# Subhash Chandra v. District Basic Education Officer, Barabanki & Anr

- **Citation:** (2023) 2 ILRA 817
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-13
- **Case number:** Writ-A No. 6616 of 2007
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chandra-v-district-basic-education-officer-barabanki-anr-49742
- **Pages:** 3

## Headnote

Law
-
Compassionate
Appointment - Payment of Salaries Act,
1978 - U.P. Basic Education Act, 1972 -
U.P. Recognized Basic Schools (Junior
High
Schools)
(Recruitment
And
Conditions Of Service Of Teachers) Rules,
1978 - Dying-in-Harness Rules, 1974 -
Merely bringing the institution on the
grant-in-aid
list
(with
effect
from
01.12.2006) after the date of death of
petitioner's father (his father died on
10.12.2001, i.e. prior to 01.12.2006) does
not bar the claim of the petitioner for
being considered for the appointment on
compassionate grounds. (Para 10, 11)

The compassionate appointment in the Primary
School as well as in the Junior Basic School is
made under the GO adopting the Dying-inHarness Rules, 1974. The GO does not create
any discrimination amongst the claims raised by
the candidates whether the institution is
receiving aid from the State Government or it is
recognized institution under the provisions of
U.P. Basic Education Act, 1972. It is not the
case of the District Basic Education Officer that
the institution was not recognized under the
provisions of U.P. Basic Education Act, 1972 at
the relevant point of time. (Para 11)

Writ petition allowed. (E-4)

Present
petition
assails
order
dated
21.09.2007,
and
further
prays
for
consideration of claim for appointment on
compassionate grounds on Class IV post.

## Text

2 All. Subhash Chandra Vs. District Basic Education Officer, Barabanki &Anr.
817

4. In second line of paragraph 6 and
second line of last paragraph of the order
dated 6.2.2023, in place of 'Nagar Nigam,
Jhansi', it should be read as 'Nagar Nigam,
Varanasi'.
----------
(2023) 2 ILRA 817
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.01.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 6616 of 2007

Subhash Chandra ...Petitioner
Versus
District Basic Education Officer, Barabanki
& Anr. ...Respondents

Counsel for the Petitioner:
Ved Prakash Nag, Abhinav Nath Tripathi,
Amrendra Nath Tripathi

Counsel for the Respondents:
Prashant Arora, Rahul Shukla

A.
Service
Law
-
Compassionate
Appointment - Payment of Salaries Act,
1978 - U.P. Basic Education Act, 1972 -
U.P. Recognized Basic Schools (Junior
High
Schools)
(Recruitment
And
Conditions Of Service Of Teachers) Rules,
1978 - Dying-in-Harness Rules, 1974 -
Merely bringing the institution on the
grant-in-aid
list
(with
effect
from
01.12.2006) after the date of death of
petitioner's father (his father died on
10.12.2001, i.e. prior to 01.12.2006) does
not bar the claim of the petitioner for
being considered for the appointment on
compassionate grounds. (Para 10, 11)

The compassionate appointment in the Primary
School as well as in the Junior Basic School is
made under the GO adopting the Dying-inHarness Rules, 1974. The GO does not create
any discrimination amongst the claims raised by
the candidates whether the institution is
receiving aid from the State Government or it is
recognized institution under the provisions of
U.P. Basic Education Act, 1972. It is not the
case of the District Basic Education Officer that
the institution was not recognized under the
provisions of U.P. Basic Education Act, 1972 at
the relevant point of time. (Para 11)

Writ petition allowed. (E-4)

Present
petition
assails
order
dated
21.09.2007,
and
further
prays
for
consideration of claim for appointment on
compassionate grounds on Class IV post.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Anas Sherwani, learned
Advocate holding brief of Shri Amrendra
Nath Tripathi, learned counsel for the
petitioner and Shri Rahul Shukla, learned
counsel for the respondent no.1.

2. None has put in appearance for the
respondent no.2 in spite of notice issued to
the respondent no.2.

3. By means of the present writ
petition, the petitioner has prayed for
issuance of a writ in the nature of Certiorari
quashing
the
impugned
order
dated
21.9.2007 (Annexure-9 to the writ petition)
with further prayer to issue a writ in the
nature of Mandamus commanding the
respondents to consider the petitioner's
claim
and
give
appointment
on
compassionate grounds on Class IV post.

4. Factual matrix of the case is that
father of the petitioner died while in service
working on the post of Assistant Teacher in
the School. At the time of death of the
father of the petitioner he was getting scale
of trained teacher. The petitioner is fully
dependent on his father. The petitioner had
completed intermediate education at the
818 INDIAN LAW REPORTS ALLAHABAD SERIES
time of death of his father and moved
application
on
9.5.2002
for
giving
appointment on compassionate grounds.
The application of the petitioner was
received by the Manager of the School and
was duly forwarded to the respondent no.1
where the application was received on
11.9.2002. The petitioner also submitted
his application on prescribed format, but
nothing was done by the District Basic
Education Officer on his application.

When the respondents did not
consider the claim of the petitioner for
appointment on compassionate grounds, the
petitioner filed a writ petition bearing Writ
Petition No.1432 (SS) of 2007 before this
Court. Vide order dated 21.3.2007 this
Court directed the respondent no.1 to pass
an order for appointment on compassionate
grounds. The petitioner, due to noncompliance of the said order, filed
Contempt Petition No.1869 of 2007 in
which notice was issued to District Basic
Education Officer (respondent no.1) fixing
24.9.2007. The District Basic Education
Officer has now passed an order on
21.9.2007 whereby the claim of the
petitioner has been rejected on the ground
that the institution in question was brought
within purview of Payment of Salaries Act,
1978 with effect from 1.12.2006 and the
father of the petitioner died on 10.12.2001,
therefore the claim of the petitioner cannot
be considered for the grant of appointment
on compassionate ground.

5. Submission of learned counsel for
the petitioner is that the assumption drawn
by the District Basic Education Officer is
wholly erroneous in nature. The institution
is recognized under the provisions of the
U.P. Basic Education Act, 1972 and
teachers and other employees are granted
appointment after due approval of the
District Basic Education Officer in the
institution. The institution if taken grant-inaid list, the liability for the payment of
salary arose on the shoulder of the State
Authority.

6. Learned counsel for the petitioner
next submits that the impugned order is
wholly illegal and is liable to be quashed
by this Court. There is no rider under the
U.P. Basic Education Act, 1972 or there is
any provision under the Basic Education
Act to make appointment on compassionate
ground in case the institution is not
receiving aid from the State Government.
He next submits that the impugned order
dated 21.9.2007 is per se illegal and cannot
be sustained and therefore, is liable to be
set aside.

7. On the other hand, Shri Rahul
Shukla, learned counsel for respondent
no.1, in support of the impugned order,
submits that the same does not suffer from
infirmity or illegality and is just and valid
order. He next submits that the institution
was not receiving aid from the State
Government, therefore under bonafide
belief the claim of the petitioner was
rejected on the ground that no appointment
can be made in the institution which is not
receiving aid from the State Government.

8. Learned counsel for the respondent
no.1 next submits that the writ petition is
devoid of merits and is liable to be set aside
with heavy cost.

9. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

10. On perusal of the impugned order
it is evident that the only ground has been
taken in the impugned order that father of
2 All. Shivram Vs. State of U.P. & Ors.
819
the petitioner died on 10.12.2001 and the
institution was brought within the purview
of Payment of Salaries Act with effect from
1.12.2006, therefore the institution being
not received aid from the State Government
no appointment on compassionate ground
can be made. It is also evident that the
District Basic Education Officer has
recorded no finding in regard to grant of
approval to the appointment made in the
institution duly recognized under the
provisions of U.P. Basic Education Act,
1972 and provision of the U.P. Recognised
Basic Schools (Junior High Schools)
(Recruitment And Conditions Of Service
Of Teachers) Rules, 1978 does not contain
bar in making compassionate appointment
in case institution is not receiving aid from
the State Government.

11. The compassionate appointment
in the Primary School as well as in the
Junior Basic School is made under the
Government Order adopting the Dying-inHarness Rules, 1974. The Government
Order does not create any discrimination
amongest
the
claims
raised
by
the
candidates
whether
the
institution
is
receiving aid from the State Government or
it is recognized institution under the
provisions of U.P. Basic Education Act,
1972. It is not the case of the District Basic
Education Officer that the institution was
not recognized under the provisions of U.P.
Basic Education Act, 1972 at the relevant
point of time. Mere bringing the institution
on the grant-in-aid list with effect from
1.12.2006 does not bar the claim of the
petitioner for being considered for the
appointment on compassionate grounds.

12. Considering the fact that the
impugned order does not record cogent
reason in rejecting the claim of the
petitioner, the impugned order dated
21.9.2007 is hereby quashed. The District
Basic Education Officer, Barabanki is
directed to consider the claim of the
petitioner
for
the
appointment
on
compassionate grounds in the light of the
observations made above and appropriate
order in this regard shall be passed within a
period of six weeks from the date of
production of a certified copy of this order.

14. In the result, the writ petition is
allowed.
----------
(2023) 2 ILRA 819
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ-C No. 22728 of 2005

Shivram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.C. Verma, Sri Murtuza Ali, Sri Devesh
Kumar Verma

Counsel for the Respondents:
C.S.C.

d- vko";d oLrq vf/kfu;e] 1955 & /kkjk 11
& "kklukns"k fnukad 03-07-1990 & [k.M 1⁄47-11⁄2
& mfpr ewY; dh nqdku & vuqcU/k&i«k dk
fujLrhdj.k & vko";d oLrqvksa ds forj.k esa
iz/kku }kjk vfu;ferrk dk vkjksi & "kklukns"k
fnukad 03-07-1990 ds varxZr fujLrhdj.k ds iwoZ
izkjafHkd tkap ,oa lquokbZ dk vkolj vko";d
& tcfd "kklukns"k fnukad 29-07-2007 }kjk
lquokbZ dk volj lhfer fd;k x;k & izHkko &
vfHkfu/kkZfjr fd;k x;k & [k.Mu tc dk gS] ml
le; forj.k vkns"k 2004 iz;ksT; Fkk rFkk
"kklukns"k fnukafdr 29-07-2004 Hkh Ykkxw FkkA