Allahabad High Court
Smt. Priti Sharma vs State Of U.P. And 2 Others on 3 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2373
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 1 Case :- WRIT - A No. - 11612 of 2017 Petitioner :- Smt. Priti Sharma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble J.J. Munir,J.
Smt. Priti Sharma, the petitioner, is the widow of the late Jaikrishna Bhardwaj, an Assistant Teacher with the DAV Inter College, Aligarh1. The College imparts education up to Class XII, and is recognised under the Uttar Pradesh Intermediate Education Act, 19212. The College receives grant-in-aid from the State Government and managed by a private management.
2. There is little quarrel that the petitioner's husband, the late Jaikrishna Bhardwaj, was duly appointed to the post of Assistant Teacher in L.T. Grade with the College by the respondent-Management, through a letter of appointment dated 28.07.1995. This appointment was made on a short-term vacancy against a substantive post, on account of the permanent incumbent, Mahesh Chandra Kansal, being promoted ad-hoc to the post of a Lecturer with the College, on 02.09.1994. The appointment was, therefore, terminable, upon the joining of an incumbent selected by the Uttar Pradesh Secondary Education Services Selection Commission, or upon Mahesh Chandra Kansal joining back his substantive post, whichever be earlier. The appointment of the petitioner's husband was one made in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 19813. The petitioner's husband joined on 01.08.1995, and financial approval to his appointment was granted by a detailed order dated 13.05.1996, passed by the District Inspector of Schools4 pursuant to a direction by this Court made in Civil Misc. Writ Petition No. 5327 of 1996 vide judgment and order dated 09.06.1996. That writ petition was instituted by the petitioner's husband. The order granting financial approval to the appointment of the petitioner's husband, made after examining its legality, became final and was not questioned either by the Management or revoked by the Education Authorities.
3. Mahesh Chandra Kansal retired from service on 30.06.1997, while serving as an ad-hoc Lecturer, but holding his lien on the post of L.T. Grade Teacher, to which the petitioner's husband was appointed, to fill up the short-term vacancy. It appears that upon retirement of Kansal, payment of salary to the petitioner's husband was stopped with effect from the month of July, 1997 on ground that the vacancy had turned into a substantive one. The petitioner's husband represented in the matter to the Education Authorities, including the Government. The Special Secretary to the Government, vide order dated 27.02.1999, and the Deputy Director of Education (Secondary-I), Directorate of Education, Lucknow, vide order dated 08.03.1999, issued directions to the effect that the petitioner's husband was entitled to continue, till a regularly selected candidate by the Commission/Selection Board joined. In compliance with the said order, the DIOS, Aligarh passed an order dated 11.05.1999, sanctioning payment of the petitioner's husband's salary, until a regularly selected candidate by the Commission/Board joined. The appointment was expressed to be purely temporary and in the L.T. Grade. This fact about approval of tenure for the petitioner's husband, until a regularly selected candidate joined, is admitted to the respondents. It is also admitted that on the strength of the aforesaid orders of the Education Authorities, the petitioner's late husband continued in service as an L.T. Grade Teacher, until his decease on 06.01.2012.
4. Shorn of unnecessary details, the petitioner, who is a dependent of the late Jaikrishna Bhardwaj, applied for compassionate appointment, inasmuch as Bhardwaj's untimely demise had plunged the family into a grave financial crisis. Again, eschewing recapitulation of all that litigation that the petitioner had to undertake to enforce a consideration of her claim to compassionate appointment, suffice it to say, that the petitioner's claim was rejected by the impugned order dated 17.12.2016 passed by the DIOS, Aligarh.
5. Aggrieved, this writ petition has been instituted.
6. A perusal of the impugned order shows that at the tail-end of a long-winded narration of facts and the parties' case, the short reason assigned to disregard the petitioner's claim is that her husband's 'services had not been regularised', when he died on 06.01.2021. The way parties have taken stand before this Court in their pleadings, what appears from the expression that 'services of Bhardwaj had not been regularised' on the date of his death, is that he had not been granted a substantive and permanent appointment on the post of an L.T. Grade Teacher, until his death. In this regard, reference may be made to the stand of the DIOS in his supplementary counter affidavit dated 18.09.2020, where he has justified the order impugned, asserting :
"...... the then, District Inspector of Schools, Aligarh after hearing all concerned parties passed an order no. 7893-95/2016-17 dated 07.12.2016 stating therein that since the services of Late Jaikrishna Bhardwaj were not regularized and there is no provision for giving any service benefits to the dependents of temporary/non regularized employee, as such the petitioner, Priti Sharma was not given any specific benefit of the dependents of deceased employee and her representation has been rejected accordingly. ....."
7. Next, following the aforesaid assertion, the DIOS has made a reference to the provision of Section 33G of the Uttar Pradesh Education Service Selection Boards Act, 19825 quoting the provision in extenso. There is then an assertion in the following terms carried in Paragraph No. 11 of the counter affidavit under reference :
" The aforesaid Government Order is implemented since 22.03.2016 whereas Shri Jaikrishna Bhardwaj died on 06.01.2021 and at the time of issuance of the aforesaid Government Order, husband of petitioner, Jaikrishna Bhardwaj was not in service, as such there is no question of regularizing of his services. Since at the time of death Jaikrishna Bhardwaj, his services were not regularized, as such his dependent (petitioner) is not entitled for any relief under the provisions of Dying in Harness Rules. "
8. It is not the respondent's case that the petitioner's husband had been appointed or permitted to function on the post of an L.T. Grade Teacher with the College dehors the Rules. Rather, it is acknowledged that he was appointed against a short-term vacancy caused by the ad-hoc promotion of Mahesh Chandra Kansal to the post of a Lecturer, in accordance with Paragraph 2 of the Removal of Difficulties (Second) Order. It has also been acknowledged that after Kansal's retirement, upon the vacancy whereagainst the petitioner was appointed turning substantive, his salary was stopped for a short while, but the financial approval to his appointment was restored by the DIOS, under orders of the State Government and the Deputy Director of Education, permitting the petitioner to continue on a temporary basis, until a regularly selected candidate from the Commission/Board joined. It is in terms of the aforesaid appointment and tenure that the petitioner's husband was employed, when he died on 06.01.2012.
9. It is vehemently argued by Mr. Sharad Chandra Upadhyay, the learned State Law Officer appearing for the respondents, that a teacher, unless he is substantively appointed to a post, the benefit of a consideration for appointment under the Dying in Harness Regulations is not available to his dependents.
10. Learned Counsel for the petitioner, Mr. Arvind Kumar Singh, on the other hand, submits that a substantive appointment, in the sense of a permanent appointment, is not what is envisaged under the Regulations 103 - 107 of Chapter III of the Regulations, framed under the Act of 1921. He urges that all that is envisaged under the Regulations last mentioned is that the deceased-employee, serving in a recognised and aided institution as a Teacher or as a Class III employee, should be one who has been appointed in accordance with the Rules. It is not necessary that he should be permanently appointed to a substantive post.
11. I have considered the rival submissions made by the learned Counsel for both parties. A dependent of a deceased employee of an aided and recognised Intermediate College is entitled to a consideration for compassionate appointment, by virtue of Regulation 103 of Chapter III of the Regulations framed under the Act of 1921. It would, therefore, be profitable to refer to the aforesaid regulation. It is quoted in extenso :
"103. इस विनियमावली में दी गई किसी बात के होते हुए भी जहाँ किसी मान्यता प्राप्त, सहायता प्राप्त संस्था का अध्यापक या शिक्षणेत्तर कर्मचारी वर्ग के किसी कर्मचारी की, जो विहित प्रक्रिया के अनुसार नियुक्त किया गया हो, सेवा काल में मृत्यु हो जाये, तो उसके कुटुम्ब के एक सदस्य को, जो 18 वर्ष से कम आयु का न हो, प्रशिक्षित स्नातक की श्रेणी में अध्यापक के पद रूप में या किसी शिक्षणेत्तर पद पर, यदि वह पद के लिये विहित अपेक्षित शैक्षिक प्रशिक्षण अर्हताये, यदि कोई हों, रखता हो और नियुक्ति के लिये अन्यथा उपयुक्त हो, नियुक्त किया जा सकता है:
स्पष्टीकरण- इस विनियम के प्रयोजनार्थ "कुटुम्ब का सदस्य" का तात्पर्य मृत कर्मचारी की विधवा/विधुर, पुत्र, अविवाहित या विधवा पुत्री से होगा।
टिप्पणी- यह विनियम और विनियम 104 से 107 तक उन मृत कर्मचारियों के संबंध में लागू होंगे जिनकी मृत्यु 1 जनवरी, 1981 को या उसके पश्चात् हुई हो।"
12. The opening words of this Regulation show that it carries a non-obstante clause, giving it an overriding effect vis-à-vis other Regulations framed under the Act. The right created under the Regulation is attracted only in the case of a Teacher or Class-III employee, who dies in harness. It further requires that such teacher or employee should be employed with an institution, which is recognised under the Act of 1921 and in receipt of Government grant-in-aid. The next requirement is that the teacher or the employee concerned should have been appointed according to the prescribed procedure. The precise words used in the Regulations are : "Jo vihit prakriya ke anusar niyukt kiya gaya ho". This would translate in English to read : "Who has been appointed according to the procedure prescribed". There are other conditions then to be satisfied, regarding the dependent to be a person above the age of 18 years and holding the prescribed educational and training qualifications, if any, prescribed for the post to which he/she is appointed. Here, there is no quarrel about the petitioner's qualifications, to be appointed to one or the other posts envisaged under Regulation 103. At least, this issue has not arisen so far. The petitioner's candidature has been rejected because in the opinion of the DIOS, the services of the petitioner's deceased husband had not been regularised until his death. Now, what the DIOS means by his opinion that the services of the petitioner's deceased husband were not regularised, is no more than this, that he had not been permanently appointed to the substantive post, against which he was functioning, in a temporary capacity, till a regularly selected candidate by the Commission/Board joined. The fact that the petitioner's husband would have been regularised under Regulation 33G, if he had continued in service, or to express the more macabre side of it, stayed on in this mortal world until 22.03.2016, when Section 33G was inserted by U.P. Act 13 of 2016, seems not to be much disputed.
13. To the understanding of this Court, what Regulation 103 envisages is the appointment of the deceased teacher or Class III employee made in accordance with Rules prescribed; it does not speak about the appointment being substantive, or, more particularly, permanent. A temporary employee can also be appointed and, in fact, ought to be appointed in accordance with the Rules prescribed against a substantive post. The position would be different, if the post against which the employee is appointed, in accordance with Rules prescribed, is not substantive, but a temporary vacancy, where the some regular incumbent holds lien. If that were the case, a temporary or stop-gap appointment of an incumbent on a post that is temporary in nature, may not be within the scope of Regulation 103, affording the dependent of a teacher or employee appointed against a temporary vacancy, to claim compassionate appointment. Therefore, on the plain terms of the Statute, it is evident that where an employee is appointed according to the Rules prescribed against a vacancy that is substantive, and dies in harness, his dependents would be entitled to apply under Regulation 103. It would be reading something more into the Statute to infer that the employee or teacher also ought to be substantively appointed or on a permanent tenure. If that were the intention of the Statute, words to that effect would have been employed, and not ones that fall short of requiring the deceased employee to be permanently or substantively appointed.
14. The appointment of the petitioner's deceased husband was made initially on 28.07.1995, in the short-term vacancy of an L.T. Grade Teacher, caused on account of an ad-hoc promotion of the incumbent to the post of a Lecturer. The DIOS, while granting financial approval to the petitioner's husband, initially appointed vide order dated 13.12.1996, has acknowledged the appointment to be one made in accordance with Paragraph 2 of the Removal of Difficulties (Second) Order, issued under the Act of 1982. It was, therefore, an appointment that, from the inception, was one made in accordance with the Rules prescribed. The appointment of the petitioner's husband, therefore, cannot be one said to be made dehors the Rules. No doubt, upon the promotee's retirement from service on 30.07.1997, the short-term vacancy was converted into a substantive one, and the salary of the petitioner's husband was stopped for the month of July, 1997. But, admittedly, he, in accordance with the Rule then in force, was permitted by the State Government and the Deputy Director of Education, vide orders dated 27.02.1999 and 08.03.1999 to continue in service until a regularly selected candidate by the Commission/Board joined.
15. Learned Counsel for the petitioner has referred to the Full Bench decision of this Court in Jahaj Pal v. District Inspector of Schools, Muzaffarnagar and Another6 to submit that the petitioner's husband having been appointed in accordance with Rules, that is to say, Paragraph 2 of the Removal of Difficulties (Second) Order, he was entitled to a consideration of his candidature for a substantive and permanent appointment. The decision in Jahaj Pal (supra) expressly makes it inapplicable to the rights flowing from Sections 21-C, 33-D, 33-E, 33-F and 33-G of the Act of 1982. In this regard, Paragraph No. 208 of the report in Jahaj Pal is eloquent. It reads :
208. We do not propose to expand our observations in respect of subsequent provisions made for substantive appointment/absorption namely, Sections 21-C, 33-D, 33-E, 33-F and 33-G, since those issues are not necessary to examine to answer the questions referred to us.
16. For one, the decision in Jahaj Pal was about the right of an ad-hoc appointee, appointed against a short-term vacancy, where the appointment was subsequently converted into a substantive vacancy. It was answered in favour of the teacher continuing in service, till his candidature was considered in accordance with the provisions of Section 33B of the Act of 1982. The said decision was about the rights of a teacher so appointed to continue in service and relates to a different time period of appointment, against a short-term vacancy. The rights there relate to the employee himself to continue in employment, who was appointed as an L.T. Grade Teacher in a short-term vacancy, in accordance with the Removal of Difficulties (Second) Order, on or before 14.03.1991 and his rights were governed by Section 33B of the Act of 1982. So far as the employee himself is concerned, the decision in Jahaj Pal relates to a different period of time, regarding appointment where rights are governed by Section 33B. The case here relates to a much later period of time, where the legislature had amended the Statute to take into account appointments made in accordance with Removal of Difficulties (Second) Order against a temporary vacancy, that subsequently turned permanent. But, those are not the issues that would arise for consideration in the present case. Here, the only issue is about what Regulation 103 (supra) envisages, where it says that the deceased employee or teacher should have been appointed in accordance with the Rules prescribed. Jahaj Pal is not an authority on the said question.
17. Mr. Upadhyay, the learned State Law Officer appearing for the State, on the other hand, has relied on a Full Bench decision of this Court in Pawan Kumar Yadav v. State of U.P. & Others7. The decision of the Full Bench in Pawan Kumar Yadav (supra) was about the right to compassionate appointment of dependents of daily wagers and work-charged employees, employed in connection with the affairs of the State Government. Two questions were considered by the Full Bench, which read :
1. Whether a daily wager and work charge employee, employed in connection with the affairs of Uttar Pradesh, who is hot holding any post whether substantive or temporary is a 'Government Servant' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974?
2. Whether the judgement in Smt. Pushpa Lata Dixit Vs. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi Vs. State of U.P. (Writ Petition No. 24231 of 1998 decided on 02.03.1998); State of U.P. Vs. Maya Devi (Special Appeal No. 409 of 1998); Santosh Kumar Misra Vs. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615; and Anju Misra Vs. General Manager, Kanpur Jal Sansthan, (2004) 1 UPLBEC 201, giving benefit of compassionate appointment to the dependents of daily wager and work-charge employees, have been correctly decided ?
18. These were answered against the employee in the following terms :
26. On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra), we answer the questions posted as follows :-
1. A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a 'Government servant' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974, and thus his dependents on his death in harness are not entitled to compassionate appointment under these Rules.
2. The judgements in Smt. Pushpa Lata Dixit Vs. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi Vs. State of U.P. (Writ Petition No. 24231 of 1998 decided on 02.03.1998); State of U.P. Vs. Maya Devi (Special Appeal No. 409 of 1998); Santosh Kumar Misra Vs. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615; and Anju Misra Vs. General Manager, Kanpur Jal Sansthan, (2004) 1 UPLBEC 201 giving benefit of compassionate appointment to the dependents of daily wage and workcharge employee have not been correctly decided.
19. The decision in Pawan Kumar Yadav, no doubt, is one that relates to the dependent's right to compassionate appointment, in case of an employee dying in harness, but the same is of little relevance. The decision relates to interpretation of Rule 2(a) of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 19748. Rule 2(a) last mentioned carries a very elaborate definition of as to who would be a government servant. Mr. Upadhyay has sought to rely on this decision by reference to the interpretation of the words "regularly appointed" by their Lordships of the Full Bench, occurring in Rule 2(a) of the Rules of 1974. He has sought to draw an analogy of what "regularly appointed" would mean in the context of the entitlement to compassionate appointment under Regulation 103, framed under the Act of 1921. Rule 2(a) of the Rules of 1974 reads :
(a) "Government servant" means a Government servant employed in connection with the affairs of Uttar Pradesh who-
(i) was permanent in such employment; or
(ii) though temporary had been regularly appointed in such employment;or
(iii) though not regularly appointed, had put in three years' continuous service in regular vacancy in such employment.
Explanation.-"Regularly appointed" means appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be;
(b) "deceased Government servant" means a Government servant who dies while in service;
(c) "family" shall include the following relations of the deceased Government servant:
(i) Wife or husband;
(ii) Sons;
(iii) Unmarried and widowed daughters;
(d) "Head of Office" means Head of Office in which the deceased Government servant was serving prior to his death.
20. The principle on which the decision of their Lordships in Pawan Kumar Yadav has turned, is adumbrated in Paragraph Nos. 23, 24 and 25 of the report. These read :
23. The regular need of work, of which presumption has been set to arise after working for long number of years and the principles of legitimate expectations, would not mean that there was a regular vacancy. The word 'regular' vacancy has not been defined but that a distinction must be made between a need of regular employees, and the existence of regular vacancies. In Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court said; 'indisputably the services of the deceased had not been regularised. in both the cases the writ petitions were filed but no effective relief thereto had been granted. In the case of late Leeladhar Pandy, allegedly he was drawing salary on regular scale of pay. that may be so but the same would not mean that there existed a regular vacancy".
24. The Supreme Court further went on to explain in para 18 to 20 as follows:-
"18. Indisputably having regard to the equality clause contained in Articles 14 and 16 of the Constitution of India whether the appointment is in a regular vacancy or not is essentially a question of fact. Existence of a regular vacancy would mean a vacancy which occurred in a post sanctioned by the competent authority. For the said purpose the cadre strength of the category to which the post belongs is required to be taken into consideration. A regular vacancy is which arises within the cadre strength.
19. It is a trite law that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance of the constitutional scheme of equality. In view of the explanation appended to Rule 2(a), for the purpose of this case we would, however, assume that such regular appointment was not necessarily to be taken recourse to. In such an event sub-clause (iii) of clause (a) as also the explanation appended thereto would be rendered unconstitutional.
20. The provision of law which ex facie violates the equality clause and permits appointment through the side door being unconstitutional must be held to be impermissible and in any event requires strict interpretation. It was, therefore, for the respondents to establish that at the point of time the deceased employees were appointed, there existed regular vacancies. Offers of appointment made in favour of the deceased have not been produced."
25. In General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court considered and interpreted the expression 'regular vacancy' in respect of same Rules namely U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974. The judgement of the Apex Court interpreting the same Rules and deciding the questions posed before us squarely covers question No.1, in favour of the State and is binding on the High Court.
(emphasis by Court)
21. It is apparent that what their Lordships held is that the existence of a regular vacancy, against which the deceased government servant was appointed in accordance with the procedure prescribed, was a sine qua non for his dependents to claim a right to compassionate appointment. A distinction was drawn between the need for regular employment and the existence of a regular vacancy, under the Rules of 1974. Therefore, the long continuance of the deceased employee as a daily wager or under the work-charged establishment, but not against a regular vacancy, was held not to entitle his dependents to claim consideration for compassionate appointment.
22. Here, there is no quarrel that there was a regular vacancy to begin with, albeit short-term, against which the petitioner's late husband was appointed in accordance with the Rules. He was appointed, to be emphasized, in accordance with Paragraph 2 of the Removal of Difficulties (Second) Order. That he was so appointed, is a fact, which the DIOS has acknowledged in his order dated 13.05.1996, granting financial approval to the appointment. He was then permitted by the State Government, upon the vacancy turning permanent, to continue till a regularly selected candidate by the Commission/Board joined. The petitioner's husband died in harness, while continuing on those terms. It cannot, therefore, be said that the appointment of the petitioner's husband was one not made in accordance with the Rules prescribed, as envisaged under Regulation 103 of Chapter III of the Regulations framed under the Act of 1921. It is, by no means, an appointment dehors the Rules. Also, it is an appointment against a substantive vacancy, though not one that conferred a permanent tenure upon petitioner's deceased husband. It is also not the respondent's case that the appointment of the petitioner's deceased husband was one not made in accordance with the Rules prescribed. That is not the case urged either in the impugned order or the stand taken before this Court in the counter affidavit. All that the respondents say, to deny appointment to the petitioner, is that her husband was not appointed in a substantive capacity to the post that is admittedly substantive. They do not say that he was not appointed in accordance with the Rules prescribed.
23. In the opinion of this Court, therefore, the petitioner's case makes her eligible for a consideration of her candidature for compassionate appointment under Regulations 103 - 107 of Chapter III of the Regulations framed under the Act of 1921. This being the position under the law, equity also requires the petitioner's case to be considered. This is so because the petitioner's husband served the College continuously from 1995 to 2012, until he died. In case he had continued in service, possibly, he would have been considered for substantive appointment and granted one in terms of Section 16G of the Act of 1982, which came into force w.e.f. 22.03.2016. His untimely death cut short that possibility. No doubt, this does not create a legal right in favour of the petitioner to receive a consideration of her candidature on that ground, but that legal right is established under the terms of Regulation 103, as already said.
24. The equity, therefore, that arises in favour of the petitioner is that her family have plunged into poverty on account of the sudden demise of her husband and her circumstances have been detailed in ample measure, that require the family to be salvaged. It is on the aforesaid parameters, therefore, that the petitioner's right to be considered for compassionate appointment must be evaluated by the DIOS-respondent.
25. In the result, this petition succeeds and stands allowed. The impugned order dated 07.12.2016 passed by the DIOS, Aligarh is hereby quashed.
26. Let a writ of mandamus issue, commanding the DIOS, Aligarh to consider the petitioner's case for compassionate appointment in accordance with law and remarks in this judgment, within a month of receipt of a copy of this judgment.
27. Let this order be communicated to the DIOS, Aligarh by the Registrar (Compliance).
Order Date :- August the 3rd, 2021 I. Batabyal