Allahabad High Court
Pawan Kumar vs State Of U.P.Thr.Secy Basic Education on 20 February, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 9 Case :- SERVICE SINGLE No. - 236 of 2007 Petitioner :- Pawan Kumar Respondent :- State of U.P. and another Petitioner Counsel :- H.S.Jain Respondent Counsel :- C.S.C, V.K Bajpai Hon'ble Sudhir Agarwal, J.
1. Heard Sri H.S. Jain, learned counsel for petitioner, at great length and perused the record.
2. Petitioner is seeking a writ of mandamus commanding respondents to appoint him on the post of Assistant Teacher in any primary school run by U.P. Basic Shiksha Parishad (hereinafter referred to as "the Board") with retrospective effect and with all consequential benefits or in the alternative, appoint him on any suitable post according to his qualification possessed by him on the date of consideration for appointment under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Rules, 1974") with retrospective effect and with all consequential benefits. He has also prayed for issuance of a writ of certiorari for quashing the order dated 21.2.2007 (Annexures 15 to writ petition) whereby District Basic Shiksha Adhikari, Faizabad (hereinafter referred to as "DBSA") has rejected his claim for compassionate appointment on the post of Assistant Teacher.
3. The facts, in brief, giving rise to the present dispute, are as under:
4. Petitioner's father, Chhotey Lal, was working as Assistant Teacher in Primary Pathshala, Gaddipur, District Faizabad and died on 27.12.1997 leaving behind his widow and five sons, eldest being the petitioner.
5. Petitioner's date of birth being 3.1.1983, he was about 14 years at the time when his father died. The educational qualification, which he possessed at that time, besides the fact that he was a minor, was High School which, he had passed in June' 1997. He was undergoing education in Class 11th. He completed his education upto Intermediate in June' 1999 as is evident from Mark-sheet dated 30.6.1999 (page 19 of paper book).
6. The Petitioner's mother submitted an application on 6.8.1999, giving details of family members and their educational qualifications and requested for employment of her son, i.e., petitioner. She herself did not seek any compassionate appointment after the death of Sri Chhotey Lal. It also cannot be disputed that in 1999 also, all the children were minor and widow herself did not ask for compassionate appointment. Thus there was no occasion for the authorities concerned to look into the demand of compassionate appointment. In fact, the letter of Smt. Indra Devi, petitioner's mother, which was received in the office of DBSA on 6.8.1999, admits her disinclination to join Service. She requested for compassionate appointment to her son Pawan Kumar, the petitioner, who was about 16 years of age at that time. Being minor, he obviously could not have been given such appointment at that time. It was thus not heeded by the authorities concerned.
7. Thereafter another application was filed by Smt. Indra Devi, petitioner's mother on 22.1.2001 requesting for compassionate appointment to her son, i.e., petitioner but at that time also, he was below 18 years of age.
8. Petitioner himself submitted an application seeking compassionate appointment on 20.12.2002 wherein he stated to have appeared in B.A. 3rd year examination, result whereof was awaited. He requested for compassionate appointment as Assistant Teacher or Clerk. The applications dated 22.1.2001 and 20.12.2002 were processed by authorities concerned, and vide order dated 5.10.2004, petitioner was offered appointment as a Class IV employee in Primary School, Haidarganj, District Faizabad.
9. However, instead of joining the aforesaid post, the petitioner opted to make complaint to Lokayukt, U.P. that he ought to have been appointed as Assistant Teacher but has been discriminated while another person, namely, Dev Narain was given compassionate appointment as Assistant Teacher. It appears that Secretary, Lokayukt, U.P., Lucknow issued a letter dated 15.10.2004 recommending to Government that petitioner ought to have been offered appointment as Assistant Teacher as was done in the case of Dev Narain.
10. Consequently, the Secretary (Basic Education) issued letter dated 11.2.2004 to DBSA directing him to consider the petitioner for appointment on a post suitable according to his education.
11. The matter, however, was reexamined by State Government. It found that petitioner did not possess requisite qualification for appointment as Assistant Teacher within five years from the date of death of his father, hence could not have been appointed as Assistant Teacher. It informed the Lokayukt, accordingly vide letter dated 10.10.2005. It is at this stage, petitioner came to this Court. By order dated 11.1.2007, this Court permitted him to make representation to DBSA and further observed that if such a representation is made, it shall be considered and disposed of by a reasoned and speaking order by DBSA. Pursuant thereto, petitioner submitted representation dated 8.3.2007 but the same has been rejected by DBSA by order dated 21.2.2007, which has been challenged by means of amendment allowed by order dated 7.4.2010.
12. Respondents have filed counter affidavit stating that petitioner was already issued an appointment letter in accordance with Government Order dated 4.9.2000, and, he is not entitled to be appointed on any other post on the basis of qualification he has obtained subsequently.
13. Sri H.S. Jain, learned counsel appearing for petitioner relied on Government order dated 4.9.2000 and contended that in view of decision taken in para 2, 5, 7 and 8 thereof, petitioner was entitled for appointment according to the qualification he possessed on the date of consideration of his application and, therefore, the respondents, in considering his case otherwise, have acted wholly illegally. He urged that in the matter of compassionate appointment, petitioner cannot be discriminated when another incumbent has been offered such an appointment as Assistant Teacher. Any other view of the matter would render the entire action of respondents arbitrary, illegal and unfair. He placed reliance on Apex Court's decision in I.G. (Karmik) and others Vs. Prahalad Mani Tripathi 2007 (6) SCC 162 and Central Inland Water Transport Corporation Limited and another Vs. Brojo Nath Ganguly and another (1986) 3 SCC 156. (para 83, 92 and 98).
14. Since the entire argument has revolved around the Government Order dated 4.9.2000, it would be appropriate to see, what has been stated therein.
15. However, before adverting to that, it would also be appropriate to have an idea of relevant statutory provisions governing recruitment and appointment in Primary Schools maintained by the Board. It was constituted under Section 3 of U.P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") and took over management of all Basic Schools which, before the appointed date, belong to any local body. Under Section 19 thereof, the State Government was empowered to make rules for carrying out purposes of the Act, besides the matters enumerated in Sub-section 2 thereof which included recruitment and conditions of service of teaching and non-teaching staff of the Board and also the Schools maintained and recognized by the Board.
16. In the present case, this Court is concerned with Basic Schools transferred to Board under Section 9 of Act, 1972, and managed or established by it.
17. In exercise of power under Section 19 of Act, 1972, U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "Rules, 1981") have been promulgated by U.P. Gazette Extraordinary dated 3.1.1981. These Rules apply to Junior Primary Schools i.e. those imparting education upto Class V. Besides prescribing qualifications, eligibility conditions etc. for recruitment and appointment of Teachers in the Primary School governed by Rules, 1981, it also provides procedure for recruitment and appointment of teaching staff in such a Primary School. The appointments contemplated therein are by two sources, namely, direct recruitment and promotion. Rules, 1981 do not contemplate any appointment without following procedure laid down therein but there is a provision granting relaxation to certain category of persons in respect to maximum age limit, educational qualifications or any procedural requirement of recruitment. Rule 10 contemplating such relaxation reads as under:
"10. Relaxation for ex-servicemen and certain other categories.- Relaxation, if any, from the maximum age-limit, educational qualification or/and any procedural requirements of recruitment in favour of the ex-servicemen, disabled military personnel, dependants of military personnel dying in action, dependants of board's servants dying in harness and sportsmen shall be in accordance with the general rules or order of the Government in this behalf in force at the time of recruitment."
18. In respect to Junior High Schools, i.e., those imparting education from Class VI to VIII, separate set of Rules, namely, Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teacher) Rules, 1978 (hereinafter referred to as "Rules, 1978") have been framed containing similar provisions.
19. Since there was no provision of compassionate appointment, it appears that the State Government issued Government Order (hereinafter referred to as "G.O.) No. 1095/15-5-95-30/82 dated 2.2.1996, laying down a scheme for giving appointment to one of the dependants of teaching or non teaching staff dying in harness while working in a Primary School under Board.
20. It appears that in respect to secondary educational institutions, modifying the scheme of compassionate appointment, which was already existing therein, a G.O. dated 2.2.1995 was issued permitting appointment of dependant of a deceased teacher on the post of Assistant Teacher (L.T. Grade) also if the candidate possesses requisite qualification for the post and if there is a vacancy in the institution. This G.O. dated 2.2.1995 was declared arbitrary and violative of Article 14 of Constitution by a learned Single Judge (Hon'ble M. Katju, J.) (as His Lordship then was) vide judgment dated 27.4.1998 in Civil Misc. Writ Petition No. 41564 of 1997 (Sanjeev Kumar Dubey Vs. District Inspector of Schools, Etawah and others). The Government, consequently, issued G.O. No. 1634/15-11-98-1499 (8)/77 dated 8.1.1999, rescinding all such Government Orders as a result whereof, the scheme of compassionate appointment in the Primary Schools of Board also got obstructed. Later on, a Division Bench of this Court set aside the above judgment of Hon'ble M. Katju, J. vide judgment dated 1.2.2000 in Sanjeev Kumar Dubey Vs. District Inspector of Schools, Etawah and others 2000 (1) AWC 857. However, while setting aside the aforesaid judgment, this Court in para 10 made following observations:
"10. True, the language used in Regulation 106 of Chapter III of the Regulations as it stands substituted by notification dated 2.2.1992 is of mandatory character but it is settled by a catena of decisions of the Supreme Court that a compassionate appointment cannot be claimed as a matter of course irrespective of the financial status of the family of the deceased and qualifications and suitability of his dependent seeking compassionate appointment. A construction, which leads to Invalidity of a statutory provision, should be avoided. The gloss of construction which we are putting on the impugned provisions will go a long way to strike a reasonable balance between the interest of the family of the deceased and that of the student community without unduly encroaching upon the fundamental right of equality of opportunity of other eligible and qualified persons." (emphasis added)
21. The State Government following the aforesaid dictum, issued another G.O. No. 5193/15-5-2000-400 (222)/99 dated 4.9.2000, given effect from 8.1.1999, vide para 5 thereof. The relevant extract of scheme, propounded by Government, contained in para 3 (2) (3) (4) (5) (8) and (10) of G.O. dated 4.9.2000 reads as under:
^^¼2½ mRrj izns'k csfld f'k{kk ifj"kn ds f'k{kdksa@ f'k{k.ksRrj deZpkfj;ksa ds ,sls e`rd vkfJr] tks csjkstxkj gks vkSj fu;eksa ds varxZr fu/kkZfjr U;wure~ 'kSf{kd ,oa izf'k{k.k ;ksX;rk j[krs gks rFkk vU; izdkj ls ifj"kn dh lsok gsrq vgZ gks] dks ifj"knh; izkFkfed fo|ky;ks esa lgk;d v?;kid@v/;kfidk ds in ij vFkok ifj"kn ds v/khu f'k{k.ksRrj r`rh; Js.kh ds lcls uhps ds in ij vFkok prqFkZ Js.kh ds in ij fofgr ;ksX;rk@ izf'k{k.k ;ksX;rk ds vk/kkj ij lsok;kstu gsrq vkosnu djus ij HkrhZ ds lkekU; fu;eksa@ izfdz;k dks f'kfFky djrs gq, ifj"knh; lsok esa mi;qDr lsok;kstu ij fopkj fd;k tk;sxkA ¼3½ le;≤ ij ;Fkkla'kksf/kr mRrj izns'k csfld f'k{kk ¼v/;kid½ lsok fu;ekoyh 1981 ds vuqlkj vgZ e`rd vkfJr dks lgk;d v/;kid@v/;kfidk ds in ij vkosnu djus ds fnukad ls ;FkklEHko rhu ekg ds vanj lsok;kstu dh lqfo/kk tuin Lrj ij fjDr in vFkok in fjDr u gksus dh fLFkfr esa vf/kla[; in ds fo:) iznku dh tk;sxhA ¼4½ ,sls e`rd vkfJr] tks lsok;kstu gsrq vkosnu&i= izLrqr djus dh frfFk dks lgk;d v/;kid ds in gsrq lsok fu;eksa esa fofgr 'kSf{kd vgZrk j[krs gks ijUrq izf'k{k.k vgZrk ugh j[krs@ iwjh ugh djrs] dks vizf'kf{kr v/;kid ds :i esa lsok;kstu gsrq vkosnu djus ij ;FkklEHko rhu ekg ds vanj lsok;kstu dh lqfo/kk iznku dh tk;sxhA ,sls e`rd vkfJr dks lsok;kstu ds ckn lEcfU/kr tuin ds ftyk f'k{kk ,oa izf'k{k.k laLFkku esa izkjEHk gksus okys csfld v/;kid izek.k&i= ¼ch0Vh0lh0½ izf'k{k.k ikB~;dze ds vkxkeh igys cSp esa izf'k{k.k gsrq izos'k fn;k tk;sxkA e`rd vkfJr ds :i esa izkFkfed fo|ky; esa lgk;d v/;kid@v/;kfidk ds in ij fu;fer fu;qfDr iznku djus ds fy, mudks ch0Vh0lh0 izf'k{k.k ikB~;dze lQyrkiwoZd iw.kZ djuk vfuok;Z gksxkA izf'k{k.k vof/k esa mUgsa vizf'kf{kr v/;kid ds :i esa fu;r osru] tSlk fd 'kklu }kjk le;≤ ij fu/kkZfjr fd;k x;k gks] ns; gksxkA csfld v/;kid izf'k{k.k ikB~;dze esa mRrh.kZ gksus ds ckn gh izkFkfed fo|ky; esa lgk;d v/;kid ds in ij fu;fer fu;qfDr iznku dh tk;sxhA --- + ¼5½ ,sls e`rd vkfJr] tks lEcfU/kr deZpkjh dh e`R;q ds fnukWad dks e`rd vkfJr ds :i esa lsok;kstu ds fy, U;wure 'kSf{kd vgZrk b.VjehfM;V vFkok mlls vf/kd j[krs gks vkSj csfld f'k{kk ifj"kn ds v/khu v/khuLFk Lrjksa ij fyfid ds lEoxZ ds lcls uhps ds in ij lsok;kstu ds fy, vU;Fkk vgZ gks] dks lEcfU/kr tuin esa fyfid ds fjDr in ds lkis{; lEoxZ esa lcls uhps ds in ij lsok;kstu iznku fd;k tk;sxkA ---
¼8½ e`rd vkfJr }kjk lEcfU/kr deZpkjh ds e`R;q ds fnukad ls ikap o"kZ ds Hkhrj lsok;kstu ds fy, vkosnu izLrqr fd;k tk ldrk gSA ijUrq tgka jkT; ljdkj dks ;g lek/kku gks tk;s fd lsok;kstu ds fy, vkosnu djus ds fy, fu;r le; lhek ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ gksrh gS ogka og vis{kkvksa dks] ftUgsa og ekeys esa U;k;laxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh djus ds fy, vko';d le>s] vfHkeqDr ;k f'kfFky dj ldrh gSA fu;eksa esa bl vk'k; dh vfHkeqfDr@ f'kfFkyhdj.k ds lEcU/k esa izLrko lEcfU/kr fu;qfDr izkf/kdkjh }kjk f'k{kk funs'kd ¼cs0½ ds ek/;e ls 'kklu dks izsf"kr fd;s tk;sxsA ---
¼10½ e`rd vkfJr ds :i esa lsok;kstu ds fy, U;wure~ vk;q lhek tSlk fd lEcfU/kr lsok lEoxZ ds lsok fu;eksa esa fofgr gS] gksxhA^^ (emphasis added) "(2) Those dependents of the deceased teaching/non-teaching staff of Uttar Pradesh Basic Shiksha Parishad who are unemployed and possess the minimum educational and training qualifications prescribed under the rules and are eligible for the service of the Parishad in other respects, shall on making application for employment in the service of the Parishad be considered for suitable employment as Assistant Teachers in primary schools of the Parishad or either on the lowest non-teaching class III post or on class IV posts under the Parishad on the basis of prescribed qualification/training, while relaxing the general rules/procedure of the recruitment.
(3). As per the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, as amended from time to time, an eligible dependant of the deceased shall be extended the facility of employment either on a vacant post at the district level or, in case of there being no such vacancy, against a supernumerary post, as far as possible, within three months from the date of applying for the post of Assistant Teacher.
(4). Dependants of the deceased who, on the date of presentation of application for employment, possess educational qualification prescribed in the service rules for the post of Assistant Teacher but do not possess/fulfil the training qualification shall on applying for employment as untrained teachers be accorded the facility of employment as such, as far as possible, within three months. Such dependants of the deceased after being in employment shall be admitted for training in the next first batch of Basic Teaching Certificate (BTC) training course commencing at the District Institute of Education and Training (DIET) of the concerned district. In order to get regular appointment to the post of Assistant Teacher in a primary school as dependants of the deceased, such dependants shall have to successfully complete the BTC Training Course. In course of training, they will be paid salary as untrained teacher as fixed by the government from time to time. They shall be accorded regular appointment to the post of Assistant Teacher in a primary school only after passing the BTC Training Course.
(5). Those dependants of the deceased who, on the date of death of the concerned employees, have the minimum educational qualification of intermediate prescribed for employment as such dependant or above and are otherwise eligible for employment on the lowest post of the clerical cadre at the subordinate levels under the Basic Shiksha Parishad, shall be accorded employment on the lowest post in the cadre as against the vacant clerical posts in the concerned district. ...
(8) Within five years of the death of the concerned employee, an application for employment may be presented by dependant of such deceased. But wherever the state government is satisfied that unjustifiable difficulty may emanate in a specific case from the prescribed time limit for presentation of application for employment, it may exempt or relax such requirements as it may deem expedient so as to take action in a just and equitable manner therein. A proposal for exemption/relaxation to this effect in the rules shall be sent to the government by the concerned appointment authority through the Director of Education (Basic).
(10). The minimum age limit for employment as dependent of the deceased shall be such as stand prescribed in the service rules of the concerned service cadre." (English Translation by the Court)
22. One of the important aspect contained in the scheme, as is evident from para 3 (5), is that for offering compassionate appointment, qualification possessed by the dependent of deceased employee shall be seen on the date of death of such employee. Now in the context of above relevant statutory provisions, and the scheme of compassionate appointment applicable to Primary Schools of Board, this Court has to examine the correctness of the order impugned in this writ petition and also justification of the claim set up by petitioner asking for appointment on the post of Assistant Teacher in view of qualification i.e. Graduation which he could secure in 2002-03.
23. The first question would be, for the purpose of applicability of provision relating to eligibility etc.; whether the Scheme of compassionate appointment available on the date of death of deceased employee has to be seen or it should be on the date when application was made by the dependent of deceased employee or when the application came up for consideration before competent authority.
24. This question has to be considered in the light of scheme applicable for compassionate appointment. It is now well settled that appointment on compassionate ground is not a source of recruitment but it is an exception to the general rule of recruitment offering equal opportunity of employment to all. Dependants of deceased employee do not have any special claim or right to employment which may be extended so as to be included within fundamental right under Articles 14, 16 or 19 of the Constitution. To the extent, the concessions and benefits have been extended to the dependants of deceased employee under the Rues or by the separate scheme, only that would be applicable and that too, only to the extent provided therein, since purpose of the scheme is to enable family of deceased employee to get over sudden financial crises.
25. In Santosh Kumar Dubey Vs. State of U.P. & Ors. 2009 (6) SCC 481 the Apex Court had the occasion to consider Rule 5 of Rules, 1974 and said:
"The very concept of giving a compassionate appointment is to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service."
26. In I.G. (Karmik) and others Vs. Prahalad Mani Tripathi (supra) the Court said:
"Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion."
27. The importance of penury and indigence of the family of the deceased employee and need to provide immediate assistance for compassionate appointment has been considered by the Apex Court in Union of India (UOI) & Anr. Vs. B. Kishore 2011 (4) SCALE 308. This is relevant to make the provisions for compassionate appointment valid and constitutional else the same would be violative of Articles 14 and 16 of the Constitution of India. The Court said:
"If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution."
28. It is thus clear that rule of compassionate appointment has an object to give relief against destitution. It is not a provision to provide alternate employment or an appointment commensurate with the post held by the deceased employee. It is not by way of giving similarly placed life to the dependants of the deceased. While considering the provision pertaining to relaxation under Rules, 1974, the very object of compassionate appointment cannot be ignored. This is what has been reiterated by a Division Bench of this Court in Smt. Madhulika Pathak Vs. State of U.P. & ors. 2011 (3) ADJ 91.
29. What should be the reckoning point for considering eligibility etc., in my view, is squarely covered by a recent decision of Apex Court in State Bank of India Vs. Rajkumar (2010) 11 SCC 661. The Court observed that claim for compassionate appointment is traceable only to the scheme framed by employer for such employment. There is no right, whatsoever, outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished or withdrawn. When a scheme is abolished, any pending application seeking appointment under the scheme will also cease, unless saved. The mere fact that an application was made when the scheme was in force, will not, by itself, create a right in favour of the applicant. The Court also said that, normally, three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of deceased employee; (ii) fulfilment of eligibility criteria prescribed under the scheme for compassionate appointment; and (iii) availability of posts, for making such appointment.
30. The Court also considered, whether the death of deceased employee, by itself, results in creating a right, i.e., a vested right in the dependants to claim compassionate appointment or not and said that it would depend on the terms of scheme. One of such case is where scheme provides for automatic appointment to a specified family member on the death of any employee without any of the aforesaid three requirements, and, in such a case, it can be said that scheme creates a right in favour of family member for appointment on the date of death of employee. In such a case scheme in force at the time of death would apply.
31. The second category is where the scheme provides that on the death of an employee, if a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfil any eligibility criteria, then the scheme creates a right in favour of the applicant, on making application and the scheme, that was in force at the time when the application for compassionate appointment was filed, will apply.
32. The third category, where the scheme contemplates compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment.
33. The fourth category covers a scheme where the dependant of the deceased employee has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made of the most deserving amongst the several competing applicants, to the limited quota of posts available.
34. In the cases of schemes like that of third and fourth categories, there is a need to verify eligibility and antecedents of the applicant or the financial capacity of the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a selection committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies. In such cases, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. In all these cases, it cannot be said that any of the applicants has a vested right. Here such scheme would be applicable which was available and operating when the application is actually considered, and not the scheme that was in force earlier when the application was made. Similarly, if the earlier scheme is abolished and new scheme, which replaces it, if specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply.
35. The Court in State Bank of India Vs. Rajkumar (supra) also observed that compassionate appointment is a concession and not a right. The employer may wind up the scheme or modify it at any time depending upon its policies, financial capacity and availability of posts.
36. In taking the above view, the Court also relied on its earlier decision in Union of India Vs. R. Padmanabhan 2003 (7) SCC 270.
37. Looking this matter in the light of the above authorities of Apex Court and considering the scheme of compassionate appointment, as applicable vide Government Order dated 4.9.2000, I find that scheme contemplates an application after the death of employee but for the purpose of considering such dependant of the deceased employee against a particular post, the cut of date is date of death, vide Para 3 (5), which says that the qualification possessed by dependant of deceased employee on the date of death of such employee shall determine, whether he has to be considered for a post of Clerk or below thereto but in respect to such dependants of deceased employee, who possess qualification for appointment as Assistant Teacher (academic and training, both) on the date of submitting application for employment, para 3 (3) provides that such applicants can be appointed as Assistant Teacher. However, if the applicant-dependent is untrained, if he requests for appointment as untrained Teacher, then only he can be given appointment as untrained Teacher under Para 3(4) of the Scheme.
38. In the present case, petitioner's own application submitted for the first time in December, 2002 (Annexure 3 to writ petition) shows that he was awaiting result of B.A.-III year and, therefore, being an intermediate till that date, he was not qualified for appointment either as Assistant Teacher or as untrained Teacher under Para 3 (3) and (4) of G.O. dated 4.9.2000.
39. His case, therefore, could not have been considered in accordance with para 3 (3) and (4). It is in this context, the authorities considered him under para 3 (5) of G.O. and issued appointment letter dated 5.10.2004 appointing him as Class 4 employee in Primary School, Haidarganj, Firozabad.
40. It does appear that petitioner was not in any financial scarcity or penury and, therefore, he did not join but insisted upon respondents to appoint him as Teacher and that is why this matter has remained pending till date.
41. In my view, insistence of petitioner to claim appointment as Teacher is neither consistent with the scheme of compassionate appointment, applicable to Primary Schools, maintained by Board as per Government Order dated 4.9.2000 nor petitioner is in the need of employment on account of penury and financial scarcity of him and his family. His fight, on the contrary, is for status and position and not for employment for livelihood and survival due to sudden demise of sole bread earner of the family. This insistence is something contrary to basic concept of compassionate appointment.
42. Even otherwise, now 15 years have passed since the date of death of petitioner's father. Will an order for compassionate appointment to petitioner, at this juncture, would be conducive to the basic objective of such scheme. This Court's view goes against it.
43. An appointment on compassionate basis claimed after a long time has seriously been deprecated in Union of India Vs. Bhagwan Singh 1995 (6) SCC 436; and Haryana State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23. In the later case, the Court said :
"compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. ..... the very object of appointment of dependent of deceased-employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years."
44. In State of U.P. & Ors. Vs. Paras Nath AIR 1998 SC 2612, the Court said:
"The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case."
45. In Hariyana State Electricity Board Vs. Krishna Devi JT 2002 (3) SC 485 = 2002 (10) SCC 246 the Court said:
"As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family ...."
46. In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr. AIR 2005 SC 106, the Court said:
"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises."
47. In State of Jammu & Kashmir Vs. Sajad Ahmed AIR 2006 SC 2743 the Court said:
"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 except where compelling circumstances demand, such as, death of sole bread earner 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 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."
48. Following several earlier authorities, in M/s Eastern Coalfields Ltd. Vs. Anil Badyakar and others, (2009) 13 SCC 122 = JT 2009 (6) SC 624 the Court said:
"The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over."
49. In Santosh Kumar Dubey Vs. State of U.P. (supra), the Court considered that father of appellant Santosh Kumar Dubey became untraceable in 1981 and for about 18 years the family could survive and successfully faced and overcame the financial difficulties. In these circumstances it further held:
"That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions."
50. In Local Administration Department and Anr. Vs. M. Selvanayagam @ Kumaravelu JT 2011 (4) SC 30, Apex Court considered a case arising out of a judgment of the Madras High Court. One Meenakshisundaram, a Watchman in Karaikal Municipality died on 22nd November, 1988 leaving behind a widow and two sons, one of whom was eleven years old at that time. The widow was thirty-nine years of age but immediately did not make any application for compassionate appointment. On 29th July, 1993, after about four and a half years and odd, she made an application for compassionate appointment of M. Selvanayagam @ Kumaravelu since he had passed S.S.L.C. Examination in April, 1993. However, the appointment could not have been granted since M. Selvanayagam @ Kumaravelu was minor at that time also. Another application thereafter was given after 7 years and 6 months from the date of death of Meenakshisundaram. Having receipt no reply, a writ petition was filed which was disposed of directing the Municipality to pass an order on the application for compassionate appointment. The claim for compassionate appointment ultimately rejected by the Municipality by order dated 19th April, 2000. The writ petition against the said order was dismissed by the learned Single Judge but in intra-court appeal, it was allowed vide judgment and order dated 30th April, 2004 and the Municipality was directed to provide compassionate appointment. It is this order, which was assailed before the Apex Court. The Municipality declined to give compassionate appointment observing that wife of the deceased employee did not make any request immediately after the death for compassionate appointment which shows that she was not facing any financial crisis in the family at that time. This reasoning was negatived by the Division Bench of the High Court but the Apex Court did not approve the judgment of the High Court and said:
"....there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependents is given a job with the sole objective to provide immediate succor to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind.
8. Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasized is that such an appointment must have some bearing on the object of the scheme.
9. In this case the Respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the Respondent did not come under the scheme of compassionate appointments."
51. In the context of above authorities of law, reliance placed by petitioner on Apex Court's decision in Central Inland Water Transport Corporation Limited (supra), I find of no help to him, whatsoever, inasmuch neither that was a case of compassionate appointment nor there is any challenge to the scheme as such, but it is also well established that once a person claims a benefit under a particular scheme, he has to accept the scheme as it is or to reject in toto but he cannot claim that some part of the scheme, favourable to him, should be read in a particular manner and other part should be ignored. Here the attempt of Sri Jain to read the requirement of eligibility under para 3 (5) of the Government Order dated 4.9.2000 consistent with para 3 (4) is nothing but an attempt to change and modify the scheme without challenging it, and, in my view, it is not permissible. Even otherwise, there is no per se illegality or irrationality in the scheme.
52. So far as decision in I.G. (Karmik) and others Vs. Prahalad Mani Tripathi (supra), relied on by Sri Jain is concerned, the same has already been considered and I do not find anything therein to lend help to the petitioner to support him in the case in hand.
53. At this stage, it may also be noticed that the parity, which the petitioner was claiming with another person, who was appointed as a Clerk, is clearly misplaced, inasmuch there is no averment in the entire writ petition that other appointee was ineligible for appointment on the post of Clerk i.e. a Class III post in accordance with Government Order 4.9.2000 on the date of death of his father, still he has been given such appointment. In the circumstances, the relevant facts to claim any discrimination are missing in the writ petition.
54. Be that as it may, even otherwise it is well established that two wrongs will not make one right.
55. In Union of India & another Vs. Kartick Chandra Mondal & another (2010) 2 SCC 422, the Court observed that even if some other persons similarly placed have been absorbed, that cannot be a basis to grant a relief by the Court which is otherwise contrary to statute. In para 25 of judgment, the Court said:
"Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh and Ors. (2009) 5 SCC 65, the relevant portion of which is extracted hereinbelow:
"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order ..."
56. In State of Karnataka & others Vs. Gadilingappa & others (2010) 2 SCC 728, the Court reiterated that it is well settled principal of law that even if a mistake is committed in an earlier case, the same cannot be allowed to be perpetuated.
57. Following the above and few other authorities of Apex Court, this Court (myself) in Shiv Kumar Saxena And Another Vs. Lucknow University, Lucknow and others (Service Single No. 6990 of 2002) decided on 31.5.2011, observed as under:
"Learned counsel for petitioners contended that some other persons have been regularized, and, therefore, petitioners are also entitled for the same treatment. However, he failed to show that regularization of others was consistent with the scheme of statutory provisions and, therefore, was made validly. It is well settled that if a wrong has been committed by the respondents in respect to some other persons, that will not provide a cause of action to claim parity on the ground of equal treatment since the equality in law under Article 14 is applicable for claiming parity in respect to legal and authorized acts. Two wrongs will not make one right. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 5565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has held that Article 14 has no application in such cases."
(emphasis added)
58. In view of above discussion, I find no error, legal or otherwise, in the impugned order passed by DBSA rejecting claim of petitioner for appointment on the post of Assistant Teacher.
59. Writ petition lacks merits. Dismissed.
60. There shall be no order as to costs.
Dt. 20.2.2013 PS