JUDGMENT
Sudhir Agarwal, J.
1. Both these writ petitions are connected with each other and therefore, as agreed by the learned Counsel for the parties, namely, Sri Vinod Sinha and Sri V.S. Gupta, holding brief on behalf of Sri Ashok Khare and learned Standing Counsel, have been heard together and are being decided by this common judgment at the stage of admission under the Rules of the Court.
2. Writ petition No. 42092 of 2005 (hereinafter referred to as the first petition’) has been filed by the Committee of Management, Late Pt. Laxmi Chand Paliwal Inter College, Ingohata, Hamirpur (hereinafter referred to as ‘the College’), seeking a writ of certiorari quashing the order dated 6/7th February 2004, passed by respondent No. 2 Basic Shiksha Adhikari, Hamirpur, appointing respondent No. 3 Diwakar Singh as Assistant Teacher under Dying in Harness provisions pursuant to the Government Order dated 31st January 1997 and further a writ of manadamus has been sought directing respondent No. 2 not to make payment of salary to the respondent No. 3.
3. Civil Misc. Writ Petition No. 51388 of 2005 (hereinafter referred to as ‘the second petition) has been filed by Sri Diwakar Singh against the order dated 1.7.2005 passed by the Principal of the College seeking his explanation on the ground that he is not making attendance register available and also a mandamus commanding the respondents not to interfere in his working as Assistant Teacher in the College and to pay his salary regularly.
4. The facts in brief as stated in the first writ petition are that the College is a recognized Intermediate College under the provisions of U.P. Intermediate Education Act 1921 (hereinafter referred to as “the 1921 Act”)and being in grant in aid for the purpose of payment of salary, the same is being paid from the State exchequer. The father of respondent No. 3 was working as Assistant Teacher in the College which at that time was a Junior High School, and died on 6th August 1986. Sri Diwakar Singh respondent No. 3 for the first time, submitted an application on 6th February 2004, claiming compassionate appointment in pursuance whereto the District Basic Education Officer, Hamirpur passed order on the same day, i.e. 6th February 2004 granting him compassionate appointment in the College which was communicated to the petitioner on 7.2.2004. Against the aforesaid appointment, the petitioner Committee of Management made a representation before the District Basic Education Officer on 11th April 2004 and 4th April 2005 but he did not take any action thereon, whereafter the writ petition was filed seeking a manadamus commanding respondent No. 1 to decide the representation dated 1lth April 2004 and not to make any payment of salary to respondent No. 3. By means of an amendment application a prayer was added seeking a writ of certiorari for quashing the order dated 7th February 2004 whereby the respondent No. 3 was appointed on compassionate basis. Despite time having been granted to respondents 1 and 2 no counter affidavit has been filed on their behalf. However, respondent No. 3 has filed counter affidavit to which the petitioner Committee of Management has also filed rejoinder affidavit. Respondent No. 3 Diwakar Singh has said that the College has been granted recognition at the level of High School and Intermediate without any financial assistance (Vittavihin) and only upto Junior High School the College is recognized and is in grant-in-aid. Hence, for the purpose of payment of salary the provisions of U.P. Junior High Schools (Payment of Salary to Teachers and other Employees) Act, 1978 (hereinafter referred to as ‘1978 Act’) are applicable. His father, late Jagran Singh died on 6th August 1986 leaving his widow and two minor sons including respondent No. 3 whose date of birth is 8th March 1982. The second son is elder to respondent No. 3. Earlier, he applied for compassionate appointment as a Class III employee, i.e., for the post of clerk but the same could not be granted for want of vacancy. Thereafter the respondent No. 3 applied for compassionate appointment as a Teacher after obtaining graduate degree in the year 2003 which was allowed by the District Basic Education Officer, Hamirpur and respondent No. 3 was appointed as Assistant Teacher in Primary Section of the College vide order dated 6/7th February 2004. Pursuant to the aforesaid order the Committee of Management also issued an appointment letter dated 6th May 2004 which was subsequently modified by order dated 21st May 2004 appointing him as untrained Assistant Teacher on the fixed pay of Rs. 2750/- in the College. The second writ petition has been filed by Sri Diwakar Singh who has been impleaded as respondent No. 3 in the first writ petition, seeking a writ of mandamus for payment of salary and also for a mandamus directing the respondents not to interfere in his functioning as Assistant Teacher in the College.
5. The fate of the second writ petition would depend upon the fate of the first writ petition. I, therefore, proceed to consider the first writ petition on merit. Admittedly, the father of the respondent No. 3 died in August 1986 and for almost 18 years, the family survive without any compassionate appointment. Moreover, prior to 1st January 1991 there appears to be no provision made for providing compassionate appointment in Junior High School and in this regard it appears that for the first time Government Order No. 2127/15-6-91-8(66)/90 was issued on 27th September 1991 , w.e.f. 1st January 1991. Certain clarifications in this regard were issued vide Government Order dated 31st January 1997, stating that one member of the family of the deceased employee who was working as Teacher or non-teaching staff in a pre-secondary school, shall be given appointment if he is 18 years and above and possesses requisite educational and training qualification. However, Explanation 2 of the aforesaid Government Order clearly provides that the aforesaid arrangement would be applicable to only those employees who have died on 1st January 1991 and thereafter and the application for compassionate appointment is made within five years from the date of death of such employee.
6. Sri Vinod Sinha, learned Counsel for the petitioner contended that after 18 years, the compassionate appointment could not have been granted to respondent No. 3 and it is patently illegal and inconsistent to the very object and purpose for which the provision of compassionate appointment has been made. He further submitted that since in the year 1986 there was no provision for providing compassionate appointment to the employees of Junior High School, the respondent No. 3 could not have been appointed under the Government Orders issued subsequently since the Government Orders are not retrospective. Lastly, he submitted that the appointment of Assistant Teacher is governed by the statutory Rules applicable to the Junior High School where a person for the post of Assistant Teacher must possess educational qualification of graduation and training certificate, namely, BTC/HTC or any other equivalent training. Respondent No. 3 did not possess any training certificate and therefore, was ineligible and could not have been appointed.
7. On the contrary, respondent No. 3 submitted that since the entire family continued in penury and his elder brother is still unemployed, his appointment on compassionate basis is valid and need no interference. Learned Standing Counsel also supported the order passed by the District Basic Education Officer and adopted the argument advanced on behalf of respondent No. 3
8. Before coming to other question as to whether there was any statutory provision applicable for compassionate appointment in Junior High School and respondent No. 3 possessed requisite qualification for such appointment, I propose to first consider the question as to whether the compassionate appointment after 18 years of the death of an employee could have been granted to a member of his family even if there would have been any provision for such appointment applicable to the College. The object and purpose of compassionate appointment is to provide assistance to the bereaved family of the deceased employee, who has suffered a shock and financial scarcity due to sudden demise of the sole bread-earner. Neither the provisions pertaining to compassionate appointment confer any status nor provide reservation of a vacancy as it is not a source of recruitment where under a person as and when becomes eligible may apply and claim appointment.
9. In the case of Umesh Kumar Nagpal v. State of Haryana and Ors. 1994 (68) FLR 1191 (SC), it was held that as a rule, in public service, appointment should be made strictly on the basis of open invitation of applications on merit. The appointment on compassionate ground is not another source of recruitment, but merely an exception to the aforesaid recruitment taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the Rules, Regulations or Administrative instructions taking into consideration the financial condition of the family of the deceased.
10. Again in Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. , the Apex Court observed as under:
The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earned which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both the ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provision, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds for the dependent of a deceased employee.
(emphasis added)
11. In Sanjay Kumar v. State of Bihar and Ors. , the Apex Court reiterated that the compassionate appointment is provided only to enable the family of the deceased employee to tide over sudden crises resulting due to the death of sole bread-earner who had left family in penury without any means of livelihood but it cannot be treated to be a reserved vacancy for the dependents of the deceased Government servant who died in harness.
12. In the case of Haryana State Electricity Board v. Krishna Devi 2002 LLJ 773 S.C., the Apex Court while reiterating the objective of compassionate appointment as laid down in the earlier cases further observed that the application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.
13. Recently in the case of Commissioner Public Instructions and Ors. v. K.R. Vishwanath 2005 (107) FLR 153, the Apex Court has observed as under:
The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit.
14. If the family has sufficient means to survive for years together and can take care of the minors who have turned into major after undergoing educational qualification etc. that itself would be evident to show that now the family is not in financial crises as it would have at the time of sudden demise of the deceased necessitating compassionate appointment at a late stage i.e. after several years.
15. In State of Manipur v. Mohd. Rajaodin , the Apex Court reiterated that the purpose of giving compassionate appointment is only to mitigate hardship caused to the family of the deceased on account of his unexpected death in service, only to alleviate the distress of the family but at a belated stage as these grounds are no more in existence, therefore, the employment cannot be claimed or provided.
16. Thus, in view of catena of decisions in the matter of compassionate appointment, some of which have been discussed and referred above, it is clear that the compassionate appointment cannot be claimed as a vested right. The term vested right has been considered and described by the Apex Court in the case of Mosammat Bibi Sayeeda and Ors. v. State of Bihar and Ors. wherein after referring to dictionary meaning in various dictionary, the Apex Court has observed as under:
Rights are vested when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest.
17. Thus, the vested right may arise from contract, statute or by operation of law. However, asking for compassionate appointment after attaining the majority by no stretch of imagination can be said to be a vested right.
18. Further, this Court cannot be oblivious of the fact that unemployment is a major problem in our country. Lacs and millions educated unemployed persons are wandering for employment and even for a single petty Class IV vacancy, hundreds and thousands apply which includes not only those who possess the minimum qualification of secondary level or less but even graduate and post-graduate. At times it has been seen that even persons having doctorate have applied for the lowest class of service i.e. Class IV. In such a situation, public employment must be available to eligible and suitable persons to be filled in by competition and all who are willing should be given an opportunity of consideration. Asking for a vacancy to be kept reserve so as to be filled-in future on the basis of notional extended distress to the family continuing for years together would amount to denial of such right of consideration to other similarly placed unemployed and destitute persons whose only faults is that their ancestors could not get the opportunity of employment and, therefore, they should also suffer the same misfortune. Compassionate appointment in fact has an element of an immediate help to the family of the deceased employee. The heirs in distress lacking sufficient and reasonable means to survive with some honour must request for such help immediately or within a reasonable time. To some extent, no doubt, it is a condition of service and the benefit available to employee in general but extension of such conditions of service to an unreasonable extent would or may erode the difference between valid and invalid and any such stretch may render the provision of the compassionate appointment to be judged on the anvil of Article 16 of the Constitution of India which confers right of equal opportunity in public employment to all persons. The Court cannot shut its eyes to the fact that still majority of people are continuing to be tiny, poor, starving little Indians and still are below poverty line. Their distress and penury appears to be ever lasting, as if they are bound to live in distress permanently. Their misery and destitute is not the result of sudden demise of the sole bread-earner but is caused by their fate and for the reason of non availability of employment. They are not in a position, even though they are alive, to earn two times simple bread what to talk of bread and butter. The distress of such persons is neither negligible nor can be ignored. In the pragmatic society, efforts had to be made to read and apply law wherever permissible which will extend an opportunity of equal consideration for public employment to public at large irrespective of their lineage ancestral hierarchy etc.
19. The same view has been taken by a Division Bench of this Court (of which I was also a member) in Abhimanyu v. State 2006(2) UPLBEC 1461. Recently, in State of J & K and Ors. v. Sajad Ahmad Mir the Apex Court has also held that the factum that the family survive for 15 years after the death of the employee is a relevant factor before considering the claim of compassionate appointment of the member of the family of deceased employee.
20. Learned Counsel for respondent No. 3 however placed reliance on a Division Bench judgment of this Court in Pushpendra Singh v. Regional Manager U.P.S.R.T.C. 2000(1) E.S.C. 448 (All); and single Judge judgments in Rupendra Singh v. Chief Engineer Hydro Electric, U.P. Power Corporation Ltd. Lucknow and Ors. 2003(4) Education and Service Cases, 1841; Dharmendra Singh v. State of U.P. and Ors. (2005) 3 UPLBEC 2426 and Writ Petition No. 67492 of 2005, Prabhat Singh v. State of U.P. and Ors. decided on 25.10.2005.
21. I have gone through the aforesaid judgments. In Pushpendra Singh (supra) the father of the petitioner died on 31.8.1984 and at that time, he was minor. He attained majority on 12.12.1998 and applied for compassionate appointment on 23.2.1999 but the said application was rejected by the Regional Manager, U.P.S.R.T.C. vide order dated 30.6.1999 whereagainst the writ petition was dismissed by Hon’ble Single Judge in limine. The judgment of Hon’ble Single Judge was upheld by the Division Bench as is apparent from 6 of the said judgment. Thus this Court laid down the principle of law that after a long time appointment on compassionate basis cannot be claimed and therefore, the said judgment in my view does not help the respondent No. 3 at all.
22. In Rupendra Singh (supra), the Hon’ble Single Judge only directed the competent authority to pass order on the petitioner’s application seeking compassionate appointment and no principle of law has been laid down that such an appointment can be claimed after any length of time. The same is the position in Dharmendra Singh and Prabhat Singh (supra). Hence, in my view none of the aforesaid judgments lend any support to the respondent No. 3 to substantiate his claim for compassionate appointment after almost 18 years from the date of death of the deceased employee.
23. In the case in hand, the deceased employee died on 6th August 1986. At that time, the petitioner was merely four years and a few months of age. He became major in March 2000, i.e., after about 17 and odd years from the date of death of the deceased employee. Even if the contention of the petitioner is accepted that earlier he applied for compassionate appointment as Class III employee, i.e., for the post of clerk but the same was not granted for want of vacancy, it is understandable that even that application would have been submitted not earlier than 2000, i.e., after almost fourteen years from the date of death of the deceased employee. In my view, after such a long time, the claim for compassionate appointment could not have been considered since the very purpose of compassionate appointment would stand evaporated., i.e., the sudden financial crisis and distress prevailed in the family due to demise of the sole bread earner. In this view of the matter, the subsequent application submitted by the petitioner in 2004, i.e., after more that 18 years from the date of death of the petitioner’s father also could not have been considered and the District Basic Education Officer clearly erred in law in not only entertaining such application but passing order on the same date, appointing the petitioner as Assistant Teacher by ignoring all principles of law applicable to compassionate appointment which shows a totally reckless and illegal action on the part of the District Basic Education Officer. Lack of bona fide on his part in issuing the appointment letter in favour of the petitioner cannot be ruled out. In this view of the matter, by no stretch of imagination the order impugned in the writ petition passed by respondent No. 2 directing the petitioner to appoint respondent No. 3 on compassionate basis as Assistant Teacher in the College can be sustained and hence, it is liable to be quashed on this ground alone.
24. Now coming to the second question that there was no provision made for compassionate appointment in a Primary School/Junior High School in the year 1986, it is not disputed that the provision made by the Government Order dated 27th September 1991 was made effective only on 1st January 1991 and not earlier thereto. Sri Ashok Khare, Sr. Advocate, appearing for Diwakar Singh in his written argument placed reliance on a Government Order dated 23rd September 1981 in order to show that the provisions for compassionate appointment were made applicable with effect from 1.1.1981. However, a bare perusal of the said Government Order shows that the same is in respect to Secondary Schools and not for Primary Schools including Junior High School. In respect to the Junior High School learned Counsel for respondent No. 3 could not place before the Court any provision for compassionate appointment in the College, i.e., Junior High School applicable in 1986 or immediately thereafter and therefore, it cannot be said that in absence of any provision made for compassionate appointment, the respondent No. 2 was justified in allowing the respondent No. 3 to be appointed on compassionate basis in the year 2004 pursuant to the Government Order 27th September 1991
25. The third question relates to the qualification of respondent No. 3. Admittedly, the College being a recognized Junior High School, the provisions pertaining to conditions of recruitment of service made under the Basic Education Act, 1972 and are titled as the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Condition of Service of Teachers) Rules 1978 are applicable to this College. The minimum qualifications for appointment of Assistant Teacher of a recognized school are prescribed in Rule 4(1) thereof which may be reproduced as under:
4. Minimum qualification.- (1) The minimum qualification for the post of Assistant teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher’s training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Teaching)
(2) The minimum qualifications for the appointment to the post of Headmaster of a recognised school shall be as follows:
(a) A degree from recognised University or an equivalent examination recognised as such;
(b) A teacher’s training course recognised by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and
(c) Three years ‘ teaching experience in a recognised School.
26. Further Rule 5 prohibits any appointment in substantive capacity in a recognized school unless the incumbent possesses minimum qualification prescribed under the Rules recommended by the Selection Committee. Rule 5 is also reproduced as under:
5. Eligibility for appointment.- No person shall be appointed as Headmaster for Assistant Teacher in substantive capacity in any recognised school unless-
(a) he possesses the minimum qualifications prescribed for such post;
(b) he is recommended for such appointment by the Selection Committee.
27. Admittedly, respondent No. 3 is only a graduate and did not possess any training qualification. Knowing this fact respondent No. 2 sought to appoint him on temporary basis at fixed pay of Rs. 2750/- and consequently, the Management issued appointment letter appointing him as an untrained Assistant Teacher. However, 1978 Rules nowhere permits appointment of a person who does not possess the minimum requisite qualification. Learned Counsel for respondent No. 3 submitted that there are certain executive orders which provide for appointment of Assistant Teacher in Junior High School, though none has been placed before the Court. Moreover, it is well settled exposition of law that an executive order shall not override the statutory provision namely 1978 Rules. In this case, I have no hesitation in holding that respondent No. 3 being unqualified lacking minimum qualification could not have been appointed as Assistant Teacher in the college and his appointment is ex facie illegal and void ab initio.
28. Before parting, it would be appropriate to observe here that the facts of this case show that the District Basic Education Officer has not acted in a reasonable and bona fide manner in appointing respondent No. 3 after such a long time. This is a serious matter. Where an authority who is otherwise expected to ensure observance of law has acted in flagrant violation of the statute, the matter needs investigation into the conduct of the then District Basic Education Officer who has passed the order dated 6th February 2004 appointing respondent No. 3 as Assistant Teacher in the College on compassionate basis. Therefore, the Secretary, Basic Education, U.P., Lucknow is directed to get disciplinary’ proceedings conducted in this matter and find out as to in what circumstances, respondent No. 2 passed the aforesaid order and in case it is found that the same was passed for reasons other than bona fide, appropriate disciplinary action in accordance with law shall be taken against him. This exercise shall be completed by the Secretary, Basic Education within a period of six months from the date of receipt of a certified copy of this order and result shall be communicated to this Court through Registrar General.
29. In view of the aforesaid, writ petition No. 42092 of 2005 is allowed. The order dated 6/7th February 2005, Annexure-1 to the writ petition passed by District Basic Education Officer, Hamirpur is quashed and the appointment of respondent No. 3 is declared to be illegal and void ab initio, conferring no right or any benefit upon him on the basis thereof.
30. Since the very appointment of Sri Diwakar Singh petitioner has been held to be illegal, there is no question of granting any relief, hence the writ petition filed by him has to be dismissed. Accordingly, Writ Petition No. 51388 of 2005 is dismissed.
31. There shall be no order as to costs.
32. The Registrar General of this Court is directed to send a copy of this judgment to the Secretary, Basic Education, Government of U.P., Lucknow for information and compliance of the directions as contained above.