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Alllahabad High Court allows petition challenging order passed by District Basic Education Office

The Allahabad High Court has allowed the petition challenging the order dated 26.12.2022 passed by the District Basic Education Officer, Gorakhpur, whereby petitioner’s application for her compassionate appointment has been rejected.

A Single Bench of Justice Manjive Shukla passed this order while hearing a petition filed by Kumari Nisha.

The facts of the case are that the father of the petitioner while working on the post of Headmaster at Primary School Manikapur, Block Belghat District Gorakhpur, died in harness on 07.12.2019. On the date of death of the petitioner’s father, there remained a widow (mother of the petitioner), two unmarried sons and unmarried daughter in the family. Petitioner is permanently disabled and her disability has been quantified to the tune of 75% and further she has been completely dependent on the earnings of her father.

Petitioner’s elder brother Deepak Kumar is a government servant in the Provincial Armed Constabulary (PAC) of U.P and is posted at District Jaunpur. Deepak Kumar along with his family is residing at District Jaunpur.

Petitioner after the death of her father submitted application for her compassionate appointment and along with the said application, she also filed an affidavit given by her elder brother, wherein he has categorically stated that he is in government job but is residing separately from his parents and he has no objection if the compassionate appointment in lieu of death of his father is offered to the petitioner.

The District Basic Education Officer, Gorakhpur has rejected the application of the petitioner for her compassionate appointment vide order dated 26.12.2022. The ground for rejection of the petitioner’s application for compassionate appointment is that the eldest son of late Indra Dev (father of the petitioner) is employed in the Provincial Armed Constabulary (PAC) of the State of U.P and therefore, there is no financial stress with the family of late Indra Dev and further since eldest son of the deceased teacher is employed with the State Government, the compassionate appointment of the member of the family is not permissible under U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974.

Counsel appearing for the petitioner has submitted that the legislature while making amendment in the Rules of 1974 by promulgating Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness (Fifth) Amendment Rules, 1999, was conscious of the fact that even if one son of the deceased government servant is in employment, that cannot be a reason for denying the compassionate appointment to other son or daughter (as the case may be) as the earnings of the employed son may be utilized for his family alone and may not be available for the sustenance of the remaining family of the deceased government servant therefore, only one exception has been carved out and it has been provided that where surviving spouse of deceased government servant is in government job, compassionate appointment shall not be offered to any other family member of the deceased government servant.

Counsel appearing for the petitioner has argued that once there is no such prohibition either under the Rules of 1974 or under the Government order dated 04.09.2000 that if one son or daughter is in government job, the compassionate appointment shall not be given to other son or daughter (as the case may be) dependent on the deceased government servant therefore, apparently order dated 26.12.2022 passed by the District Basic Education Officer, Gorakhpur is against the spirit of the Rules of 1974 and the Government order dated 04.09.2000 and accordingly cannot sustain in the eyes of law.

Counsel appearing for the petitioner has also vehemently argued that once brother of the petitioner Mr. Deepak Kumar has given affidavit before the District Basic Education Officer, Gorakhpur categorically mentioning therein that he is residing separately from his parents therefore, unless there was sufficient evidence, there was no occasion for the District Basic Education Officer, Gorakhpur to reject petitioner’s application for compassionate appointment on the ground that brother’s income is being utilized for sustenance of the family of late Indra Dev (deceased teacher) accordingly, order dated 26.12.2022 cannot sustain in the eyes of law.

Per contra, Ashish Kumar Nagvanshi, counsel appearing for the Respondents No 3 and 4 has contended that the District Basic Education Officer, Gorakhpur has considered the entire matter and has found that on the date of death of petitioner’s father, her brother was in government job and therefore, surviving family of late Indra Dev (deceased teacher) was not in financial stress and accordingly petitioner’s case for compassionate appointment has been rejected vide order dated 26.12.2022.

The Court considered the rival submissions advanced by the counsels appearing for the parties and the Court found that the District Basic Education Officer, Gorakhpur has rejected the petitioner’s case for compassionate appointment on following two grounds :

(i) Petitioner’s brother is in government job and therefore, she is not entitled for compassionate appointment under the Rules of 1974.

(ii) Since petitioner’s brother was in government job on the date of death of her father and he was unmarried therefore, his earnings were sufficient for sustenance of the surviving family.

The Court further found that initially Rule 5(1) of the Rules of 1974 provided for compassionate appointment to one family member dependent on the deceased government servant provided he is not in government job meaning thereby that there was only one condition where the compassionate appointment could have been refused i.e. person seeking compassionate appointment was already in government job.

Later on, Rule 5(1) of the Rules of 1974 was amended in the year 1999 and amended Rule 5(1) provides that if the surviving spouse of the deceased government servant is in government job then the other family members dependent on the deceased government servant shall not be entitled for compassionate appointment.

The Court also found that the legislature while amending Rule 5(1) of the Rules of 1974 was conscious of the fact that if one son of the deceased government servant is in government job, his earnings may not be available for survival of the remaining family members of the deceased government servant for the reason that the earnings of the son are meant for survival of his own family (his wife and children) and therefore only one prohibition has been incorporated that if the surviving spouse of the deceased government servant is in government job, the other dependent family members are not entitled for compassionate appointment.

The court is of the view that once there is no prohibition under the Rules of 1974 and the Government order dated 04.09.2000 wherein identical provision has been made for the compassionate appointment on the death of a teacher, that if one son of the deceased teacher is in government job, the other dependent family member of the deceased teacher is not entitled for compassionate appointment, there cannot be any occasion for the District Basic Education Officer, Gorakhpur to reject petitioner’s case for compassionate appointment on the ground that her brother is in government job. Petitioner’s brother has given his affidavit, wherein he has categorically stated that though he is in government job but is residing separately from his parents, therefore, unless there was some material before the District Basic Education Officer, Gorakhpur, he could not have recorded a finding that since petitioner’s brother is in government job, his earnings are sufficient for sustenance of surviving family of the deceased teacher accordingly, order dated 26.12.2022 is not sustainable in the eyes of law.

In view of the aforesaid reasons, the Court allowed the petition.

The Court quashed the order dated 26.12.2022 passed by the District Basic Education Officer, Gorakhpur.

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