Compassionate Appointment On Teacher Post Compromises Quality Of Education, Violating Article 21A: Allahabad High Court Strikes Down GOs

While holding that compassionate appointment of teachers compromises quality of education thereby violating fundamental right to education under Article 21-A of the Constitution of India, the Allahabad High Court declared Government Orders dated 04.09.2000 and 15.02.2013 ultra vires Articles 14, 16 and 21-A of the Constitution of India insofar as they relate to appointment on the posts of teachers on compassionate grounds.The Court further held these Government Orders, which provide for eligibility for compassionate appointment on post of Teachers, to be violative of Section 3 of the Right to Education Act, 2009 and Rule 5 of the Dying in Harness Rules, 1999. Justice Ajay Bhanot held“Merit of candidates tested by constitutional processes of recruitment is not a factor for consideration while making appointments on compassionate grounds under the said Government Orders dated 04.09.2000 and 15.02.2013. The said process under the Government Orders dated 04.09.2000 and 15.02.2013 invariably compromises the quality of teachers, inevitably degrades the standard of teaching, and finally negates the fundamental rights of children to quality education.”The Court held that insistence for appointment as a teacher on compassionate grounds reflects more a "quest for permanent social status" and less a claim for relief from immediate financial destitution.Petitioners, through different writ petitions, approached the High Court seeking a writ of a mandamus commanding the respondent authority to grant them compassionate appointment on the post of Assistant Teacher in terms of Government Orders dated 04.09.2000 and 15.02.2013. While framing the issues, the Court discussed the Constitutional validity of the Government Orders and their consistency with Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness (Fifth Amendment) Rules, 1999.Rule 5 of the Dying in Harness Rules provides that when a Government employee, Centre or State or in corporation owned by such Government, dies in harness and the spouse of such employee in not in Government employment, then a member of the family who is not in Government employment can make an application for compassionate appointment. Such person “be given a suitable employment in Government services,” except in cases provided.Justice Bhanot observed that “Rule 5 of the Dying in Harness Rules, 1999 mandates that an enquiry by the competent authority into the nature of “suitable employment on a post” should precede the grant of compassionate appointment. The said process requires consideration of the various elements which are comprised in “suitable employment on a post”.”The Court observed that for compassionate appointment to the post of Assistant Teacher, the degree of expertise and knowledge will be important factors to consider along with the nature of duties to be discharged and their effects on fundamental right of citizens. It also held that since the Constitutional criteria for open recruitment and appointment by competitive merit for the said post is being waived for making compassionate appointments, it has to be seen that public purpose and institutional needs are being met while making such appointments. The Court noted that the Government Orders dated 04.09.2000 and 15.02.2013 provide for compassionate appointment on post of Teacher. While the GO dated 04.09.2000 provided that training can be done after being appointment on compassionate grounds, the GO dated 15.02.2013 removed this relaxation and provided educational criteria must be strictly adhered to. The Court observed that both the GOs together provided the minimum qualification for compassionate appointment as a teacher and a candidate would be considered for compassionate appointment only if she/ he possessed such minimum qualification as provided. “The procedure for compassionate appointments invariably shields the said appointments from public sight and even knowledge. There is little possibility of the children understanding the consequences of dilution of merit in appointment of teachers on their right to education much less challenge the same. The Courts cannot idly watch the violation of fundamental rights of the children to education. Constitutional law contemplates a proactive role of Courts in these circumstances. Cases in point can be profitably referenced.”Holding that quality education is a fundamental right under Article 21A of the Constitution of India as well as the Right to Education Act, 2009, the Court held that quality education can only be achieved if the teachers are qualified and meritorious. It held that the best candidates for teachers can only be brought in through the transparent competitive process as contemplated in the Constitution and that the process of appointment on compassionate grounds precludes public participation, thereby denying the “best talent” from the open market from being appointed. The Court held that eligibility for appointment does not...

Compassionate Appointment On Teacher Post Compromises Quality Of Education, Violating Article 21A: Allahabad High Court Strikes Down GOs

Upasna Agrawal

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