# (2011) 3 ILRA 1120

- **Citation:** (2011) 3 ILRA 1120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-14
- **Case number:** Civil Misc. Writ Petition No. 51649 of 2011
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2011-3-ilra-1120-42052
- **Pages:** 3

## Headnote

U.P. Intermediate Education Act 1921chapter III Regulation 101 to 106-power
of
DIOS
to
appointment
on
compassionate
ground-R-4recommended
for
appointment
on
compassionate ground by the regional
committee-DIOS
to
ensure
the
appointment
and
functioning
of
compassionate
appointee
passed
impugned
direction-challenged
by
management-held-although
DIOS
can
not visit in institution to ensure joining
of such appointee-but in furtherance for
enforcement
of
lawful
order-any
interference by writ court amounts to
perpetuating
illegal
action
of
management-petition dismissed.

Held: Para 10

So far as the insistence of the District
Inspector of Schools to ensure joining of
the
compassionate
appointee
is
concerned,
this
Court
is
of
the
considered opinion that the District
Inspector of Schools may not have acted
strictly in accordance with law even then
the action taken is in furtherance of
interest of justice and for enforcing
lawful orders. Any interference with the
order of the District Inspector of Schools
will amount to perpetuating an illegal
action of the management. Power under
Article 226 of the Constitution of India is
not to be exercised in favour of the
Committee of Management, which want
to act illegally and insists that other
courses open to law should have been
adopted with sole purpose to delay the
joining
of
the
lawfully
appointed
candidate.
Case law discussed:
(2003) SCC 669; AIR 2008 SC 1272; AIR 1977
SC 1720; (1998) 2 UPLBEC 1310

## Text

1120 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
made by the learned counsel for the
petitioner makes out any ground for
quashing
the
order
of
the
State
Government dated 25/7/2011.

34. We, however, observe that the
State Government while passing the final
order under Section 48 (2) of the Act,
shall not be influenced by any of the
observations made by us in this order
which observations have been made only
for examining the issue of issuing notice
under Section 48(2) of the Act, 1916 and
cessation of financial and administrative
powers.

35. The writ petition is dismissed
subject to observations as made above.

36. No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2011

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 51649 of 2011

C/M
Seth
Basudeo
Sahai
Inter
College,Kannauj

 ...Petitioner
Versus
State of U.P. and others

 ...Respondents

Counsel for the Petitioner:
Sri K. Shahi

Counsel for the Respondents:
Sri Mohammad Shariq
C.S.C

U.P. Intermediate Education Act 1921chapter III Regulation 101 to 106-power
of
DIOS
to
appointment
on
compassionate
ground-R-4recommended
for
appointment
on
compassionate ground by the regional
committee-DIOS
to
ensure
the
appointment
and
functioning
of
compassionate
appointee
passed
impugned
direction-challenged
by
management-held-although
DIOS
can
not visit in institution to ensure joining
of such appointee-but in furtherance for
enforcement
of
lawful
order-any
interference by writ court amounts to
perpetuating
illegal
action
of
management-petition dismissed.

Held: Para 10

So far as the insistence of the District
Inspector of Schools to ensure joining of
the
compassionate
appointee
is
concerned,
this
Court
is
of
the
considered opinion that the District
Inspector of Schools may not have acted
strictly in accordance with law even then
the action taken is in furtherance of
interest of justice and for enforcing
lawful orders. Any interference with the
order of the District Inspector of Schools
will amount to perpetuating an illegal
action of the management. Power under
Article 226 of the Constitution of India is
not to be exercised in favour of the
Committee of Management, which want
to act illegally and insists that other
courses open to law should have been
adopted with sole purpose to delay the
joining
of
the
lawfully
appointed
candidate.
Case law discussed:
(2003) SCC 669; AIR 2008 SC 1272; AIR 1977
SC 1720; (1998) 2 UPLBEC 1310

(Delivered by Hon'ble Arun Tandon,J.)

1. Petitioner before this Court is the
Committee of Management of Seth
Basudeo Sahai Inter College, Kannauj.
The
Committee
of
Management
is
aggrieved by the order of the District
Inspector of Schools, Kannauj dated
05.08.2011.
3 All C/M Seth Basudeo Sahai Inter College,Kannauj V. State of U.P. and others
1121

2.

Respondent
no.
4
was
recommended for appointment in the
petitioner's institution on compassionate
ground under an order dated 09.12.2010.
Since the direction so issued was not
being
complied
with,
the
District
Inspector of Schools, after issuing two
notices to the Committee of Management,
himself proceeded to the institution to
ensure the joining of the candidate so
recommended and has further issued
order dated 05.08.2011 to the Principal of
the institution to ensure that the appointed
candidate is permitted to work and to sign
the attendance register and that there
should be no interference in that regard.
Hence this petition.

3. The order of the District Inspector
of Schools dated 09.12.2010, appointing
the respondent no. 4 in the petitioner's
institution on compassionate ground, is
not under challenge in this petition. It is,
therefore,
clear
that
only
the
consequential action, which is being
taken, is under challenge.

4. The Hon'ble Supreme Court of
India in the case of Government of
Maharastra
v.
Deokar's
Distillery,
reported in (2003) SCC 669, Barkat Ali v.
Badri Narain, reported in AIR 2008 SC
1272 and P. Chithranja Menon v. A.
Balakrishnan, reported in b has held that
if the basic order is not under challenge,
consequential order cannot be subjected
to challenge. For this ground alone the
writ petition is liable to be dismissed.

5. Even otherwise this Court may
record that Regulation 101 to 106 of
Chapter III of the regulations framed under
the Intermediate Education Act, 1921
confer a power upon the District Inspector
of Schools to appoint on compassionate
ground a dependent of a deceased employee
against an available vacancy in any
institution in the District subject however to
the condition that suitable vacancy is not
available in the institution where the
deceased employee was himself/herself was
working.

6. In the facts of the present case it is
not disputed by the petitioner that the
mother of respondent no. 4 was employed
in a recognized Intermediate College. She
expired during harness and that there is no
vacancy available in the said institution
where she was working qua the post on
which the respondent no. 4 has been
recommended by the Regional Level
Committee for compassionate appointment.
The right of compassionate appointment in
favour of respondent no. 4 is, therefore, not
under cloud.

7. What is being contended before this
Court is that in the petitioner's institution
there are five posts of the Clerk duly
created, three of them falls within the quota
for
promotion
and
two
for
direct
recruitment. It is stated that one post for
direct recruitment has already been filled by
the compassionate appointee, therefore,
second post within the quota for direct
recruitment may not be filled by the other
compassionate appointment, as it will
amount to 100% reservation in favour of
compassionate
appointees.
For
the
proposition the petitioner has placed
reliance upon the judgment of the Hon'ble
Apex Court in the case of Director of
Education (Secondary) and another vs.
Pushpendra Kumar and others etc.
reported in (1998) 2 UPLBEC, 1310. It has
been contended that the District Inspector of
Schools should not have approached the
institution for joining of the employee
concerned, he should have proceeded
1122 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
against the management of the institution
under the Intermediate Education Act.

8. At the very outset it may be
recorded that power of District Inspector of
Schools
to
appoint
a
person
on
compassionate ground, against the vacancy
available in the petitioner's institution, under
Regulations 101 to 106 of Chapter III of the
Regulations framed under the Intermediate
Education Act, which is within the quota for
direct recruitment, cannot be questioned.
Therefore, the recommendation made for
appointment of respondent no. 4 in the
petitioner's institution on compassionate
ground against the vacancy available for
direct recruitment is held to be legal and
valid.

9. The conclusion that if the second
post within the quota for direct recruitment
is filled by compassionate appointment, it
would amount to 100% reservation is
concerned, this Court finds that the
provisions of Regulations 101 to 106 of
Chapter-III of the Regulations framed under
the Intermediate Education Act do not carve
out any such prohibition. The statutory
provisions have not been challenged in this
petition.

10. So far as the insistence of the
District Inspector of Schools to ensure
joining of the compassionate appointee is
concerned, this Court is of the considered
opinion that the District Inspector of
Schools may not have acted strictly in
accordance with law even then the action
taken is in furtherance of interest of justice
and for enforcing lawful orders. Any
interference with the order of the District
Inspector of Schools will amount to
perpetuating an illegal action of the
management. Power under Article 226 of
the Constitution of India is not to be
exercised in favour of the Committee of
Management, which want to act illegally
and insists that other courses open to law
should have been adopted with sole purpose
to delay the joining of the lawfully
appointed candidate.

11. In the facts and circumstances of
the case, this Court refuses to exercise its
discretion under Article 226 of the
Constitution of India.

12. Writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc Writ Petition No. 55931 of 2009

Rakesh Bhusan Mishra
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri J.K. Sharma
Sri Shish Pal
Sri Shesh Kumar

Counsel for the Respondents:
C.S.C.

U.P. Govt. Servants (Disciplined and
Appeal) Rules 1999-Rule-4-suspension
without
chargesheet-no
progress
in
disciplinary
proceedings-prolong
suspension without chargesheet-cannot
be
appreciated-suspension
order
quashed with liberty to fresh enquiry if
desired-cost of Rs. 20000/-recovered
from erring officer.

Held: Para 5

This is also a fact that the counter
affidavit
though
was
sworn
on