# Ashwani Kumar Gautam v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1270
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-21
- **Case number:** Special Appeal No. 1712 of 2010
- **Bench:** Syed Rafat Alam, C.J. Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashwani-kumar-gautam-v-state-of-u-p-and-others-41973
- **Pages:** 6

## Headnote

U.P. Intermediate Education Act 1921,
Chapter III Regulate 103-Section 16GCompassionate
Appointment-petitioner's
3 All] Ashwani Kumar Gautam V. State of U.P. and others
1271
father working on Class III Post-died in
harness on 01.05.1983-on 27.01.1994
offered of class 4th post-not joined-but
subsequently joined on class III post
under
protest-approved
by
DIOS-on
consideration of claim for arrears of salaryappointment on class III post cancelledSingle Judge rightly declined to interfereonce the appellant joined class 4th postcan not claim benefit of amended provision
through notification dated 02.02.1995having no force of retrospective effect.

Held: Para 18

In view of the aforesaid observations of
the Division Bench with which we are in
respectful
agreement,
the
submission
advanced by learned counsel for the
appellant
based
upon
the
note
to
Regulation 103 has no force.
Case law discussed:
1994 Supp. (3) SCC 661; AIR 1994 SC 845; 2006
(6) ALJ 449

## Text

1270 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
natural justice and hence the order is liable
to be quashed.

32. In Rajpal Singh vs. State of U.P.
and others 2008(16) LCD 891, it has been
held by this Court that non-furnishing of the
inspection report of the Supply Inspector,
which was relied upon for cancellation of
the licence, amounts to violation of
principle of natural justice, hence, the order
of cancellation as well as the appellate order
was not sustainable in the eyes of law.

33. Recently, a co-ordinate bench of
this Court in Sita Devi vs. Commissioner,
Lucknow & others [2011(29) LCD 626]
held that the action of the authority in
passing the order of cancellation without
supplying the copy of the preliminary
enquiry report while proving the charges
against the petitioner on the basis of said
enquiry report is hit by the grave legal
infirmity and whole action of the authority
is in great disregard of the principles of
natural justice.

34. After peeping into the contentions
of both the parties and the series of case
laws, referred to above, I am of the
considered opinion that the cancellation of a
agreement/licence of a party is a serious
business and cannot be taken lightly. In
order to justify the action taken to cancel
such an agreement/licence, the authority
concerned has to act fairly and in complete
adherence to the rules/guidelines framed for
the said purposes including the principles of
natural justice. The non-supply of a
document utilized against the aggrieved
person before the cancellation of his
allotment
of
fair
price
shop
licence/agreement
offends
the
wellestablished principle that no person should
be condemned unheard.

35. Thus from the series of decisions,
referred to herein-above, it clearly comes
out that the preliminary enquiry report,
inspection report or complaint or any other
document which is utilized by the authority
while cancelling the licence of a fair price
shop licence, same has to be supplied to the
licence holder and personal hearing is also
to be afforded otherwise the proceedings
would be in blatant disregard of the
principles of natural justice.

36. In view of the above, the
impugned orders passed by the appellate
authority and the order of cancellation are
hereby quashed. Needless to say that this
order shall not preclude the competent
authority from passing appropriate order in
accordance with law.

37. Accordingly, the writ petition
stands allowed .
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2011

BEFORE
THE HON'BLE SYED RAFAT ALAM,C.J.
THE HON'BLE KRISHNA MURARI,J.

Special Appeal No. 1712 of 2010

Ashwani Kumar Gautam
 ...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri Alok Kumar Yadav

Counsel for the Respondents:
Sri M.C. Singh
Sri Dushyant Singh
C.S.C.

U.P. Intermediate Education Act 1921,
Chapter III Regulate 103-Section 16GCompassionate
Appointment-petitioner's
3 All] Ashwani Kumar Gautam V. State of U.P. and others
1271
father working on Class III Post-died in
harness on 01.05.1983-on 27.01.1994
offered of class 4th post-not joined-but
subsequently joined on class III post
under
protest-approved
by
DIOS-on
consideration of claim for arrears of salaryappointment on class III post cancelledSingle Judge rightly declined to interfereonce the appellant joined class 4th postcan not claim benefit of amended provision
through notification dated 02.02.1995having no force of retrospective effect.

Held: Para 18

In view of the aforesaid observations of
the Division Bench with which we are in
respectful
agreement,
the
submission
advanced by learned counsel for the
appellant
based
upon
the
note
to
Regulation 103 has no force.
Case law discussed:
1994 Supp. (3) SCC 661; AIR 1994 SC 845; 2006
(6) ALJ 449

(Delivered by Hon'ble Syed Rafat Alam,C.J.)

1. This is an intra-court appeal under
the Rules of the Court arising from the
judgment and order dated 16th September,
2010 of the learned Single Judge dismissing
the appellant's Writ Petition No. 42106 of
2008.

2. The short facts giving rise to this
appeal is that the father of the appellant was
a Class-III employee of S.K. Inter College,
Maharara
in
the
district
of
Hathras/Mahamaya
Nagar
(hereinafter
referred to as the ''institution'), which is a
recognized institution governed by the
provisions
of
the
U.P.
Intermediate
Education Act, 1921 (for short ''the Act')
and the regulations framed thereunder.
Appellant's father died in harness on
01.05.1993.
He,
therefore,
made
an
application
for
giving
compassionate
appointment. He was, however, offered
appointment against Class-IV post on
27.01.1994, but he did not join and made a
request to appoint him on a post
commensurate
to
his
qualification.
Thereafter, he was offered appointment
against a Class-III post, which he claims to
have joined under protest and the same was
also approved by the District Inspector of
Schools on 18.02.1994. The appellant,
however, started making request to appoint
him as Assistant Teacher keeping in view
the fact that he possessed the requisite
qualification
for
the
said
post.
He
approached this Court by filing Civil Misc.
Writ Petition No. 54385 of 2003, which was
disposed of vide order dated 11.12.2003
with the direction to the District Inspector of
Schools, Hathras to consider the case of the
petitioner-appellant and decide the same in
accordance with law within a period of two
months.

3. The District Inspector of Schools,
Hathras,
pursuant
to
order
dated
11.12.2003, considered the case of the
petitioner-appellant and vide order dated
13.01.2004 decided the representation
holding that he was entitled for being
appointed as Assistant Teacher. Further
case set up by the appellant is that he was
given appointment on the post of Assistant
Teacher vide appointment order dated
31.01.2004 issued by the Manager of the
institution and in pursuance thereof, he
joined the post on 03.02.2004. His salary
bills were regularly being forwarded, but
the payment of salary was not made. He
again approached this Court by filing Writ
Petition No. 31905 of 2004 seeking a writ
of mandamus to command the respondents
to make payment of his salary.

4. It appears that the controversy
regarding claim of the appellant for
payment of salary on the post of Assistant
1272 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Teacher remained pending. The then
District Inspector of Schools vide letter
dated 30th June, 2004, sought clarification
from the Joint Director of Education
whether the petitioner-appellant was entitled
for payment of salary on the post of
Assistant
Teacher.
Vide
order
dated
17.07.2008, the District Inspector of
Schools rejected the claim of the petitionerappellant for payment of salary and the
approval accorded to his compassionate
appointment as Assistant Teacher was
cancelled.
Aggrieved,
the
appellant
approached this Court. Learned Single
Judge finding that the petitioner-appellant
having once availed the benefit of
compassionate appointment in the year
1994, the right to such appointment stood
exhausted and he does not have indefeasible
right
to
claim
appointment
on
compassionate basis as Assistant Teacher,
dismissed the writ petition.

5. Learned counsel for the appellant
vehemently contended that since the
appellant holds requisite qualification for
being appointed as Assistant Teacher, the
same could not have been cancelled after
giving him such appointment. He further
sought to argue that under Regulation 103
of Chapter III, the dependent has to be
given compassionate appointment keeping
in view his qualification and since the
appellant holds the requisite qualification
prescribed for Assistant Teacher, he is liable
to be given compassionate appointment on
said post. Relying on the note appended to
Regulation 103, it has been urged that since
the said regulation has been
made
applicable in relation to those employees,
who have died on or after 1st January, 1981,
the petitioner-appellant having requisite
qualification, ought to have been given
compassionate appointment on the post of
Assistant teacher.

6. Learned Standing Counsel refuting
the submissions advanced on behalf of the
appellant contended that once having
accepted the appointment offered to him on
a Class III post on compassionate grounds
in the year 1994, he has no right to claim
appointment
on
the
teaching
post
subsequently.

7. In order to appreciate the rival
contention and controversy involved, it
would be relevant to examine the provisions
contained in Regulation 103 of Chapter III.
Regulation 101 to 107 of Chapter III
provides the procedure for appointment on
the post of Principal, Teachers as well as
Class III and Class IV posts. Regulation 103
of Chapter III framed under Section 16G of
the Intermediate Education Act deals with
the appointment on compassionate ground.
Regulations 101 to 107 were inserted in
Chapter III vide Government Notification
dated 30.07.1992.

8. The relevant Regulation 103, as it
originally stood at the time of insertion,
reads 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 :

Explanation.- For the purpose of this
regulation "member of the family" means
widow or widower, son, unmarried or
3 All] Ashwani Kumar Gautam V. State of U.P. and others
1273
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 1
January, 1981."

9. Thus, initially the Regulation made
a provision for making compassionate
appointment only on a non-teaching post.
Regulation 101 and 103 to 107 were again
substituted
vide
notification
dated
02.02.1995. The substituted Regulation 103
reads 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 the 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 1
January, 1981."

10. It is for the first time, vide
notification dated 02.02.1995, provision
was made for making compassionate
appointment on a teaching post as well,
provided
the
incumbent
was
having
requisite qualification prescribed for the
post. Thus in 1994, when the petitioner was
offered appointment against a Class III post,
which he claims to have joined under
protest and was duly approved by the
District Inspector of Schools on 18.02.1994,
unamended Regulation 103 was in force
under which a compassionate appointment
could only have been made on a nonteaching post, inasmuch as the amended
Regulation 103 making a provision of
compassionate appointment on a teaching
post, was enforced vide notification dated
02.02.1995.

11. The question which arises in this
appeal for consideration is whether once
compassionate appointment is accepted, can
there be a second consideration on a higher
post under the same right.

12. It is an admitted fact that the
appellant accepted the offer of appointment
against a Class-III post and pursuant
thereto, he joined the service on 18th
February, 1994. We are, therefore, of the
considered view that the appellant, having
accepted the compassionate appointment
against a Class-III post, his right to be
considered under the Act/Regulations is
exhausted. The appellant, at the most, was
entitled to be considered for giving
compassionate appointment. It does not
give him indefeasible right to claim
appointment against his choicest post.
Therefore, we are of the considered view
that the appellant cannot now apply or
pursue to reconsider him claim under the
same provision for giving a higher position
keeping in view his qualification. Our view
1274 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
finds support from the enunciation of law
made by the Apex Court in State of
Rajasthan Vs. Umrao Singh, 1994 Supp.
(3) SCC 661 wherein it has been held as
under:-

"Admittedly, the respondent's father
died in harness while working as SubInspector, C.I.D. (Special Branch) on
16.03.1988. The respondent filed an
application
on
08.04.1988
for
his
appointment on compassionate ground as
Sub-Inspector or LDC according to the
availability of vacancy. On a consideration
of his plea, he was appointed to the post of
LDC by order dated 14.12.1989. He
accepted
the
appointment
as
LDC.
Therefore, the right to be considered for
appointment on a compassionate ground
was consummated. No further consideration
on compassionate ground would ever arise.
Otherwise, it would be a case of "endless
compassion". Eligibility to be appointed as
Sub-Inspector of Police is one thing, the
process of selection is yet another thing.
Merely because of the so-called eligibility,
the learned Single Judge of the High Court
was persuaded to the view that direction be
issued under proviso to Rule 5 of Rules
which has no application to the facts of this
case."

13. Again in the case of State of M.P.
Vs. Ramesh Kumar Sharma, AIR 1994
SC 845, the Apex court has held that a
person
claiming
compassionate
appointment has no right to any particular
post of his choice.

14. In view of the exposition of law by
the Apex Court, it stands concluded that
once an incumbent accepts the post offered
to him under the Rules or Regulations
governing compassionate appointment, the
right extended to him under the said Rules
or Regulations, stands exhausted and there
cannot be any second consideration for the
said right.

15. There is yet another aspect of the
matter. In 1994, when the appellant
exercised the right given to him by
Regulation 103 for being considered for
compassionate appointment, there was no
provision for making such an appointment
on
a
teaching
post.
The
amended
Regulation providing consideration for
compassionate appointment on a teaching
post
was
enforced
by
substituting
Regulation 103 on 02.02.1995. Thus, in the
absence of any provision, at the time of
consideration of the appellant's case for
making compassionate appointment on a
teaching post, he could not have been
considered for being offered appointment
on the said post.

16. Learned counsel for the appellant
referring to the note appended to Regulation
103 providing that this Regulation and
Regulations 104 to 107 shall be made
applicable in respect of those employees
who have died on or after January 1981,
urged that the effect of the note is that any
person, who has received compassionate
appointment prior to 02.02.1995 can claim
appointment on another post after the
amendment in the Regulation.

17. This issue stands answered by a
Division Bench of this Court in the case of
Shardanand Tiwari Vs. State of U.P. &
Ors., 2006 (6) ALJ 449. In paragraph 13 of
the said judgment, it has been held as under.

"13. Learned counsel for the appellant
has also referred to Regulation 103 of
Chapter III in which a note has been made
that this regulation and Regulations 104 to
107 would apply in relation to those
3 All] Urmila Devi V. State of U.P. and aother
1275
employees who have died on or after 1st
January, 1981. The regulations 101 to 107
were inserted in Chapter III on 30th July,
1992. Prior to 30th July, 1992 there was no
provision
in
the
U.P.
Intermediate
Education Act, 1992 or the regulations
framed thereunder with regard to giving of
appointment to dependent of deceased
employee
on
compassionate
ground.
However,
the
appointments
on
compassionate ground were being given to
dependent of deceased employees by virtue
of Government order which permitted
appointment on compassionate ground with
effect from 1st January, 1981. This is the
reason why the note has been made in
Regulation 103 of Chapter III that this
regulation and Regulations 104 to 107
would apply in relation to employees who
have died on or after 1.1.1981. Thus the
appointment on compassionate ground to
the employees who died on or after
1.1.1981 has been protected but the effect of
the note is not that any person who has
received compassionate appointment prior
to 2.2.1995 can claim appointment on
another post after the amendment in the
regulations."

18. In view of the aforesaid
observations of the Division Bench with
which we are in respectful agreement, the
submission advanced by learned counsel for
the appellant based upon the note to
Regulation 103 has no force.

19. The idea or the purpose for
providing
compassionate
appointment,
which is contrary to the general rule of
appointment, is to mitigate the hardship of
the dependents of the deceased employee
who died leaving behind his dependents in
penury. Such appointment is to be given
immediately within the shortest possible
time after the death of the deceased so that
his family may not be ruined. In the case in
hand, the appellant's father died in the
month of May, 1993, as noticed above, and
he was given compassionate appointment,
pursuant to which he joined in the month of
February, 1994 and, thus, the right to be
considered under Regulation 103 stands
exhausted. Regulation 103 does not confer
or give right to give second consideration
for giving appointment on the basis of
qualification as it would be against the basic
idea of giving compassionate appointment.

20. Thus, we do not find any error in
the order of the learned Single Judge. The
appeal, accordingly, fails and stands
dismissed.

21. However, the appellant would be
entitled to continue as Class III employee in
terms of the order of the learned Single
Judge.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No.1731 of 2010

Urmila Devi

...Appellants
Versus
State of U.P. and another ...Respondents

Counsel for the Appellant:
Sri B.N. Singh
Sri Satyaveer Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Article
226Compassionate
appointment-petitioner
being Madhyama from Hindi Sahitya
Sammelan-offered appointment on post