पिता पेंशनभोगी तो भी सेवारत मां की मौत पर बेटी को दें अनुकंपा नियुक्ति, हाईकोर्ट ने मुरादाबाद के बीएसए के आदेश को रद्द कर नया पारित करने को कहा

पिता पेंशनभोगी तो भी सेवारत मां की मौत पर बेटी को दें अनुकंपा नियुक्ति, हाईकोर्ट ने मुरादाबाद के बीएसए के आदेश को रद्द कर नया पारित करने को कहा

देखें कोर्ट ऑर्डर 

प्रयागराज। इलाहाबाद हाईकोर्ट ने कहा कि पिता पेंशनभोगी है, तब भी सहायक अध्यापक के पद पर कार्यरत मां की मौत पर बेटी अनुकंपा नियुक्ति की हकदार है। कोर्ट ने यह टिप्पणी कर मुरादाबाद के बीएसए के आदेश को रद्द कर छह सप्ताह के भीतर नया पारित करने के लिए कहा है।

यह आदेश प्रकाश पाडिया की अदालत ने मुरादाबाद की फरहा नसीम की याचिका पर दिया। दो नवंबर 2023 को सहायक अध्यापक के पद पर कार्यरत रहीं नसीम की मां शहाना बी की मौत हो गई थी। नसीम ने बीएसए के समक्ष अनुकंपा नियुक्ति के लिए आवेदन किया। नसीम की बहनें सहायक शिक्षक के रूप में कार्यरत हैं।

वहीं, पिता सेवानिवृत्ति के बाद पेंशन प्राप्त कर रहे हैं। ऐसे में याची को कोई वित्तीय संकट नहीं है। इन्हीं दो बिंदुओं को आधार बना बीएसए के 12 जून 2024 के आदेश से अनुकंपा नियुक्ति के आवेदन को खारिज कर दिया गया।

HIGH COURT OF JUDICATURE AT ALLAHABAD

Neutral Citation No. - 2024:AHC:154724

Court No. - 7

Case :- WRIT - A No. - 13350 of 2024

Petitioner :- Kumari Farha Naseem

Respondent :- State Of Up And 2 Others

Counsel for Petitioner :- Kamal Kumar Kesherwani

Counsel for Respondent :- Akanksha Sharma,C.S.C.

Hon'ble Prakash Padia,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no.1, Ms. Akanksha Sharma, learned counsel for the respondents no.2 & 3 and perused the records.

2. The order dated 12.06.2024 passed by the respondent no.3-District Basic Education Officer, Moradabad by which the claim for compassionate appointment of the petitioner has been rejected, is under challenged in the present writ petition.

3. The facts in brief as contained in the writ petition is that mother of the petitioner namely Smt. Shahana Bi while working on the post of Assistant Teacher died on 02.11.2023. After her death petitioner submitted online application for compassionate appointment, copy of which is appended as annexure-5 to the writ petition. It is stated in paragraph 11 of the writ petition that other family members of the petitioner has given no objection certificate along-with notary affidavit in favour of the petitioner before the District Basic District Basic Education Officer, Moradabad/respondent no.3 in which they have stated that if the appointment is offered to the petitioner they have no objection.

4. It is argued by counsel for the petitioner that wholly illegally without considering relevant aspect of the matter claim for compassionate appointment has been rejected by the District Basic Education Officer, Moradabad/respondent no.3 vide its order dated 12.06.2024 on the following grounds (1) the sisters of the petitioner are working as Assistant Teacher but their marital status is not on record (2) petitioner's father was retired employee and getting pension, hence petitioner has no financial stress.

5. It is stated in paragraph 13 of the writ petition that father of the petitioner namely Nasim Ahmad was working in the District Court, Sambhal at Chandausi, who retired from service on 30.10.2018 after attaining age of superannuation and is getting pension, so there is no dispute about the employment of the petitioners' father prior to death of her mother hence impugned order passed by the respondent no.3 is not sustainable in the eyes of law. In so far as second ground taken regarding marital status of the sisters of the petitioner is concerned, it is stated that both the sisters were married prior to death of their mother and enquiry in this regard was conducted by the authorities in which

is found that they have been married prior to death of their mother. It is further argued that in case sisters of the petitioner are working somewhere else it will not effect the consideration of the appointment of petitioner on compassionate ground. He placed reliance upon judgement and order dated 09.02.2016 passed in Special Appeal Defective No.73 of 2016 (Kr. Vanshika Nigam Vs. State of U.P. and 3 others) Neutral Citation No. - 2016:AHC:24233-DB. The order dated 09.02.2016 reads as follows :-

"The mother of the appellant was a Staff Nurse employed in a government hospital. It is not in dispute that she died in harness on 22 February 2014. The appellant sought compassionate appointment, but her application was rejected by the Chief Medical Superintendent on 11 May 2015 on the ground that the appellant did not fall within the purview of the Uttar Pradesh Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974. No specific reason was adduced in the order of the Chief Medical Superintendent as to why the appellant did not fulfill the requirements of the Rules of 1974.

The learned Single Judge has proceeded on the basis that since the father of the appellant is a retired employee and is alive, this would be deemed to mean that the appellant is dependent upon her father.

We are not in agreement with the view which has been expressed by the learned Single Judge. An inference to the effect that the appellant is dependent upon her father cannot be drawn merely on the basis that her father is alive. During the course of the hearing, it is an agreed position that the father of the appellant was a Class-III employee in the Nagar Nigam and he has since retired and is in receipt of the pension. The adequacy of the means and resources available with the father and the issue of dependency have to be considered by the competent authority. The order of the competent authority was clearly a non-speaking order. Hence, the learned Single Judge ought to have remanded the proceedings back to the competent authority for fresh consideration after due consideration of all the relevant facts and circumstances.

We, accordingly, allow the special appeal and set aside the impugned order dated 23 November 2015. We direct the competent authority to reconsider the application submitted by the appellant after duly keeping in mind all the relevant circumstances as mandated by the Rules of 1974.

The special appeal is, accordingly, disposed of. There shall be no order as to costs."

6. He further placed reliance upon a judgement and order dated 09.11.2021 passed in Writ A No.14123 of 2021 (Shobhit Saxena Vs. State of U.P. and 2 others) Neutral Citation No. - 2021:AHC:132764. He also placed reliance upon the order dated 26.07.2024 passed in Writ A No.8787 of 2024 (Pramod Kumar Vs. State of U.P. and 2 others) Neutral Citation No. - 2024:AHC:120155.

7. From perusal of the record, it is clear that the claim for compassionate appointment of the petitioner was rejected on two grounds, namely (1) the sisters of the petitioner are working as Assistant Teacher but their marital status is not on record (2) petitioner's father was retired employee and getting pension hence petitioner has no financial stress.

8. From perusal of the record as well as the law laid down by this Court in the case of Kr. Vanshika Nigam (supra), both the aforesaid grounds are not sustainable in the eyes of law.

9. In this view of the matter, the order dated 12.06.2024 passed by the District Basic Education Officer, Moradabad/respondent no.3 is liable to be set aside and the same is hereby set aside.

10. The respondent no.3 is directed to pass fresh order strictly in accordance with law most expeditiously and preferably within a period of six weeks from the date of production of certified copy of this order.

Order Date :- 23.9.2024