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Kumari Nisha v. State of UP & 3 Others

W.P. No. 16068/2023

Before High Court of Allahabad

Writ Petition was allowed and order of the District Basic Education Officer, Gorakhpur was set aside by Hon’ble Mr. Justice Manjive Shukla J on 08.02.2024.

The matter was remanded back to the DBEO to pass fresh order within 2 months.

Background

Petitioner Nisha has challenged the order dt. 26.12.2022 of District Basic Education Officer (DBEO), Gorakhpur, where by her application for compassionate appointment was rejected.

Facts

The father of the petitioner, a Head Master at Primary School Manikpur, Gorakhpur died in harness on 07.12.2019 leaving behind widow, 2 unmarried son and 2 unmarried daughters.

Petitioner Nisha is permanently disabled and completely dependent on the earnings of her father.

Petitioner’s elder brother Mr. Deepak Kumar is a government servant in the PAC of U.P. and is living with his family at his place of posting at Jaunpur.

Petitioner submitted an application along with the NOC of her elder brother stating that he has no objection if petitioner is given appointment in lieu of death of his father.

The DBEO rejected the application of the petitioner on the ground since eldest son of the deceased is working and is in the service of State Government therefore there is no stress with the family.

Moreso, when the eldest son of the deceased is employed with the Ste Government, the compassionate appointment to the other member of the family is not permissible under U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974.

Submission of the Counsel of the petitioner

The eldest son of the deceased teacher categorically submitted before DBEO on Affidavit that he is separately residing from his parents.

There is no material available with the DBEO to infer that the petitioner’s brother is providing sufficient financial support to the family of his late father.

5th Amendment to UP Pension Rules 1974 was made in 1999 as legislature was aware in case the eldest son of the deceased is in state government employment, the earning of the government servant would be utilized for his family alone and may not be available for the sustenance of the remaining family of the deceased government servant.

Therefore, compassionate appointment to other siblings can’t be denied.

Exception: 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

Wherefore order dt. 26.12.22 can’t sustain in the eyes of law.

Submission of the Counsel of the State

On the date of death of the deceased teacher the eldest son was in government job and the family was not in stress therefore DBEO has rightly rejected the application.

Compassionate Appointment can’t be claimed as a matter of right.

Observation of the Court

Petitioner’s brother has given an affidavit, categorically stating 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.

Seema Bhatnagar