A.P. Sahi, J.@mdashThis petition has been filed challenging the order dated 9th August 2008 passed by the District Inspector of Schools Ballia whereby the post of Assistant Clerk in Janta Inter College, Nagra, Ballia has been offered to the Respondent No. 5 on compassionate basis. The Petitioner claims that he has been selected and appointed on the said post by the management/Prabandh Sanchalak which papers were forwarded to the District Inspector of Schools who has not disapproved the same, but while passing the impugned order has instructed the Prabandh Sanchalak that in the event any previous permission has been taken for selection and appointment on the said post, the same should be treated to have been cancelled.
2. Upon the petition being filed, an interim order was passed on 5th September 2008 and the parties were directed to maintain status quo. The result was that the Petitioner could not be paid salary, and he claims that even though he had joined the post, his pecuniary reimbursements were withheld.
3. Thereafter the Petitioner filed a second writ petition being Writ Petition No. 67174 of 2008 in which a direction was issued to the District Inspector of Schools to decide the matter with regard to the financial approval of the Petitioner. The petition was disposed of on 7th January, 2009 against which the Respondent No. 5 filed Special Appeal No. 108 of 2009 and the said order dated 7th January 2009 was set aside holding that the second writ petition filed by the Petitioner was not maintainable. However, liberty was given to the Petitioner to move an appropriate application in this petition for any further relief. Accordingly an amendment application has been filed which has been taken on record.
4. Sri C.B. Yadav assisted by Sri C.B. Gupta contends that the impugned order has been passed without cancelling the selection and appointment of the Petitioner which was justified and the Petitioner even otherwise was entitled to the benefit of reservation according to the Government Order dated 6th September 2000. He therefore submits that out of the four posts which are sanctioned in the institution two have been filled by promotion one by compassionate appointment and if the claim of the Respondent No. 5 is allowed then all the posts meant for direct recruitment stands reserved for compassionate appointees. He therefore submits that such a course was not permissible in law and therefore the institution rightly undertook steps for advertising the post to be filled up from amongst the reserved category. The Petitioner belongs to the OBC category and was fully entitled for being appointed on the said post. Sri Yadav submits that there is no error in the procedure of selection and therefore in the absence of any infirmity there was no occasion for the District Inspector of Schools to have offered the post to the Respondent No. 5 after the Petitioner had been selected on the post in question. The contention is that the District Inspector of Schools once having given permission to fill up the post by direct recruitment, there was no vacancy and the post could not have been offered to the Respondent No. 5 who had already been offered appointment on compassionate basis as a Class IV employee.
5. Learned Counsel for the Respondent No. 5 Sri Vinod Kumar Singh submits that the father of the Respondent No. 5 late Uday Bhan Singh was a Lecturer in the Institution on permanent basis and he died in harness on 24th May 2007. The Respondent No. 5 moved an application through his mother for appointment as a clerk in the Institution on a Class III post that became available with the retirement of one Vindhyachal Ram on 30th June 2007. The Principal of the Institution forwarded the said claim to the District Inspector of Schools Ballia and a reminder was thereafter sent for consideration. The claim of the Respondent No. 5 was considered by the District Inspector of Schools but he was offered an appointment as a Class IV post in the institution vide order dated 22.12.2007 on the recommendations of the District Level Committee dated 1.10.2007. The Respondent No. 5 had no knowledge of the said appointment and he made a request for appointment against the post of clerk for which he also filed Writ Petition No. 61157 of 2007. The said writ petition was disposed of on 13.12.2007 with a direction to the District Inspector of Schools to examine the grievance of the Respondent No. 5 and pass appropriate orders,
6. The aforesaid order was served on the District Inspector of Schools and instead the District Inspector of Schools proceeded to allow the Prabandh Sanchalak on 29th January 2008 to hold selections for the said post by offering it to the other backward category candidates. The said letter is however refuted by the Respondent No. 5. The Prabandh Sanchalak appears to have proceeded to hold selections on 24th February 2008 and selected the Petitioner on the post of clerk in the Institution. The said request was forwarded to the District Inspector of Schools which remained pending without any financial approval.
7. In the aforesaid circumstances, it is contended on behalf of the Respondent No. 5 that once the claim of the Respondent was pending consideration and a direction had been issued by this Court on 13.12.2007 for an order to be passed by this DIOS, then it was highly improper on the part of the District Inspector of Schools or the Authorized Controller to have initiated proceedings for holding selections by way of direct recruitment. It is contended that the entire procedure for holding fresh selections on the post of clerk is vitiated and was an exercise in futility.
8. Learned Standing Counsel submits that in the absence of any financial approval the Petitioner cannot claim any payment of salary and the matter has to be looked into by the District Inspector of Schools before any financial sanction is granted.
9. Having heard learned Counsel for the parties the Court finds that the Principal of the Institution Mr. Vijay Shanker Dwivedi has also filed a counter-affidavit supporting the cause of the Petitioner. It is to be noted that the same Principal had forwarded the claim of the Respondent No. 5 vide letter dated 10.8.2007. Thus, the stand of the Principal is somewhat placing his legs in two boats without having any authority in the matter inasmuch as the appointment is on the post of a clerk which is within the powers of the committee of management or the Prabandh Sanchalak Incharge.
10. The facts as disclosed demonstrate that the father of the Respondent No. 5 died in May 2007 and a post of clerk was fell vacant on 30th June 2007. The Respondent No. 5 promptly claimed the said post which claim was forwarded by the Principal of the Institution as noted above. The District Inspector of Schools placed it before the District Level Committee which took a decision to offer a Class IV post to the Petitioner without adverting to the aforesaid claim against a Class III post for which the Respondent No. 5 was qualified and eligible.
11. It was after the order dated 13.12.2007 passed in Writ Petition No. 61157 of 2007, that an order dated 22.12.2007 was issued to the Respondent No. 5 appointing him against a Class IV post. The Respondent No. 5 did not accept the said post and insisted on his request for being offered the post of clerk which had fallen vacant in the same Institution.
12. The aforesaid request in the opinion of the Court was justified as per the rights conferred under Regulations 101 to 107 of Chapter III of the regulations framed under the U.P. Intermediate Education Act, 1921. There is no bar in offering an appointment of a Class III post if it is available provided the candidate is qualified for the same. It is undisputed that the Respondent No. 5 is qualified to hold the post of clerk. In such a situation the District Inspector of Schools or the Prabandh Sanchalak ought to have considered the claim of the Respondent No. 5 against a Class III post before having proceeded to hold selections by way of direct recruitment. The advertisement issued and the selections held by the Prabandh Sanchalak were therefore an exercise to overreach the claim of the Respondent No. 5.
13. The District Inspector of Schools was therefore right in proceeding to pass orders on 8th August 2008 accepting claim of the Respondent No. 5. This was not a case where the Respondent No. 5 after having accepted any appointment had made a request for improvement of his status. His stand throughout was that he was qualified for the post of clerk and therefore he should be offered appointment commensurate to his qualification. The Respondent No. 5 has also stated in his counter-affidavit that as a matter of fact he did not have knowledge of the offer of appointment as a Class IV employee and therefore he filed the writ petition before this Court in which orders were issued on 13.12.2007 but the fact remains that the Respondent No. 5 never accepted or joined as a Class IV employee in the Institution. The exercises taken by the Prabandh Sanchalak to advertise the post and then to appoint the Petitioner was an exercise in futility and done in somewhat hot haste to defeat the claim of the Respondent No. 5. The District Inspector of Schools, therefore, rightly proceeded to pass the impugned order in the aforesaid background.
14. The submission of Sri Yadav on the issue of reservation is absolutely misplaced inasmuch as the Government Order dated 6th September 2000 was issued at a point of time when the posts of the reserved category were not being filled up and simultaneously posts were being filled up from amongst dependants of those who died in harness. The aforesaid Government Order nowhere says that a compassionate appointment shall be rejected even if the claim is justified and is permissible. The submission of Sri Yadav, therefore, does not hold water.
15. The question of applying reservation would start when the post has to be offered for direct recruitment through open selection. In the instant case if the claim of the Respondent No. 5 is accepted then no post was available for direct recruitment and once the post is not available there is no occasion to apply any reservation. Even otherwise the rule of reservation may not be available for being pressed into service keeping in view the law laid down by the Full Bench of this Court in the case of Heera Lal v. State of U.P and Ors. 2010 (6) ADJ 1.
16. The claim of the Respondent No. 5 was therefore deliberately diverted and a situation was created by the Prabandh Sanchalak which was impermissible in law which was not a bona fide exercise of power. The Government Order dated 6th September 2000 therefore is of no consequence in the present controversy.
17. Sri Yadav then contended that filling up of the post by a compassionate appointee would amount to 100% reservation in favour of claimants of compassionate appointment. Suffice it to say that compassionate appointments are not reservations. They are appointments under a beneficial piece of legislation to provide succour to the bereaved family. The regulations framed under the U.P. Intermediate Education Act, 1921 therefore create a right in favour of such a claimant which in the opinion of the Court has been rightly considered and crystallized in the impugned order dated 8.8.2008. The submission of Sri Yadav therefore cannot be countenanced.
18. It has then been contended that the selection of the Petitioner has not been cancelled and that he has joined in the Institution. The aforesaid argument has to be rejected outright in view of the law laid down by this Court in the case of Jagdish Singh v. State of U.P. 2006 (3) ESC 2055, which has clarified that it is only after approval is granted by the District Inspector of Schools that a letter of appointment can be issued. It is admitted to the Petitioner that there is no approval to his appointment by the District Inspector of Schools. In such a situation, the claim of appointment and continuance on the strength of any order issued by the Prabandh Sanchalak does not have any legal sanctity.
19. In view of the conclusions drawn hereinabove, no case is made out to interfere with the order dated 8th August 2008 as it does substantial justice between the parties.
20. The writ petition is accordingly dismissed. No order as to costs.
