Salary Can't Be Denied On Objections To Compassionate Appointment So Long As Approval Order Subsists: Allahabad High Court

The Allahabad High Court has held that where an order approving a compassionate appointment has never been withdrawn, recalled or annulled by a competent authority, the salary flowing from that appointment cannot be denied. It held that an administrative order which continues to operate in law cannot be defeated indirectly by refusing the benefits which follow from it.Justice Manju Rani Chauhan held,“An administrative order which continues to operate in the eyes of law cannot be rendered otiose by the simple expedient of refusing its consequential benefits. So long as the approval subsists, the respondents are estopped from questioning its efficacy indirectly while simultaneously declining the salary flowing therefrom.”Petitioner's husband was an Assistant Teacher at Kisan Vaidik Junior High School, Latifpur, District Gautam Buddh Nagar, and died in harness in 2001. She was appointed on compassionate grounds to a Class-IV post in the institution and joined on 1st August 2006. The appointment was approved by the Basic Shiksha Adhikari, Gautam Buddha Nagar, by letter dated 6th September 2006.The institution was brought on the grant-in-aid list by Government Order dated 2nd December 2006. Thereafter, the Assistant Director of Education (Basic) objected to the appointment on the ground that it had been made without following the procedure prescribed by law. An opinion was sought from the Director of Education, but none was ever communicated. On the strength of the objection alone, the petitioner's salary was withheld.Her earlier writ petition was dismissed in 2011. In special appeal, a Division Bench observed that there was no material to show that no vacant Class-IV post was available when she was appointed, or the approval granted by the Basic Shiksha Adhikari had at any stage been revoked. It directed the competent authority to examine the entire record and pass appropriate orders.By the impugned orders, the claim was rejected again on grounds that the appointment did not conform to the statutory provisions and that the Government Order dated 31st January 1997 ceased to apply once the institution came on the grant-in-aid list. It stated that no sanctioned Class-IV post existed thereafter.The Court held that the approval granted on 6th September 2006 had never been withdrawn, recalled or annulled, and that the premise on which the claim was rejected was therefore legally unsustainable. It held that the findings of the Division Bench were the binding framework within which the authority had to reconsider the matter.“Instead, the authority has reopened issues that stood concluded and has virtually sat in appeal over the judgment of the Division Bench. Such an exercise is wholly impermissible and strikes at the very foundation of the rule of law.”The Court further observed that respondent no. 2 had relied on reports and communications sent by respondent nos. 3 and 4 after the hearing, without supplying copies to the petitioner or allowing her to rebut them.“The impugned decision has thus been founded upon materials collected behind the back of the petitioner. Such a course of action is in the teeth of the cardinal principles of natural justice. Fairness in administrative action is not an empty formality but an indispensable facet of Article 14 of the Constitution.”Relying on the Constitution Bench decision in Mohinder Singh Gill v. Chief Election Commissioner, the Court held that an administrative order must stand or fall on the reasons recorded in it and cannot be supplemented later through affidavits. On the reasoning that the petitioner must bear the consequences of lapses by the Committee of Management or the education authorities, the Court held that a citizen cannot be penalised for the negligence or inaction of the State, and that once she had filed all requisite documents and approval had been granted, a later administrative lapse could not extinguish her accrued rights.It referred to Asha Kaul (MRS) & Anr. v. State of Jammu & Kashmir & Ors., where the Supreme Court observed that an otherwise eligible candidate cannot be deprived of statutory benefits where the delay or default lies with the authorities.The Court also held that the respondents had failed to appreciate the object of compassionate appointment.“Such appointments are conceived not as a source of largesse but as a measure of immediate social welfare intended to rescue the bereaved family of a deceased employee from financial destitution. The beneficial object underlying the Government Orders governing compassionate appointment deserves a purposive and liberal construction rather than a hyper-technical interpretation which defeats the very object sought to be achieved.”Noting that the impugned orders disclosed no application of mind to the Division Bench's observations and proceeded on assumptions unsupported by the record, the Court held the decision-making process to be vitiated by arbitrariness, procedural impropriety and manifest...

Salary Can't Be Denied On Objections To Compassionate Appointment So Long As Approval Order Subsists: Allahabad High Court

Upasna Agrawal

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Salary Can't Be Denied On Objections To Compassionate Appointment So Long As Approval Order Subsists: Allahabad High Court

Upasna Agrawal

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