# Subhash Chand v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 399
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-18
- **Case number:** Writ-A No. 8741 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chand-v-state-of-u-p-ors-50804
- **Pages:** 11

## Headnote

Law
-
Compassionate
appointment - Class III/Class IV post -
GO dated 04.09.2000 - Time limit for
submission of application fixed is five
years - Earlier, petitioner's appointment
as Assistant Teacher was terminated as he
did not passed Teachers Eligibility Test
(TET) - Writ against it was dismissed in
the light of Hari Shankar's case leaving it
open to the petitioner to claim for existing
Class III/Class IV post - However, claim
of the petitioner for Class III/Class IV
post was rejected on the ground of delay
of 11 years - Validity challenged - Held,
once petitioner submitted application for
compassionate appointment immediately
after the death of his father, it was
obligatory on the part of the authority to
offer him a legal appointment - Even he
was issued appointment order but later
on, it was found that the said appointment
of the petitioner was dehors the rules,
therefore,
it
was
incumbent
on the
authority
to
offer
compassionate
appointment to the petitioner on ClassIII/Class-IV post. (Para 29, 33 and 34)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

9 All. Subhash Chand Vs. State of U.P. & Ors.
399
his order later, unless it is established that
the said order was obtained by fraud or
misrepresentation and in case of fraud or
misrepresentation, the DIOS must not
recall his earlier order without giving
opportunity of hearing to the person in
whose favour the earlier order was passed.

24. In the present case, no such fraud
or misrepresentation has been proved
against the petitioners, therefore, the order
stopping salary of the petitioners appears to
be arbitrary and without jurisdiction and is
liable to be quashed.

25. For the reasons recorded above,
the writ petition succeeds and is allowed.

26. The impugned orders dated
22.08.1988 & 19.08.1989 are hereby
quashed.

27. However, the petitioners are
entitled to get salary w.e.f. their date of
joining i.e. 08.07.1988, therefore, direction
is issued to ensure payment of salary to the
petitioners w.e.f. 08.07.1988.

28. It is further directed that the
Chairman, Regional Level Committee will
pass orders on the matter of regularization
of petitioner No.2 pending before him
within a period of three months from the
date of production of a certified copy of
this order.
----------
(2023) 9 ILRA 399
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 8741 of 2023
Subhash Chand ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Kumar Kesherwani

Counsel for the Respondents:
C.S.C., Sri Ashutosh Mishra, Sri Rajesh Yadav

A.
Service
Law
-
Compassionate
appointment - Class III/Class IV post -
GO dated 04.09.2000 - Time limit for
submission of application fixed is five
years - Earlier, petitioner's appointment
as Assistant Teacher was terminated as he
did not passed Teachers Eligibility Test
(TET) - Writ against it was dismissed in
the light of Hari Shankar's case leaving it
open to the petitioner to claim for existing
Class III/Class IV post - However, claim
of the petitioner for Class III/Class IV
post was rejected on the ground of delay
of 11 years - Validity challenged - Held,
once petitioner submitted application for
compassionate appointment immediately
after the death of his father, it was
obligatory on the part of the authority to
offer him a legal appointment - Even he
was issued appointment order but later
on, it was found that the said appointment
of the petitioner was dehors the rules,
therefore,
it
was
incumbent
on the
authority
to
offer
compassionate
appointment to the petitioner on ClassIII/Class-IV post. (Para 29, 33 and 34)

Writ petition allowed. (E-1)

List of Cases cited:

1. Civil Misc. Writ Petition No. 33828 of 2012;
Hari Shankar & ors. Vs St. of U.P. & ors. decided
on 25.07.2012

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing
for the petitioner, Sri Ashish Kumar
Nagwanshi,
learned
Additional
Chief
Standing Counsel appearing for the State
400 INDIAN LAW REPORTS ALLAHABAD SERIES
and Sri Ashutosh Mishra, learned counsel
appearing for the Respondents No. 3 and 4.

2. Petitioner through this Writ
Petition has challenged the order dated
20.02.2023 passed by the Respondent No. 3
i.e. Secretary, U.P. Basic Education Board,
Prayagraj
whereby
his
case
for
compassionate
appointment
has
been
rejected on the ground that petitioner's
father, while working as Headmaster, died
on 02.08.2008 and, therefore after elapse of
about 11 years, there is no justification to
provide compassionate appointment to the
petitioner on Class III/Class IV post and
further petitioner has also not submitted his
application for compassionate appointment
on the format prescribed by the State
Government.

3. The facts of the case, in brief, are
that father of the petitioner, while working
on the post of Headmaster in a primary
school run under U.P. Basic Education
Board in District Baghpat, died in harness
on 02.08.2008.

4. State Government has issued a
Government Order on 04.09.2000 whereby
it has been provided that if any dependent
of a teacher who has died in harness applies
for compassionate appointment on the post
of Assistant Teacher and if he does not
possesses training qualification required for
such appointment then he will be appointed
as untrained teacher and after such
appointment, the appointee shall be sent to
the District Institute for Education and
Training for requisite training and after
completing training, he will be given
appointment on the regular post of
Assistant
Teacher.
The
aforesaid
Government
Order
dated
04.09.2000
further provides that if the dependent of the
government servant possess minimum
educational qualification of Intermediate
then he can be given compassionate
appointment on the posts of clerical cadre
in the offices run under Basic Education
Board. The relevant portion of the
Government Order dated 04.09.2000 is
extracted as under:

"4- ऐसे मृतक आजित िो सेवायोिन हेतु आवेदन-पत्र
प्रस्तुत करने की जतजथ को सहायक अध्यापक के पद हेतु सेवा
जनयमों में जवजहत शैजिक अहकता रिते हों, परन्तु प्रजशिण अहकता
नहीं रिते/पूरी नहीं करते, को अप्रजशजित अध्यापक के रूप में
सेवायोिन हेतु आवेदन करने पर यथा सम्र्व तीन माह के
अन्दर सेवायोिन की सुजविा प्रदान की िायेगी। ऐसे मृतक
आजित को सेवायोिन के बाद सम्बजन्ित िनपद के जिला
जशिा एवं प्रजशिण संस्थान में प्रारम्र् होने वाले बैजसक
अध्यापक प्रमाण पत्र (बी०र्ी०सी०) प्रजशिण पाठ्यक्रम के
आगामी पहले बैच में प्रजशिण हेतु प्रवेश जदया िायेगा। मृतक
आजित के रूप में प्राथजमक जवद्यालय में सहायक
अध्यापक/अध्याजपका के पद पर जनयजमत जनयुजक्त प्रदान करने के
जलए उनको (बी०र्ी०सी०) प्रजशिण पाठ्यक्रम सफलतापूवक
पूणक करना अजनवायक होगा। प्रजशिण अवजि में उन्हें अप्रजशजित
अध्यापक के रूप में जनयत वेतन, िैसा जक शासन द्वारा समयसमय पर जनिाकररत जकया गया हो, देय होगा। बेजसक अध्यापक
प्रजशिण पाठ्यक्रम में उत्तीणक होने के बाद ही प्राथजमक जवद्यालय
में सहायक अध्यापक के पद पर जनयजमत जनयुजक्त प्रदान की
िायेगी।

जनयुक्त प्राजिकारी एवं जिला जशिा एवं प्रजशिण संस्थान
का यह दाजयत्व होगा जक वह अप्रजशजित अध्यापक के रूप में
सेवायोजित मृतक आजित अभ्यजथकयों के सेवारत प्रजशिण की
व्यवस्था उनके सेवायोिन के बाद प्रारम्र् होने वाले पहले
प्रजशिण सत्र में सुजनजित करेंगे।

ऐसे मृतक आजित को िो उपयुक्त सेवारत प्रजशिण को
जनिाकररत अवजि में सफलतापूवक पूणक करने में असफल रहते है,
के जलए यह जवकलप उपलब्ि रहेगा जक वह चतुथक िेणी के पद
के सोपेक्ष्य जनयुजक्त हेतु आवेदन करें अथवा प्रजशिण उत्तीणक
करने तक अप्रजशजित अध्यापक के रूप में जनयत वेतन पर बने
रहें, जकन्तु प्रजतबन्ि है जक ऐसे सेवारत बी०र्ी०सी०
प्रजशिणाजथकयों को सामान्य बी०र्ी०सी० पाठ्यक्रम के
प्रजशिणाथी की र्ााँजत ही बी०र्ी०सी० पाठ्यक्रम की अनुपूरक
परीिा हेतु जवजहत जनयमों के अनुसार अवसर अनुमन्य होंगे,
जकन्तु यजद अभ्यथी तब र्ी बी०र्ी०सी० के अंजतम परीिा
उत्तीणक करने में जवफल रहते हैं, तो ऐसे अभ्यथी के जलए चतुथक
9 All. Subhash Chand Vs. State of U.P. & Ors.
401
िेणी के पद के सापेक्ष्य जनयजमत जनयुजक्त के अजतररक्त अन्य
कोई जवकलप शेष नहीं रहेगा। अतः ऐसे अभ्यथी िो
बी०र्ी०सी० परीिा में अंजतम रूप से जवफल रहते हैं, को
सहायक अध्यापक पद के जलए अभ्यथकन स्वतः जनरस्त समझा
िायेगा और बी०र्ी०सी० परीिा में अंजतम रूप से असफल होने
के माह के अंजतम कायक जदवस से अप्रजशजित अध्यापक के रूप
में र्ी उनकी जनयुजक्त स्वतः समाप्त समझी िायेगी, जकन्तु ऐसे
अभ्यथी यजद चतुथक िेणी के ररक्त/अजिसंख्य पद के सापेक्ष्य
सेवायोिन की प्राथकना करते हैं, तो उस पर जवचार जकया िा
सकेगा।

5- ऐसे मृतक आजित िो सम्बजन्ित कमकचारी की मृत्यु
के जदनांक को मृतक आजित के रूप में सेवायोिन के जलए
न्यूनतम शैजिक अहकता इण्र्रमीजिएर् अथवा उससे अजिक रिते
हों और बेजसक जशिा पररषद के अिीन अिीनस्थ स्तरों पर
जलजपक के सम्वगक के सबसे नीचे के पद पर सेवायोिन के जलए
अन्यथा अहक हों, को सम्बजन्ित िनपद में जलजपक के ररक्त पद
के सापेक्ष्य सम्वगक में सबसे नीचे के पद पर सेवायोिन प्रदान
जकया िायेगा।"

5. Petitioner, after death of his father,
applied for compassionate appointment on
the post of Assistant Teacher in terms of
the aforesaid Government Order dated
04.09.2000
and
the
District
Basic
Education
Officer,
Baghpat
issued
appointment letter on 30.07.2011 whereby
petitioner was appointed as untrained
Assistant Teacher in Primary School,
Suroorpur-Ist,
Block-Baghpat,
District
Baghpat. Petitioner pursuant to aforesaid
appointment letter submitted joining in the
primary school in District Baghpat and
started discharging duties attached to his
post.

6. Later on, the District Basic
Education Officer, Baghpat passed an order
on 28.08.2012 whereby services of the
petitioner were terminated with effect from
the date of his initial compassionate
appointment. The District Basic Education
Officer, Baghpat while passing termination
order dated 28.08.2012 has said that since
on 27.07.2011 U.P. Right of Children to
Free and Compulsory Education Rules,
2011 have been enforced and, therefore
with effect from 27.07.2011, no one can be
appointed as teacher in the primary school
run by U.P. Basic Education Board unless
he has passed out Teachers Eligibility Test
(T.E.T.) and since petitioner was given
compassionate appointment and he has not
passed out Teachers Eligibility Test,
therefore, his services are liable to be
terminated with effect from the date of
initial compassionate appointment.

7. At this juncture, it is noteworthy
that the aforesaid Government Order dated
04.09.2000 provides that a person seeking
compassionate appointment must submit
his application within a period of five years
from the date of death of the employee and
if the said application is submitted after the
aforesaid period of five years then the same
will be referred to the Secretary, U.P. Basic
Education Board, Prayagraj and in turn, the
said application will be further referred to
the State Government and if the State
Government finds justifiable reasons for
the delay in submission of application for
compassionate appointment then it will
condone the delay and will permit the
concerned District Basic Education Officer
to
appoint
the
said
candidate
on
compassionate ground.

8. In the case of the petitioner, his
father died on 02.08.2008 and immediately
thereafter petitioner submitted application
for compassionate appointment and that
application was acted upon and petitioner
was appointed on the post of untrained
Assistant Teacher. It appears that at the
time of compassionate appointment of the
petitioner, the District Basic Education
Officer was ignorant of the fact that after
27.07.2011, no one could have been
appointed as teacher unless he has passed
402 INDIAN LAW REPORTS ALLAHABAD SERIES
out Teachers Eligibility Test and the said
mistake was realised by the District Basic
Education Officer, Baghpat and he passed
an order on 28.08.2012, thereby services of
the petitioner were terminated with effect
from the date of his initial appointment.

9. From the aforesaid, it is patently
manifest that the petitioner submitted his
application for compassionate appointment
within five years from the date of death of
his father and the said application was
acted upon but due to some legal issue,
petitioner's appointment on the post of
untrained Assistant Teacher could not
sustain.

10. Petitioner challenged the order
dated 28.08.2012 whereby his services
were terminated, by filing Writ-A No.
59648 of 2012 (Neha Sharma and others
Vs. Sate of U.P. and others). This court
vide order dated 9.11.2012 dismissed the
writ petition filed by the petitioner in terms
of judgement and order dated 25.07.2012
passed in Civil Misc. Writ Petition No.
33828 of 2012 (Hari Shankar and Others
Vs. State of U.P. and Others).

11. This court in the aforesaid
judgement dated 25.07.2012 passed in Civil
Misc. Writ Petition No. 33828 of 2012
considered the issue in detail in respect of
the fact as to whether after enforcement of
U.P. Right of Children to Free and
Compulsory Education Rules, 2011 on
27.07.2011, any person can be given
compassionate appointment as untrained
Assistant
Teacher.
This
court
vide
judgement dated 25.07.2012 decided the
issue and held that after 27.07.2011,
nobody could have been appointed on the
post of teacher unless he has passed out
Teachers Eligibility Test, therefore, the
order by which petitioner's services have
been terminated with effect from the date
of his initial appointment is perfectly in
accordance with law.

12. This court vide judgement and
order dated 25.07.2012 further provided
that the claim of the petitioners for
compassionate appointment be considered
against
existing
Class-III/Class-IV
vacancies except qua Class III vacancies
which are to be filled up by way of
promotion, preferably within next two
months. The relevant portion of the
judgement and order dated 25.07.2012 is
extracted as under:

"In the present case each one of the
petitioners had been offered appointment
after the said notification had been
published by the N.C.T.E. followed by U.P.
Right of Children to Free and Compulsory
Education Rules, 2011 enforceable with
effect from 27.07.2011. Rule 10 of the U.P.
Basic Education (Teachers Service Rules,
1981 cannot be read in isolation rather it
has to be read in the context, it has been
provided for. It gives right of relaxation to
ex-servicemen and certain other categories,
which
is
inclusive
of
compassionate
appointment as well, but the same has to be
in accordance with the general rules and
orders of the Government in this behalf in
force at the time of recruitment. At the
relevant
time,
N.C.T.E.
had
already
declared educational qualification for
teacher to be appointed in school defined
under clause (n) of Section 2, which was
required along with T.E.T. and it was
mandatory requirement. No person could
have been treated to be eligible for being
appointed as teacher without passing the
aforesaid requisite qualification as was
prescribed by the N.C.T.E. The 2009 Act
and the Rules framed thereunder were
clear and categorical. The appointments,
9 All. Subhash Chand Vs. State of U.P. & Ors.
403
which had been made prior to enforcement
of the Act, were saved, as the incumbents
appointed were required to fulfill the
eligibility criteria within five years from the
enforcement of the Act and in other cases,
there has to be specific order by the
Central Government on the request of the
State Government, and in the present case
accepted position is that after enforcement
of the Act, N.C.T.E. Norms and U.P. Right
of Children to Free and Compulsory
Education Rules, 2011, petitioners had
been appointed and in view of this
relaxation as has been provided for, could
not have been accorded. The Government
Order
in
regard
to
compassionate
appointment has been pressed in flagrant
violation of statutory provisions, and in
view of this Secretary of the Board on
being apprised of this factual situation has
proceeded to remedy the situation by
annulling such appointments which were
dehors the statutory provisions. Once
appointment of the petitioners was totally
contrary to law not at all subscribed by
law, none of the petitioners were legally
eligible and entitled to be appointed as
concept of untrained assistant teacher, is
violative of Article 21A of the Constitution
as untrained teacher cannot be recruited,
as proper training of teacher is integral
aspect
in
right
of
education
being
effectuated. In view of this, the Secretary of
the Board has acted well within his right to
direct cancellation of such appointments,
which were contrary to law in force on the
date when they had been recruited.
Principle of natural justice has no role to
play in such matters, when appointments
made are dehors the statutory provisions,
on admitted position, and it would be
nothing more but exercise in futility, as
result would be one and the same, and
quashing of the order on this ground would
be nothing but perpetuating the illegality,
i.e. permitting untrained teachers to
continue.

Petitioners have tried to submit that
amongst untrained Assistant Teachers, two
classes have been created, as service of
only those untrained Assistant Teachers
have been terminated, who have been
appointed after 27.07.2011, i.e., after
enforcement of U.P. Right of Children to
Free and Compulsory Education Rules,
2011, and the services of untrained
teachers appointed prior to it have not been
terminated. Negative equality cannot be
claimed, and said class of teachers are not
before this Court, either individually or
collectively, as such this Court is not
touching this question and deciding and
deciding the said question, and this issue is
left open to be decided in appropriate
proceedings.

In view of what has been discussed
above, all the writ petitions are dismissed.
The claim of the petitioners be considered
against existing class III/IV vacancies
except qua class III vacancies which are to
be filled up by way of promotion,
preferably within next two months."

13. From bare perusal of the
judgement and order dated 25.07.2012
passed in Civil Misc. Writ Petition No.
33828 of 2012, it is patently manifest that
this court found that the compassionate
appointment given to the petitioner as
untrained Assistant Teacher was not in
accordance with law, therefore, the order
terminating services of the petitioner was
not interfered with but at the same time this
court issued direction to the respondents to
consider the claim of the petitioner for
compassionate
appointment
against
existing Class-III/Class-IV vacancies, as
such, it was obligatory on the respondents
to consider the claim of petitioner against
existing Class-III/Class-IV vacancies but
404 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents did not consider petitioner's
claim for compassionate appointment as
directed by this court.

14. Petitioner, thereafter challenged
the aforesaid judgement and order dated
09.11.2012 passed in Writ-A No. 59648 of
2012 by filing Special Appeal No. 2074 of
2012 (Neha Sharma and others Vs. State of
U.P. and others). Bunch of Special Appeals
filed against judgement and order dated
25.07.2012 passed in Civil Misc. Writ
Petition No. 33828 of 2012 including
petitioner's Special Appeal No. 2074 of
2012 was dismissed by Division Bench of
this court vide judgement and order dated
9.09.2021 whereby the aforesaid judgement
and order dated 25.07.2012 passed in Civil
Misc. Writ Petition No. 33828 of 2012 has
been upheld.

15. Special Leave Petitions were filed
challenging the judgement and order dated
25.07.2012 passed in Civil Misc. Writ
Petition No. 33828 of 2012 and the
judgement and order dated 9.09.2021
passed in Special Appeal No. 1467 of 2012
and other connected Special Appeals but
later on, the said Special Leave Petitions
were withdrawn with a liberty to file
review before the High Court.

16.

Petitioner
on
23.09.2019
submitted a representation to the District
Basic Education Officer, Baghpat wherein
he
mentioned
that
pursuant
to
his
application for compassionate appointment,
he was appointed on the post of untrained
Assistant Teacher but later on due to some
legal issue, petitioner's services were
terminated. Writ Petition filed against the
termination order has been dismissed but
the High Court, while dismissing the writ
petition,
directed
that
claim
of
the
petitioner for compassionate appointment
be considered for appointment against
Class-III and Class-IV posts but till date,
petitioner has not been offered appointment
on Class-III/Class-IV post, therefore, in
compliance of judgement and order dated
25.07.2012 passed in Civil Misc. Writ
Petition No. 33828 of 2012, petitioner may
be given compassionate appointment on
Class-III/Class-IV post.

17. Petitioner again submitted a
representation on 20.10.2021 whereby he
again requested that the order dated
9.11.2012 passed in Writ-A No. 59648 of
2012 be complied with and petitioner be
given appointment on Class-III/Class-IV
post.
The
relevant
portion
of
the
representation
dated
20.10.2021
is
extracted as under:

"महोदय,

सूचनाथकना जनवेदन है जक प्राथी के जपता स्व0 िी
रामपाल जसंह प्राथजमक जवद्यालय जशकोहपुर-2 जवकास िण्ि-
बागपत जिला बागपत में प्रिानाध्यापक के पद पर कायकरत थे।
जिनकी सेवा में रहते हुए जदनांक 08.06.2008 में मृत्यू हो
गई थी। प्राथी

द्वारा मृतक आजित कोर्े में योग्यतानुसार जनयुजक्त हेतु
आवेदन जदया गया जिसके उपरान्त प्राथी को जदनांक
30.07.2011 में अप्रजशजित सहायक अध्यापक के पद पर
जनयुजक्त दी गई जिसकी छायाप्रजत पत्र के साथ संलग्न है
(संलग्नक-1)।

महोदय इसके उपरान्त सजचव, बेजसक जशिा पररषद के
12 िून 2012 के आदेश का हवाला देते हुए तत्कालीन
बेजसक जशिा अजिकारी द्वारा प्राथी को 28.8.2012 को
बिाकस्त कर जदया गया, जिसकी छायाप्रजत पत्र के साथ संलग्न
है (संलग्नक-2)। जिस कारण प्राथी को माननीय उच्च
न्यायालय इलाहबाद की शरण लेनी पड़ी। प्राथी की ररर्
याजचका संख्या-59648/2012 में सुनवाई करते हुए माननीय
उच्च न्यायालय इलाहबाद द्वारा ख़ाररि कर जदया गया लेजकन
योग्यतानुसार उपलभ्द तृतीय/चतुथक िेणी के पद पर जनयुजक्त देने
के आदेश जदये गये जिसकी छायाप्रजत पत्र के साथ संलग्न है
(संलग्नक-3 ।
9 All. Subhash Chand Vs. State of U.P. & Ors.
405

महोदय माननीय उच्च न्यायलय के आदेश के अनुक्रम में
आपकी सेवा में मृतक आजित कोर्े के अंतगकत उपलभ्द तृतीय
िेणी/चतुथक िेणी के पद पर जनयुजक्त हेतु जदनांक
23.09.2019 में सजर्कफाइि प्रजत के साथ पत्रावली प्रेजषत की
गई थी। जकन्तु महोदय दो वषक से अजिक का समय बीत िाने
के बाद र्ी प्राथी को न तो जनयुजक्त नहीं दी गई और न ही
कोई िवाब जदया गया, िबजक अन्य िनपदों में सामान प्रकरण
में जनयुजक्त दी िा चुकी है जिनकी छायाप्रजत र्ी पत्र के साथ
संलग्नक है।

अतः आपसे अनुरोि है जक प्राथी को माननीय उच्च
न्यायलय के आदेश का पालन करते हुए उपलभ्द तृतीय
िेणी/चतुथक िेणी में यथाशीघ्र जनयुजक्त देने जक कृपा करे। प्राथी
आपका आर्ारी रहेगा।

 सादर िन्यवाद्।"

18. The District Basic Education
Officer on the aforesaid representation
submitted by the petitioner, vide his letter
dated 06.01.2022 sought guidance from the
Secretary, U.P. Basic Education Board,
Prayagraj
in
respect
of
petitioner's
compassionate appointment on a Class-IV
post.

19. When the respondents, in spite of
best efforts of the petitioner and repeated
representations made by him, did not
appoint him on compassionate ground on
Class-III/Class-IV post as directed by this
court vide judgement and order dated
09.11.2012 passed in Writ-A No. 59648 of
2012, petitioner filed Writ-A No. 11879 of
2022 and this court vide order dated
1.09.2022 directed the Secretary, Uttar
Pradesh Basic Education Board, Prayagraj
to
decide
the
representation
of
the
petitioner by speaking and reasoned order.
Operative portion of the order dated
1.09.2022 is extracted as under:

"Considering innocuous prayer being
made by learned counsel for petitioner and
without entering into the merits of the case,
respondent No.2 i.e. Secretary, Uttar
Pradesh Basic Education Board, Prayagraj
is directed to decide representation by
reasoned and speaking order within a
period of six weeks from the date a copy of
this order is produced before him ignoring
the fact of the date of death of petitioner's
father since cause of action to petitioner is
very much surviving considering the
Special Leave Petition of petitioner has
been dismissed in January, 2022 itself and
particularly in view of order dated
01.10.2012 passed in Writ A No. 50727 of
2012 filed earlier by petitioner whereby his
claim was required to be considered
against existing Class III or Class IV
vacancies except those vacancies which
were required to be filled up by promotion.

With the aforesaid observations, the
writ petition stands disposed of."

20. In compliance of the order dated
1.09.2022 passed by this Court in Writ-A
No. 11879 of 2022, Secretary, U.P. Basic
Education Board, Prayagraj has passed an
order on 20.02.2023 whereby petitioner's
case for compassionate appointment has
been rejected on the ground that petitioner
cannot
be
offered
compassionate
appointment after about 11 years from the
date of death of his father. Another reason
given in the order dated 20.02.2023 is that
petitioner has not submitted application on
the prescribed format.

21. Learned counsel appearing for the
petitioner has vehemently argued that the
petitioner immediately after the death of his
father
submitted
application
for
compassionate
appointment
and
that
application was acted upon and petitioner
was given compassionate appointment on
the post of untrained Assistant Teacher but
later on, the District Basic Education
Officer, Baghpat realized his mistake that
the petitioner, in absence of T.E.T.
406 INDIAN LAW REPORTS ALLAHABAD SERIES
qualification,
could
not
have
been
appointed as untrained Assistant Teacher,
therefore, he passed an order whereby
petitioner's services were terminated with
effect from the date of his initial
appointment. Learned counsel appearing
for the petitioner has further argued that
once petitioner submitted an application for
compassionate appointment immediately
after the date of death of his father and the
compassionate appointment offered to the
petitioner was not found as per law and was
cancelled then it was obligatory on the
District Basic Education Officer, Baghpat
to process the petitioner's claim for
compassionate
appointment
on
ClassIII/Class-IV post on the initial application
submitted
by
the
petitioner
for
compassionate appointment.

22. Learned counsel appearing for the
petitioner has vehemently argued that when
petitioner challenged the order whereby his
services were terminated, this court, though
dismissed the writ petition, but directed the
respondents to consider the claim of the
petitioner for appointment on ClassIII/Class-IV post. It was obligatory on the
respondents to comply with the direction
issued by this Court vide judgement and
order dated 9.11.2012 passed in Writ-A No.
59648 of 2012 but the District Basic
Education Officer, Baghpat did not comply
the said direction and kept the matter
pending. Learned counsel appearing for the
petitioner has vehemently argued that the
Respondent No. 3 while passing the
impugned order dated 20.02.2023, under
misconception, has treated the petitioner's
claim for compassionate appointment as
fresh claim and thus has rejected the same
by saying that petitioner cannot be given
compassionate appointment after elapse of
11 years from the date of death of his father
whereas petitioner immediately after the
death of his father raised his claim for
compassionate appointment and in-fact the
said claim was acted upon but due to legal
issue, the appointment of the petitioner was
cancelled, as such, after cancellation of the
appointment of the petitioner, it was
obligatory on the respondents to offer
appointment to the petitioner on ClassIII/Class-IV post.

23. Learned counsel appearing for the
petitioner, in the last, has emphatically
argued that on the one hand due to
ignorance of the District Basic Education
Officer
regarding
legal
provisions,
compassionate appointment granted to the
petitioner on the post of untrained teacher
has been cancelled and on the other hand
Respondent No. 4 has rejected the claim of
the
petitioner
for
compassionate
appointment on Class-III/Class-IV post on
the
ground
that
application
for
compassionate appointment has not been
submitted within the time limit prescribed
under the Government Order whereas
petitioner has submitted application for
compassionate appointment immediately
after the date of death of his father. It has
been further argued that once this Court
vide judgement and order dated 25.07.2012
directed the respondents to consider the
claim of the petitioner for compassionate
appointment against Class-III/Class-IV post
within two months, then it is not open for
the District Basic Education Officer,
Baghpat to reject the claim of the petitioner
for compassionate appointment on the
ground that the compassionate appointment
cannot be given after elapse of about 11
years from the date of death of his father.

24. Learned counsel appearing for the
petitioner has concluded his arguments by
submitting that the order dated 20.02.2023
passed by the Secretary, U.P. Basic
9 All. Subhash Chand Vs. State of U.P. & Ors.
407
Education Board, Prayagraj cannot sustain
in the eyes of law and, therefore, is liable to
be quashed by this Court.

25. Per-contra, learned counsel
appearing for Respondents No. 3 and 4 has
submitted that father of the petitioner died
on 2.08.2008, therefore, claim of the
petitioner for compassionate appointment
on Class-III/Class-IV post, cannot be
allowed after elapse of 15 years, as such,
the Secretary, U.P. Basic Education Board,
Prayagraj while rejecting the case of the
petitioner for compassionate appointment
vide order dated 20.02.2023 has not
committed any illegality.

26. Learned counsel appearing for
Respondents No. 3 and 4 has further argued
that after the death of petitioner's father, he
was given compassionate appointment as
untrained Assistant Teacher on 30.07.2011
but later on, it was found that the said
appointment was not in accordance with
law, as such, the District Basic Education
Officer, Baghpat vide his order dated
28.08.2012 cancelled the said appointment.
Petitioner challenged the cancellation order
dated 28.08.2012 and this Court vide order
dated 9.11.2012 passed in Writ-A No.
59648 of 2012 dismissed the writ petition
in terms of order dated 25.07.2012 passed
in Civil Misc. Writ Petition 33828 of 2012,
Hari Shankar and others vs. State of U.P.
and others and thereby upheld the validity
of the order dated 28.08.2012 and directed
the respondents to consider claim of the
petitioner for a compassionate appointment
against Class-III/Class-IV post but since
petitioner in compliance of the said order
has not submitted his application for
compassionate
appointment
on
ClassIII/Class-IV post, as such, his case for
compassionate
appointment
was
not
considered and now after elapse of 15
years, there is no occasion for considering
the case of the petitioner for compassionate
appointment,
therefore,
order
dated
20.02.2023 passed by the Secretary, U.P.
Basic Education Board, Prayagraj does
suffer from any infirmity or illegality.

27. Learned counsel appearing for the
Respondents No. 3 and 4 has concluded
arguments by submitting that the order
dated 20.02.2023 passed by the Secretary,
U.P. Basic Education Board, Prayagraj
does not suffer from any infirmity or
illegality, therefore, writ petition filed by
the
petitioner,
being
absolutely
misconceived, is liable to be dismissed by
this Court.

28. I have considered submissions
advanced by learned counsels appearing for
the parties.

29. I find that father of the petitioner,
while working on the post of Headmaster,
died in harness on 02.08.2008 and
immediately
thereafter,
petitioner
submitted
an
application
for
his
compassionate
appointment.
The
application submitted by the petitioner, was
acted upon and the District Basic Education
Officer, Baghpat issued appointment order
dated 30.07.2011 whereby petitioner was
appointed as untrained Assistant Teacher. I
further find that aforesaid compassionate
appointment of the petitioner on the post of
untrained Assistant Teacher was later on
cancelled by the District Basic Education
Officer,
Baghpat
vide
order
dated
28.08.2012 on the ground that U.P. Right
of Children to Free and Compulsory
Education Rules, 2011 have been enforced
with effect from 27.07.2011 wherein it has
been provided that no one can be appointed
on the post of teacher unless he has passed
out Teachers Eligibility Test and petitioner
408 INDIAN LAW REPORTS ALLAHABAD SERIES
admittedly
was
not
having
T.E.T.
Certificate.

30. Petitioner challenged order dated
28.08.2012 by filing Writ-A No. 59648 of
2012 which was dismissed by this court in
terms of judgement and order dated
25.07.2012 passed in Writ-A No. 33828 of
2012 (Hari Shankar and others Vs. State of
U.P.
and
others).
This
Court
vide
judgement and order dated 25.07.2012
upheld the validity of the order dated
28.08.2012
whereby
petitioner's
appointment was cancelled but also issued
direction to the respondents to consider the
claim of petitioner against existing ClassIII/Class-IV vacancy preferably within next
two months. The relevant portion of the
judgement and order dated 25.07.2012 is
extracted as under:

"In view of what has been discussed
above, all the writ petitions are dismissed.
The claim of the petitioners be considered
against existing class III/IV vacancies
except qua class III vacancies which are to
be filled up by way of promotion,
preferably within next two months."

31. Once this Court upheld the
validity of order dated 28.08.2012 whereby
compassionate
appointment
of
the
petitioner on the post of untrained Assistant
Teacher was cancelled and direction was
issued to the respondents to consider claim
of the petitioner against Class-III/Class-IV
vacancies then it was obligatory upon the
respondents to consider the claim of the
petitioner for compassionate appointment
on Class-III/Class IV post within a period
of two months but respondents utterly
failed to carry out directions issued by this
Court vide judgement and order dated
25.07.2012 passed in Civil Misc. Writ
Petition No. 33828 of 2012.

32. The Secretary, U.P. Basic
Education Board, Prayagraj while passing
order dated 20.02.2023 thereby rejecting
the claim of the petitioner for his
compassionate appointment on a ClassIII/Class-IV post on the ground that
compassionate appointment cannot be
offered after elapse of about 11 years, has
not only acted illegally but in-fact has also
violated the direction issued by this Court
vide judgement and order dated 25.07.2012
passed in Civil Misc. Writ Petition No.
33828 of 2012.

33. This Court is of the view that the
District Basic Education Officer, Baghpat
cannot blow hot and cold together i.e. on
the one hand, he has not complied with the
direction issued by this Court vide
judgement and order dated 25.07.2012
passed in Civil Misc. Writ Petition No.
33828 of 2012 and on the other hand, he
has rejected the claim of the petitioner for
compassionate appointment on the ground
the
petitioner
cannot
be
offered
compassionate appointment after elapse of
11
years.
Once
petitioner
submitted
application for compassionate appointment
immediately after the death of his father, it
was obligatory on the part of the District
Basic Education Officer, Baghpat to offer
him a legal appointment but in the case of
petitioner, the District Basic Education
Officer, Baghpat appointed him on the post
of untrained Assistant Teacher, though as per
law, said appointment could not have been
made, therefore, after cancellation of the said
appointment, it was the duty of the District
Basic Education Officer to consider the claim
of
compassionate
appointment
of
the
petitioner on Class-III/Class-IV post but he
utterly failed to do so, therefore, now it is not
open for him to take excuse that 11 years
have elapsed and, therefore, petitioner cannot
be
offered
compassionate
appointment.
9 All. Mohd. Ismail & Ors. Vs. State of U.P. & Anr.
409

34. So far as the issue as to whether
compassionate appointment can be offered
after elapse of 11 years from the date of death
of the government servant, is concerned, I
find that in normal circumstances when the
application
for
the
compassionate
appointment is filed with considerable delay
then the law in that regard is very clear that
the compassionate appointment is offered to
meet out instant financial crisis faced by the
family of deceased government servant,
therefore,
where
the
application
for
compassionate
appointment
has
been
submitted with considerable delay, the
compassionate
appointment
cannot
be
offered but case of the petitioner stands on
entirely different footing as petitioner applied
for compassionate appointment immediately
after the death of his father and even he was
issued appointment order but later on, it was
found that the said appointment of the
petitioner was dehors the rules, therefore, it
was incumbent on the District Basic
Education Officer to offer compassionate
appointment to the petitioner on ClassIII/Class-IV post.

35. The District Basic Education
Officer, Baghpat even has not complied with
the direction issued by this Court vide
judgement and order dated 25.07.2012 passed
in Civil Misc. Writ Petition No. 33828 of
2012, therefore, this plea is not available to
him
that
case
of
the
petitioner
for
compassionate
appointment
on
ClassIII/Class-IV post cannot be considered after
elapse of 11 years.

36. I am also of the considered view
that in-fact after passing of the judgement and
order dated 25.07.2012 passed in Civil Misc.
Writ Petition No. 33828 of 2012, there is no
requirement for the petitioner to file fresh
application for compassionate appointment as
petitioner after the death of his father has
already filed application for compassionate
appointment, therefore, the District Basic
Education Officer was under mandate of the
Court to consider claim of the petitioner
against existing Class-III/Class IV vacancy
but instead of complying the said order, the
Secretary, U.P. Basic Education Board,
Prayagraj
deliberately
kept
the matter
pending and, therefore, the order dated
20.02.2023 thereby rejecting the claim of the
petitioner for compassionate appointment on
the ground that 11 years have elapsed, is not
sustainable in the eyes of law and, thus is
liable to be quashed by this Court.

37. In view of the aforesaid reasons,
this Writ Petition is allowed and order dated
20.02.2023 passed by the Secretary, U.P.
Basic Education Board, Prayagraj is quashed.

38. Matter is remanded to the
Secretary, U.P. Basic Education Board,
Prayagraj to consider the case of the
petitioner for compassionate appointment
on Class-III/Class-IV post in accordance
with the observations made in this order
and the directions issued by this Court
vide
judgement
and
order
dated
25.07.2012 rendered in Civil Misc. Writ
Petition No. 33828 of 2012 within two
months from the date of service of
certified copy of this order.
----------
(2023) 9 ILRA 409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 13210 of 2023

Mohd. Ismail & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents