Rais Ahmad vs Dios and Others

Devi Prasad Singh, J.—Case called out. None appears for the opposite parties 2 and 3.

Heard learned Counsel for the petitioner and learned Standing Counsel.

In spite of lapse of almost sixteen years, no counter affidavit has been filed. Hence, there is no option except to decide the writ petition finally on the basis of the pleading on record.

The petitioner''s counsel submits that the petitioner''s father was Assistant Teacher in L.T. Grade in Mahesh Vidya Niketan Inter College, Unchahar, District Raebareli. He died in harness on 26.12.1990. After his death, the petitioner moved an application for appointment on compassionate ground under regulations framed under U.P. Intermediate Education Act (in short, Act). Since there was no vacancy in Mahesh Vidya Niketan Inter College, Unchahar, District Raebareli, the District Inspector of Schools has issued an order dated 7.9.1993 for the petitioner''s appointment in Sri Govindpur Inter College, Rautapur, District Raebareli. However, the order dated 7.9.1993 has not been complied with by the Committee of Management.

It is unfortunate that even after lapse of sixteen years, the petitioner could not get appointment though he has got statutory right under the regulations framed under the Act to get appointment. The Regulations framed under the Act have conferred statutory power to the District Inspector of Schools to adjust the dependent of the deceased teacher in any institution of the district. The order passed by the District Inspector of Schools is perfectly within jurisdiction. It was incumbent on the Committee of Management, opposite party No. 3 to comply with the order passed by the D.I.O.S. but the same seems not to have been complied with.

In case the opposite party No. 3 had not complied with the order passed by the District Inspector of Schools, then it was incumbent on the latter to take coercive action against the former (opposite party No. 3) in accordance with the Act and the Regulations framed thereunder. Inaction on the part of the D.I.O.S., Raebareli has kept the petitioner''s career hanging.

Right to livelihood is a fundamental right guaranteed under Article 21 of the Constitution of India. The D.I.O.S. should have taken action to ensure compliance of his own order but it appears that he has not taken any steps to ensure compliance of his own order. The order could have been implemented by placing the college under single operation or authorised controller could have been appointed but the same has not been done.

From the provisions contained in the Act and the Regulations framed there under, the petitioner has got statutory right to seek appointment as dependent of the deceased employee/Assistant Teacher. None-compliance of the order amounts to curtailing the petitioner''s statutory right. Since the petitioner has been suffering for no fault on his part, he seems to be entitled for back wages also from retrospective effect. He cannot be penalised for inaction on the part of the Committee of Management or the D.I.O.S.

In view of above, the writ petition is allowed. A writ in the nature of mandamus is issued directing the opposite parties 1 and 3 to ensure that the petitioner is permitted to resume duty forthwith and be paid salary. The petitioner shall be entitled for payment of salary and continuity of service from 1.10.1993 with all consequential benefits. However, since the petitioner has not discharged duty during the period in question, in view of various pronouncements of Hon''ble Supreme Court, the arrears of salary is confined to 50% admissible under the Rules. Let the arrears of salary be paid within a period of three months from the date of service of a certified copy of the present order. The petitioner shall be permitted to resume duty with effect from 1.6.2010.

Subject to above, the writ petition is allowed. No order as to costs.