabic and Persian Madarsa Recognition, Administration and Services Regulation, 2016 (hereinafter referred to as Regulations, 2016). The petitioner No.1 is a duly elected and recognized Committee of

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Management and the petitioner no.2 is a duly elected and recognized Manager of the Institution in question.

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4. One Mr. Asgar Ali father of respondent No.4/Qutubudeen was working in the Institution in question on the post of Assistant Teacher. He died during the course of his service on 17.3.2016. It is contended in paragraph 10 of the writ petition that at the time of death of the father of the respondent No.4, there was no provision under the existing rules governing the field of service conditions for the appointment on compassionate grounds in Arabic Madarsas.

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5. For the first time, when the Regulations 2016 came into force, the provisions were introduced for compassionate appointment. From perusal of the provisions of Regulation 2016, it is clear that Regulation 2016 has come into effect from the date of its publication in the Official Gazette, i.e., on 22.7.2016.

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6. After the death of Mr. Asgar Ali father of respondent No.4/Qutubudeen he has submitted an application for his appointment on compassionate ground in view of the provisions of Regulations 2016 but the District Minority Welfare Officer rejected his claim vide order dated 17.1.2017 on the ground that there was no provision under the Rules of 1987 for providing compassionate appointment.

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7. Against the aforesaid order dated 17.1.2017, a writ petition being Writ A No.51019 of 2017 was filed by the respondent No.4 before this Court. The said writ petition was disposed of by a Co-ordinate Bench of this Court vide judgement and order dated 2.11.2017. By the aforesaid order this Court was pleased to set aside the order dated 17.1.2017, passed by the District Minority Welfare Officer and directions were given for reconsideration of the matter in view of the provisions contained under the Regulations 2016.

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8. Pursuant to the order dated 2.11.2017 passed by this Court, District Minority Welfare Officer rejected the claim of the respondent No.4 vide

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its order dated 22.1.2018 on the ground that his father died on 17.3.2016 i.e. much before the commencement of the Regulations 2016 and as such, he is not entitled to get the benefit of the provisions of Regulation 2016 since the same came into force w.e.f. 22.7.2016.

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9. Against the order dated 22.1.2018 the respondent No.4 preferred a representation before the District Minority Welfare Officer. The District Minority Welfare Officer forwarded the said representation before the Registrar but while referring the matter to the Registrar, he has mentioned about the previous order passed by the District Minority Welfare Officer rejecting the claim of respondent No.4. The aforesaid letter was written on 11.12.2018. In response to the aforesaid letter dated 11.12.2018 the Registrar vide its order dated 21.12.2018 directed the District Minority Welfare Officer to make appointment of the respondent No.4 in view of the Sub Rules 2 and 7 of the Rule 10 of the Regulation 2016 as well as the judgement rendered by the Lucknow Bench of this Court in the case of Mohd. Ayza Ahmad Vs. State of U.P. and others reported in 2018 (4) ADJ 234 . The aforesaid order dated 21.12.2018 passed by the Registrar has been challenged by the petitioner before this Court in the present writ petition.

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10. It is contended by learned counsel for the petitioner that before passing the aforesaid order, no notice or opportunity has been given to the petitioners. It is further contended by Sri Mohammad Ali Ausaf, learned counsel for the petitioners that the U.P. Non Governmental Arabic and Persian Madarsa Recognition, Administration and Services Regulation, 2016 has been enforced with effect from 22.7.2016 and the provisions for compassionate appointment has been introduced under Regulation 10 of the aforesaid Regulations. It is further contended by learned counsel for the petitioner that the father of the petitioner died much before the Regulations 2016 came into force and as such in view of the judgement delivered by a division Bench of this Court in Special Appeal No.264 of 2017 (Abdul Qadir Vs. State of U.P. and 4 others) on 9.5.201 7, the order

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dated 21.12.2018 is liable to be set aside. Relevant portions of the order passed in Abdul Qadir (supra) is quoted below:-

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Sri Prakash Padia, learned counsel for the petitioner-appellant contended with vehemence that once rules in question have been brought in force for providing compassionate appointment, then directives ought to have been issued for consideration of petitioner-appellant's claim for appointment in the institution on compassionate ground in terms of Rule 10 (Part-III) of Uttar Pradesh Non-Governmental Arbic and Persian Madarsa Recognition, Administration and Services Regulation, 2016, in view of this, Appeal in question deserves to be allowed.

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Claim has been countered by Sri Ravi Shankar Prasad, Additional Chief Standing Counsel by contending that at the point of time when petitioner-appellant's father died, there was no provision under which compassionate appointment could have been made in Government aided Madarsa, and once there has been no such condition of service attached to the deceased's service, then rules in question would certainly operate prospectively, and dependent of an incumbent, who has died before enforcement of the rules in question, cannot claim as a matter of right for providing compassionate appointment and as such claim has rightly been turned down.

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Accepted position in the present case is that father of petitionerappellant has died in the year 2012, and at the said point of time, when father of petitioner-appellant has died, there was no provision under which compassionate appointment could have been provided to the dependent of the deceased incumbent who have been serving in Government aided Madarsa. Service conditions at the said point of time was governed by non-statutory rule known as 'Uttar Pradesh Ashaskeeya Arbi Tatha Fasi Madarson Ki Manata Niyamawali, 1987. On the date of death of petitioner-appellant's father, there was no provision in existence for offering appointment, is clearly indicative of the fact that the terms and condition of service that has been prevailing on the said date, there has been no provision for providing compassionate appointment, in case incumbent had died in harness.

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Rules in question namely, Uttar Pradesh Non-Governmental Arbic and Persian Madarsa Recognition, Administration and Services Regulation, 2016 has been enforced w.e.f. 22.07.2016 wherein categorical mention has been made that it shall came into force from the date of notification in the gazette. Part-III of aforementioned Regulations deals with teaching and non-teaching employees, and in the said chapter while considering the terms and condition of teaching and non-teaching employees, provision has been incorporated for providing compassionate appointment to one of the dependent on death of an employee during service. One dependent has to apply within a period of five years in the Madarsa. Thus these statutory provisions are clear to the effect

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that for the first time while introducing the terms and condition of teaching and non-teaching employees, the aforementioned provisions has been introduced for providing compassionate appoint on death of employee in Madarsa during service period and dependent was free to move an application within a period of five years.

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Consequently, under the scheme of things provided for, Regulations are clearly prospective in nature and effect and for the first time time provision has been incorporated for providing compassionate appointment on death of incumbent during service period to one of the dependent under the terms and condition of service, in this backdrop, claim that has been made to provide compassionate under the aforementioned regulation, certainty cannot be directed by us inasmuch as, we cannot proceed to enlarge the scope of aforementioned regulation, as on its face value, it is prospective in nature and would not include within its fold all such teaching and non teaching staff under whose condition of service, there has been no provision for providing compassionate appointment. Compassionate appointment has to be considered as per the scheme that has been in vague at the time of death of employee concerned. Apex Court in the case of Canara Bank Vs. Mahesh Kumar 2015(7) SCC 412, has further provided that compassionate appointment cannot be made in the absence of Rules and Regulations, and request has to be considered strictly in accordance with the governing scheme, and no discretion is left with any authority to make compassionate appointment dehors the scheme. Here the scheme in question introduced by way of Regulation for providing compassionate appointment w.e.f. 22.07.2016 in no way suggests that benefit of the same would be extended even in reference of those employees, teaching and non teaching, whose death has taken place, prior to enforcement of Regulation.

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In view of this, Special Appeal stands dismissed."

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11. In view of the same, it is contended by learned counsel for the petitioner that since the Regulations 2016 has been enforced w.e.f. 22.7.2016 as such no directions could be issued by the Authorities for consideration of the case of the respondent No.4 for his appointment on compassionate ground.

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12. Learned counsel for the petitioner further relied upon a judgement of the Supreme Case in the case of A.A. Carton Vs. Director of Education reported in LAWS (SC) 1983 315 :: 1983 AWC 368 SC . He relied upon paragraph 5 of aforesaid judgement, which is quoted hereinbelow:-

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"....But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect."

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13. In response to the same, it is contended by Sri Prabhakar Awasthi learned counsel for respondent No.4 that Regulations 2016 framed for providing appointment under the dying in harness rules are beneficiary in nature. The aforesaid provisions should be interpretted to give benefit to the large number of people of society.

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14. Sri Prabhakar Awasthi, learned counsel for the respondent No.4 relied upon a judgment delivered by Lucknow Bench of this Court in the case of Mohd. Ayza Ahmad (supra) . Sri Prabhakar Awasthi, learned counsel for the respondent No.4 relied upon paragraphs 7 and 8 of the aforesaid judgement reproduced below:-

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"7. Admittedly, these Regulations, providing for 'Dying in Harness' appointments, are without question a beneficial legislation. Such a legislation ought to be interpreted to give benefit to larger number of society. The later interpretation would fulfill the objective of the Regulations in a wider sense and would result in benefit to more people facing challenge, which is attempted to be addressed by these Regulations. A reference may be made to case of Workman Vs. Firestone and Tire and Rubber Company (1973) 1 SCC 811. Paragraph 35 of the said judgment reads:-

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" It is well settled that in construing the provisions of a welfare legislation, courts should adopt, what is described as a beneficent rule of construction. If two constructions are reasonably possible to be place on the section, it follows that the construction which furthers the policy and object the Act and is more beneficial to the employees, has to be preferred. Another principle to be borne in the mind is that the Act in question which intends to improve and safeguard the service conditions of an employee, demands an interpretation liberal sight of another canon of interpretation that an statute or for the matter of that and without doing violence to the language under by the legislature"

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8. In the present case, without doing any violence to the language of the Regulations, the said benefit can be given to more persons who are facing challenge in life because of untimely death of persons, on whom they were dependent and thus, they ought to be considered for appointment under 'Dying in Harness Rules'. The State Policy to give such benefit to dependents of its deceased employee should not be restricted, by unnecessarily giving a restrictive interpretation, but being social beneficial, the provisions should be so interpreted that

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larger number of families facing difficulty gets the benefit of the State Policy."

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15. It is further contended by Sri Prabhakar Awasthi, learned counsel that the respondent No.4 is entitled for consideration of his appointment under the Dying in harness Rules on the basis of the fact that on the date of consideration of his appointment i.e. 17.1.2017, the Regulations are already framed and as such the order passed by the District Minority Welfare Officer dated 21.12.2018 does not call for any interference by this Court.

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16. Heard learned counsel for the parties.

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17. From the perusal of the facts as contained in the writ petition as well as after hearing of the learned counsel for the parties, it is clear that the father of the respondent No.4 who was working on the post of Assistant Teacher in the Institution in question died on 17.3.2016 and the Regulations 2016 came into force with effect from 22.7.2016. Before the Regulations 2016 came into existence, no Government Order or Regulation whatsoever has been issued by the State Government providing the benefit of compassionate appointment to the teachers and employees working in the Abri and Farsi Madarsa. A part from the same, a Division Bench of this Court in the case of Abdul Qadir (supra) has already been held that the benefits contained in the Regulations 2016 will operate only prospective not retrospective. Insofar as the judgement delivered by Lucknow Bench of this Court in the case of Mohd. Ayaz (supra) is concern, from perusal of the same, it is clear that the said judgment was delivered by the Co-ordinate Bench without considering the law laid down by the Divison Bench in the case of Abdul Qadir (supra) . In view of the same, the said judgment passed by the Lucknow Bench is not biding force.

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18. Insofar as the arguments made by the counsel for the respondent pertaining to the vested rights accrued in favour of the respondent No.4 is concerned, the law in this connection is well settled in the case of Umesh

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Kumar Nagpal Vs. State of Haryana & Ors. (1994) 4 SCC 138 , the Supreme Court explained the basic purpose of providing compassionate appointment to the dependent of a deceased employee who has died in harness only if it satisfied the provision of compassionate appointment :

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"The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment , the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. ... For these very reasons, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."

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19. A part from the same, the law in this connection is well settled by the Supreme Court in large number of cases. The Supreme Court in the case of Commissioner of Public Instructions and others Vs. K.R. Vishwanath (2005) 7 SCC 2016. The Supreme Court laid down following principles:-

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" ...the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. ... High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on

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compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments."

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20. Similar view has been again taken by the Supreme Court in the case of State of J. & K. and others Vs. Sajad Ahmad Mir, (2006) 5 SCC 766 : 2006 (6) AWC 6209 (SC) and the principles was followed as quoted below:-

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"Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to the normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution."

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21. Certain principles of law has been laid down by the Supreme Court in the case of V. Shivamurthy Vs. State of Andhra Pradesh & Others. (2008) 13 SCC 730 , namely:-

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"(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.

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(b) Two well recognized contingencies which are carved out as exceptions to the general rule are:

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(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service.

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(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner.

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Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project

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affected persons. (Particularly where the law under which the acquisition is made does provide for market value and solatium, as compensation).

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(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.

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( d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts."

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22 . Further the Supreme Court in the case of Union of India & Another Vs. Shashank Goswami & Another (2012) 11 SCC 307 : 2012 (5) AWC 4734 (SC) held that appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. Relevant paragraphs of the aforesaid judgment are quoted below:-

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"9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate grounds is based on the premise that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate ground cannot be claimed as a matter of right.

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10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, the applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."

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23. Once again the Supreme Court in the case of Chief Commissioner, Central Excise and Customs, Lucknow & Others. Vs. Prabhat Singh (2013) (5) AWC 5062 (SC) held that compassionate appointment is not a gift to all those who seeks court's intervention and the Court may issue directions in the case where appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Relevant paragraphs of the aforesaid judgment are quoted below:-

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" We are constrained to record that even compassionate appointments are regulated by norms. Where such norms have been laid down, the same have to be strictly followed...The very object of making provision for appointment on compassionate ground, is to provide succor to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim, is an anti thesis, for the purpose for which compassionate appointment was conceived. Delay in raising such a claim, is contradictory to the object sought to be achieved... Courts and Tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. Courts are not supposed to carry Santa Claus's big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a court's intervention. Courts and Tribunals must understand, that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Discretion is therefore ruled out. So are, misplaced sympathy and compassion."

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24. In the case of MGB Gramin Bank Vs. Chakrawarti Singh reported in AIR 2013 SC 3345, the Supreme Court has observed as follows:

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" Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be

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offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right .

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The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds.”

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25. In very recently a division Bench of this Court in the case of Vishal Singh Vs. State of U.P. reported in 2018 (2) ESC 1036 (All.) (DB) was pleased to hold that the appointment on compassionate ground is given to tide over the immediate financial difficulties faced by the family of the deceased and that a minor cannot claim appointment on compassionate ground unless scheme itself envisages that as and when such minor becomes major, he can be appointed without any time limit.

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26. Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U.P. & Others 2014 AWC 3016 , formulated the principles which must govern the compassionate appointment in pursuance to the Dying in Harness Rules. In paragraph 29(ii), it was held by Full Bench of this Court that there is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Relevant paragraphs in this regard is quoted below:-

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29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

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(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;

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(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

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27. In view of the facts as stated, it is clear that a person can not be given appointment on compassionate ground unless the Rules or the scheme provides for such appointment or their exists some vested rights in his favour. In the present case, from the facts as narrated above, it is clear that at the time of death of father of respondent No.4, there was no Rule or statutory provisions for appointment on compassion ground and as such no vested right accrued in favour of the respondent No.4 on the death of his father to get appointment on compassionate ground.

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28. In the facts and circumstances, the writ petition is liable to be allowed and the same is hereby allowed. The order dated 21.12.2018 passed by respondent No.2/Registrar/Inspector, U.P. Board of Madarsa Education Lucknow is quashed.

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29. No order as to costs.

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30. The Registrar General is directed to sent a copy of this order to the Registrar/Inspector U.P. Board of Madarsa Education, Lucknow to communicate the same to the all District Minority Welfare Officers through out the State.

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Order Date :- 9.4.2019 saqlain

C/M, Madarsa Arabia Ahle Sunnat Madinatul Uloom, Sant Kabir Nagar, and Another v. State of U.P. and 3 Others

Case brief

What is this about?

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C/M, Madarsa Arabia Ahle Sunnat Madinatul Uloom, Sant Kabir Nagar, and Another v. State of U.P. and 3 Others

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