JUDGMENT
D.P. Singh, J.
1. Heard counsel for the parties.
2. M.M. Ali Memorial Inter College, Kanpur is a duly recognized minority institution imparting education till the intermediate level but receives grant in aid only uptill the High School level. Father of respondent No. 4, Jamil Ahmad, who was working as a permanent clerk in the institution, died in harness on 12.1.2001. This vacancy of clerk was filled up by promoting one Syed Mehmood Ahmad creating a Vacancy on a post of peon, which was advertised by the Management on 2.2.2001 and the petitioner, along with others, applied in pursuance thereof. After following the due procedure, petitioner was selected and papers were forwarded to the District Inspector of Schools on 21.5.2001, he approved the appointment of the petitioner on 22.8.2001 and the petitioner joined the institution on 24.8.2001.
3. Upon the death of his father, the respondent No. 4,applied for compassionate appointment on 20.1.2001 whereupon he was given appointment by the educational authorities on a class IV post in Christ Church College on 7.11.2001 but he was not allowed to join there, thus he approached the educational authorities. He represented his case before the Joint Director whereupon the District Inspector of Schools vide order dated 16.1.2002 cancelled the appointment of the petitioner and by amending the order dated 7.11.2001, appointed him place of the petitioner. Both these orders are impugned in the present petition.
4. Learned Counsel for the petitioner has firstly urged that both the orders dated 16.1.2002 and the amended order dated 7.11.2001 were passed on the representation of the respondent No. 4 against the interest of the petitioner without affording him any opportunity of hearing and thus are void. He has relied upon a Division-Bench decision of this Court rendered in the case of Mohan Lal Sharma v. District Inspector of Schools 1982 U.P.L.B.E.C 213. In the same breath he has submitted that the District Inspector of Schools had no power to recall or review his order, and, on this score also, he contends that the orders are vitiated. In support, he has relied upon another Division Bench decision of this Court rendered in the case of Radhey Shyam and Ors. v. District Inspector of Schools 1977 A.L.J. 451.
5. So far as the ratio in the two cases are concerned, no exception can be taken as that is the law which holds good even till date but, it has to be examined whether the petitioner has any vested right which has been impinged upon by the two orders.
6. The procedure for appointment to a class IV post is provided in the scheme of Regulation 101 to 107 of Chapter III of the Regulations framed under the U.P. Intermediate Act. Regulation 101 mandates that any vacancy on the post of any non-teaching staff of a recognized institution cannot be filled up except with the prior approval of the Inspector. Regulation 102 obligates the appointing authority to intimate the Inspector about any vacancy to be caused by retirement, three months before the retirement, and in case of vacancy by death, within seven days. Regulation 103 stipulates that where any incumbent dies in harness, one member of his family would be appointed in his place if he fulfills the given requirements. However, this right to compassionate appointment was not applicable to minority institutions till 8.8.2001. Under Regulation 104 the management has to send a report to the Inspector in case of death in harness disclosing certain information to be entered in the relevant register at the inspectorate. Any member of the family of the deceased employee may apply for compassionate appointment to the respondent under Regulation 105, which would be considered by a committee and on its recommendation the management is obliged to issue an appointment letter. If there is no vacancy in the institution, the selectee can be appointed in any other institution under Regulation 106 and the management has to inform the inspector about the appointment within one month under Regulation 107.
7. The aforesaid power of the Inspector for granting approval for any appointment was vested in the Regional Committee headed by the Regional Joint Director by a Government Order dated 19.12.2000. The District Inspector of Schools was concious of this fact and that is why in the alleged approval order dated 22.8.2001 he has specifically mentioned that payment of salary to the petitioner would only be released after approval is granted by the Regional Committee. Thus, the position of the petitioner remained that of a lame duck and the order dated 22.8.2001 did not cloath him with any vested right. Once it is held that the petitioner had no vested right, the recall or review of the orders had no legal affect on the petitioner and lack of opportunity before passing the order would not render it illegal or void.
8. Lastly, it is urged that the vacancy occurred on 13.1.2001 when provision for compassionate appointment was not applicable to minority institution and since the amendment incorporating it is not retrospective, the respondent No. 4 could not reap any benefit therefrom.
9. The proviso to Regulation 103 which incorporates the benefit of compassionate appointment did not apply to minority institutions prior to 9.8.2001 when the exception was deleted. There is nothing In the said amendment or the Government Order which Indicates Its retrospectivity and being a piece of subordinate legislation, It cannot commence from a date prior to its incorporation, unless, the Rule under which it is framed clothes the authority with such power. There does not appear any such power and neither has it been pointed out by the respondent. Thus, on the date when the vacancy occurred, i.e. 13.1.2001, the respondent No. 4 had no right to claim any compassionate appointment. Further, even on the date when the vacancy was advertised, viz 2.2.2001 (which has not been denied specifically by the respondents) the benefit of compassionate appointment was not applicable to minority Institution. SO on the date when the process of recruitment was Initiated, respondent No. 4 had no right to be considered or conferred any privilege of compassionate appointment. He could have applied like any other ordinary candidate, but, as it appears, he did not choose to do so. Once the recruitment process had begun, any change in the regulations could not affect it. But in this case even the selection was completed and papers were transmitted for approval on 21.5.2001 before the benefit of compassionate appointment was extended to minority institutions on 9.8.2001. It is by now well recognized principle in service jurisprudence that once the ball of recruitment is set rolling, one cannot change the rules of the game midway.
10. However, the counsel for the respondent contends that no appointments can be made without the prior approval, therefore mere selection and transmission of papers will not affect the power of the Committee in applying the law in vogue at that time. First, it has to be seen what is the power of the Committee and what are the parameters it can apply. The power of the committee, especially in the case of minority institutions, is only to see whether the due procedure of recruitment has been followed and whether the incumbent possess the requisite qualification and if the two criteria are satisfied, it cannot withhold the approval. Prior approval does not mean that it can rely upon any subsequent changes in law even though the recruitment process adhered to the, law in vogue at that time when it was undertaken. Giving this liberty to the Committee to take into account subsequent changes would lead to hazardous results and majority of the recruitments would never be completed considering the quixotic manner in which amendments, whether by G.O or otherwise, are made these days.
11. The only ground given in the impugned order is that no direct recruitment could be made on a vacancy when a compassionate appointee is available. It does not stand to reason. The stage at which this has to be examined is the date of vacancy or at least the date of setting in motion the process of recruitment by advertisement or Otherwise and on that date there was no reservation for the family of a deceased employee in minority institutions. Therefore, the ground of refusing or cancelling the approval cannot be sustained.
12. Let us now examine the position of respondent No. 4.
13. The State Government vide its order dated 9.8.2001 deleted the proviso to Rule 103 and the result was that from that date the benefit of compassionate appointment stood extended to the minority institutions also. The note appended to Rule 103 provides as under.
103 Notwithstanding anything contained In these regulations, where any teacher or employee of ministerial grade of any recognised, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less than eighteen years in age, can be appointed on the post of teacher in trained graduate grade or on any ministerial post, if he possesses prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment:
Provided that anything contained in this regulation would not apply to any recognised aided institution established and administered by any minority class.
Explanation- For the purpose of this regulation “member of family” means widow or widower, son, unmarried or widowed daughter of the deceased employee.
Note- This regulation and Regulations 104 to 107 would apply in relation to those employees who have died on or after 1st January, 1981.
14. Meaning thereby that the family of a deceased employee who dies in harness would be entitled to claim compassionate appointment if the death occurred on or after 1.1.1981. The father of respondent No. 4 died on 12.1.2001, therefore, he had a right to be considered for compassionate appointment under the amended Rule 103 and the Scheme of Rule 104 to 107. The Management was conscious of this legal position and that is why it transmitted Forms A, B and E to the Dl.O.S. on 28.8.2001 and recommended his appointment. In pursuance of which he was approved for appointment in the Christ Cherch College. Till this stage the educational authorities were well within their right under the law.
15. The action of displacing the petitioner cannot be justified. As already held above, neither the Committee nor the Joint Director could have refused to grant approval to the appointment of the petitioner especially when the petitioner was selected in accordance to the law then in vague in the vacancy created due to promotion of the incumbent. If there was no vacancy on any other post in the institution which could be filled up by respondent No. 4, under the scheme, he could be appointed in any other institution in the district where a suitable vacancy existed or came into being after 9.8.2001. If no such vacancy was available, he could have been appointed on a supernumerary post in the institution in viow of proviso to Rule 106.
16. For the reasons above, the order dated 9.1.2002 is quashed to the extent it creates a right in favour of respondent No. 4 in regard to the vacancy on which the petitioner was selected. To that extent the order dated 16.1.2002 communicating the reasons for rejecting the claim of the petitioner is also quashed. As no other ground for disapproving the selection of the petitioner has been brought forth, his approval for appointment stands granted. The respondent No. 4 shall be treated to be on a supernumerary post till he is adjusted in any other sanctioned post.
17. In terms of the aforesaid order, the petition stands allowed but no order as to cost.