Allahabad High Court
Narendra Kumar vs District Basic Education Officer And 2 ... on 1 February, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved- 25.01.2024 Delivered- 01.02.2024 Neutral Citation No. 2024:AHC:16919 Court No. - 36 Case :- WRIT - A No. - 36093 of 2015 Petitioner :- Narendra Kumar Respondent :- District Basic Education Officer And 2 Others Counsel for Petitioner :- Indra Raj Singh Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta Hon'ble Saurabh Shyam Shamshery,J.
1. Few facts which are necessary to mention to adjudicate present case are that petitioner's father died in harness on 16.05.2009. Petitioner moved an application for compassionate appointment on 04.09.2011 mentioning that he has qualified B.Ed. It was communicated by the respondents by a letter dated 12.09.2012 that there is no vacant post of clerk and since he is not qualified for the post of Assistant Teacher as he has not passed TET examination, therefore, he was offered appointment on a post of Class IV.
2. It is further case of the petitioner that later on petitioner has qualified CTET on 02.09.2013, thereafter, he has approached this Court by way of filing Writ No. 36958/2014 which was disposed of vide order dated 21.07.2014 with a direction to consider the case of petitioner for compassionate appointment.
3. In pursuance of above order, representation of petitioner was considered, however it was rejected by impugned order dated 18.03.2015, mainly on ground that since petitioner was not qualified for the post of Teacher as he was not qualified TET and that B.Ed. is not an essential qualification for said post and further that no post of Clerk was available, therefore, he was offered appointment on a post of Class IV.
4. Above order is under challenge in this writ petition.
5. This Court by an interim order dated 16.07.2015 directed that in case petitioner joins the post of Class IV, his appointment will be remained subject to outcome of present case.
6. Sri Indra Raj Singh, learned Advocate for petitioner has placed the case on basis of legal provisions though not specifically supported by averment made in the writ petition. He has also submitted that in pursuance of Right of Children to Free and Compulsory Education Act, 2009 for the purpose of minimum qualification for appointment of Teachers, the State has notified Uttar Pradesh Basic Education Teachers Services (16th Amendment) Rules, 2012. He has further submitted that Rule 15 of it provides that minimum qualification will be as per provisions prescribed by the Central Government. He has further referred that amended Rule provides that B.Ed. is also essential qualification for the post of Assistant Teacher as well as that CTET is equivalent to TET, therefore, petitioner may be considered for appointment on the post of Assistant Teacher.
7. He has also submitted that petitioner's case could be considered for the post of Assistant Teacher under Dying in Harness Rules as well as that he has referred a Government Order dated 04.09.2000 annexed along with supplementary affidavit.
8. Ms. Akanksha Sharma, learned Advocate for respondents has opposed above submissions and has referred the stand taken in counter affidavit is reproduced hereinafter -:
"5. That the contents of paragraph No. 9. 10 and 11 of the Writ Petition are not disputed so far they relate to the matters of record, however it is stated in compliance of the order passed in Writ A No. 36958 of 2014 and order dated 26.02.2015 passed by this Hon'ble High Court in Contempt Application (Civil) No. 1209 of 2015 the petitioner was appointed on class IV post as class -II post was not available and the petitioner was not possessing the requisite qualification for the post of Assistant Teacher (Basic) 6 That in reply to the contents of paragraph No 12 of the Writ Petition it is stated that for the appointment of teachers in basic education department U P Basic Education (Teachers) Service (Sixteenth Amendment) Rules 2012 were notified on 23.08.2010. AS per those rules requisite qualification for the post of Assistant Teacher( Basic) has been prescribed as Bachelor Degree with the training qualification consisting of two year BTC, Vishist BTC and teacher eligibility test passed conducted by the Government or by the Government of India. The petitioner is not possessing the qualification of BTC and he has only done B.Ed Course 7 That the contents of paragraph No. 13, 14, 15 & 16 of the Writ Petition are not correct as stated therein. In this regard it is stated that the petitioner herein passed his TET Exam in the year 2013 by that time rules have already been amended and TET had been mandatory since 2010 by National Council for Techers Education (NCTE) vide notification dated 11.02 2010. B.Ed. was neither the required qualification at the time of the death of the father of the petitioner nor at the time of the passing of order dated 18.03.2015. It is also relevant to state that the Hon'ble Supreme Court vide judgment dated 11.08.2023 in the case of Devesh Sharma Vs State of Bihar S.L.P No 20743 of 2021 has also been pleased to hold the candidate having B.Ed. qualification are not eligible for the post of assistant teacher."
9. Before considering rival submissions, it would be apt to mention few paragraphs of the judgement passed by the Supreme Court in the case of Government of India and another vs. P. Venkatesh, (2019) 15 SCC 613 -:
"The primary difficulty in accepting the line of submissions, which weighed with the High Court, and were reiterated on behalf of the respondent in these proceedings, is simply this: Compassionate appointment, it is well-settled, is intended to enable the family of a deceased employee to tide over the crisis which is caused as a result of the death of an employee, while in harness. The essence of the claim lies in the immediacy of the need. If the facts of the present case are seen, it is evident that even the first recourse to the Central Administrative Tribunal was in 2007, nearly eleven years after the death of the employee. In the meantime, the first set of representations had been rejected on 3 January 1997. The Tribunal, unfortunately, passed a succession of orders calling upon the appellants to consider and then re-consider the representations for compassionate appointment. After the Union Ministry of Information and Broadcasting rejected the representation on 13 November 2007, it was only in 2010 that the Tribunal was moved again, with the same result. These successive orders of Tribunal for re-consideration of the representation cannot obliterate the effect of the initial delay in moving the Tribunal for compassionate appointment over a decade after the death of the deceased employee. This 'dispose of the representation' mantra is increasingly permeating the judicial process in the High Courts and the Tribunals. Such orders may make for a quick or easy disposal of cases in overburdened adjudicatory institutions. But, they do no service to the cause of justice. The litigant is back again before the Court, as this case shows, having incurred attendant costs and suffered delays of the legal process. This would have been obviated by calling for a counter in the first instance, thereby resulting in finality to the dispute. By the time, the High Court issued its direction on 9 August 2016, nearly twenty one years had elapsed since the date of the death of the employee.
In Umesh Kumar Nagpal Vs. State of Haryana, (1994) 4 SCC 138, this Court held thus:
"2...The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. 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 nonmanual 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."
Bearing in mind the above principles, this Court held:
"6. For these very reasons, the compassionate employment cannot be granted after a lapse of a 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.""
[emphasis supplied]
10. Petitioner's father died in harness way back in the year 2009 i.e. about 14 years. It is not on record whether under interim order, petitioner has joined on the post of Class IV or not? It is well settled that petitioner cannot claim under compassionate appointment for appointment on a particular post, irrespective of a fact whether he is qualified or not? As referred in P. Venkatesh (supra), presently after about 14 years, i.e. after sufficient lapse of time, immediate crisis is present.
11. In the present case, learned advocate for petitioner has not able to convince this Court that TET is not essential qualification for the post of Assistant Teacher as well as that there is no material on record to show that CTET is equivalent to TET as well as that B.Ed. qualification could be considered for the post of Assistant Teacher.
12. For reference, amended provision for Academic Qualification for Assistant Master is as follows:-
"(ii)(b) Bachelors degree from a University established by Law in India or a degree recognised by the Government equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC), two years BTC (Urdu) Vishisht BTC and teacher eligibility test passed conducted by the Government or by the Government of India"
13. Above referred provisions also indicate that TET and BTC are essential qualifications and admittedly petitioner has not qualified any of these. B.Ed. and CTET are not essential qualification.
14. In this regard, relevant part of impugned order is mentioned below-:
"परिषदीय विद्यालयों में सहायक अध्यापक के पद पर नियुक्ति हेतु उत्तर प्रदेश बेसिक शिक्षा (अध्यापक) सेवा (सोलहवां संशोधन) नियमावली २०१२ में स्नातक के साथ - साथ बी०टी०सी०, विशिष्ट बी०टी०सी० और सरकार द्वारा या भारत सरकार द्वारा संचालित अध्यापक पात्रता परीक्षा (टी०ई०टी०) उत्तीर्ण योग्यता प्राविधानित किया गया है। श्री नरेंद्र कुमार की प्रशिक्षण योग्यता बी एड होने के कारन वे परिषदीय विद्यालय में अध्यापक पद पर नियुक्ति हेतु अर्ह नहीं है। जनपद में परिषदीय लिपिक का कोई पद रिक्त नहीं है। अतः श्री नरेंद्र कुमार की नियुक्ति चतुर्थ श्रेणी कर्मचारी के पद पर ही की जा सकती है। इस हेतु श्री नरेंद्र कुमार से बार बार लिखित रूप में पृच्छा की गयी परन्तु उन्होंने इसका कोई उत्तर नहीं दिया। बल्कि माननीय उच्च न्यायालय, इलाहबाद याचिका संख्या ३६९५८/२०११, व अवमानना वाद संख्या १२००/२०१५ योजित किया गया। माननीय उच्च न्यायालय, इलाहबाद में याचिका संख्या ३६९५८/२०१४ में पारित आदेश दिनांक २१.०७.२०१४ एवं अवमानना याचिका संख्या ७२२/२०१५ में पारित आदेश दिनांक २१.०२.२०१५ के अनुपालन में श्री नरेंद्र कुमार पुत्र स्व० श्री विजेंद्र पाल सिंह को जूनियर हाई स्कूल डाण्डा दम्बु नगला विकास खंड बिलारी जनपद मुरादाबाद में चतुर्थ श्रेणी कर्मचारी के पद पर वेतन काम ५२००-२०२०० (ग्रेड वेतन १८००) में नितांत अस्थाई रूप से नियुक्ति प्रदान की जाती है।"
15. The outcome of above discussion is that petitioner is not qualified for appointment on the post of Assistant Teacher as well as that petitioner has no absolute right for consideration for appointment on compassionate ground on a particular post of his choice, even it is deemed that he is qualified for said particular post.
16. As referred above, there is no material on record whether petitioner in view of interim order passed by this Court has joined post of Class IV or not. As held in P. Venkatesh (supra), after a period of more than 14 years, at this stage, basic requirement for compassionate appointment i.e. to tide over immediate crisis is also not available, therefore, at this belated stage petitioner has no case for appointment on post of Assistant Teacher on facts as well as on law.
17. In these circumstances, prayer made in this writ petition cannot be considered and is hereby rejected, however, in case petitioner has already joined in Class-IV post, he will be remained continue or if has still not joined, in interest of justice, only three weeks' time are granted to submit his joining on post of Class-IV at the office of respondent concerned, if there is no other legal impediment and his appointment will be w.e.f. the date of joining.
18. With above observations, this writ petition is disposed of.
Order Date-: February 01, 2024 N. Sinha