Full Judgment
D.K. Seth, J.
1. One Shri Brahma Singh, a Class-IV employee of the school had died on 13th September, 1991. His son Sri Arvind Kumar having the requisite qualification was appointed as an Assistant Teacher under the Dying-in-Harness Rules in the same school. The vacancy of the Class IV staff which still remains vacant was sought to be filled up by the school, to which the District inspector of Schools had granted permission vide his letter dated 16th November, 1995. Whereupon process for selection was initiated by advertising the vacancy and also seeking names from the Employment Exchange. Thereafter, selection wasmade out of candidates applying for such appointment and the petitioner was selected and given appointment. The papers were forwarded to the District Inspector of Schools on 5th December. 1995. No approval having come within the prescribed period. Appointment letter was issued to the petitioner on 15th January, 1996. The District Inspector of Schools having not granted the financial approval. Writ Petition No. 26924 of 1996 was moved, it was disposed of on 23rd August, 1996. by directing the District Inspector of Schools to consider the question of grant of approval to the appointment of the petitioner. The District Inspector of Schools by his order dated 28th September, 1996. refused to grant the approval of the appointment of the petitioner on the ground that one Class IV employee working in the Institute died on 20th April, 1995 and that no regular appointment could be made except appointment under the Dying-in-Hamess Rules. This order dated 28th September, 1996, has since been challenged in his writ petition.
2. Mr. V. K. Singh learned counsel for the petitioner had relied upon the decision in the case of Syed Athar All v. District Inspector of Schools, Bareilly and another, 1995 (2) UPLBEC 968. in support of his contention that the non-filling up of a post under the Dying-in-Harness Rules does not prohibit regular appointment.
3. Km. Ainakshi Sharma, learned brief holder for the State contends that the order passed by the District Inspector of Schools is Justified and valid. No appointment could be made except those under the Dying-in-Harness Rules and that when the appointment under the Dying-in-Harness Rules is awaited, the approval of the petitioner's appointment could not have been granted.
4. I have heard both the counsel at length.
5. Admittedly, the petitioner was appointed against the vacancy of Class IV employee that came into existence on 13th September. 1991,on account of death of Sri Brahama Singh whose heir was appointed under the Dying-in-Harness Rules as Assistant Teacher keeping the post of Class IV vacant. Thus the said vacancy remains no more a vacancy to be filled up under the Dying-in-Harness Rules. During the question of filling up of the said vacancy, another vacancy occurred on account of the death of another Class IV employee on 20th April, 1995. By reason of these vacancies, a regular appointment cannot be said to be prohibited which had been undertaken with the permission of the District Inspector of Schools following the relevant rules. After having accorded permission to recruit, it is not open to the District Inspector of Schools to refuse approval, when sought for, on some extraneous ground. It appears from the said order that the ground taken is wholly extraneous to the present case. In the case of Syed Athar Ali (supra), this Court had taken a view that though the provision introduced on 30th July, 1992 provides a scheme of appointment of the dependent of an employee dying-in-harness. the same does not exclude appointment of other candidates in the vacancy not filled on compassionate ground.
6. A bare perusal of the provision of Regulations 101 to 107 framed under U. P. Intermediate Education Act, 1921, shows that the provisions were made for appointment on compassionate ground. But the said provision did not exclude the scope of appointment of ordinary candidates by direct recruitment. In the present case, the petitioner has been sought to be appointed against the vacancy arising on 13th September. 1991, on account of death of Sri Brahama Singh whose heir has since been appointed in the post of Assistant Teacher keeping the Class IV post vacant. Thus, the said vacancy became a regular vacancy which could be filled up by direct recruitment. The death of another Class IV employee on 20th April, 1995, cannot stand in the way of filling up of vacancy that had occurred on 13th September, 1991 and remained a regular vacancy. It isapparent that the District Inspector of Schools has proceeded on the basis of misreading of the said provision while passing the impugned order. It is not contended that the said vacancy was already recommended for being filled up by a candidate on compassionate ground before the appointment of the petitioner.
7. Thus, in such circumstances. the refusal of approval of appointment of the petitioner cannot be sustained. Following the ratio decided in the decision in the case of Syed Athar Ali (supra), this writ petition is disposed of by quashing the impugned order dated 28th Saptember, 1996, contained in Annexure-10 to the writ petition and directing the District Inspector of Schools to consider the question of grant of approval of petitioner's appointment as early as possible preferably within a period of three months from the date of communication of this order.
8. Let a writ of certiorari do issue accordingly. Let a writ of mandamus do Issue accordingly.
9. The writ petition is, thus,disposed of. However, there will be noorder as to costs.