Neutral Citation No. - 2025:AHC:113869-DB Court No. - 21 Case :- SPECIAL APPEAL No. - 605 of 2025 Appellant :- Uma Shanker Respondent :- State Of U.P. And 10 Others Counsel for Appellant :- Ganesh Kumar Counsel for Respondent :- Ashok Kumar Singh,Awadhesh Kumar Sharma,C.S.C.,Shesh Nath Bhatt Hon'ble Manoj Kumar Gupta,J. Hon'ble Ram Manohar Narayan Mishra,J. 1. The instant special appeal is directed against the order of learned Single Judge dated 21.5.2025 passed in Writ-A No. 7100 of 2025 by which the writ petition of the appellant seeking writ of mandamus commanding respondent no. 2 (District Basic Education Officer, Siddharth Nagar) to grant appointment to him under Dying in Harness Rules and to pass appropriate order on his representation dated 26.4.2025, has been dismissed. The order of the learned Single Judge is as follows: "1. Heard Sri Ganesh Kumar, learned counsel for the petitioner and Sri R.A. Singh, holding brief of Sri Ashok Kumar Singh, learned counsel for the respondents. 2. The prayer made in this writ petition to consider the petitioner on the post of Assistant Teacher under compassionate appointment cannot be considered since recently a co-ordinate Bench of this Court in Writ-A No.15450 of 2024, Shailendra Kumar Vs. State of U.P. & Ors, Neutral Citation:2025:AHC:57129 has held that compassionate appointment cannot be given on the post of Assistant Teacher, though it can be given on the post of Class III or Class IV. 3. Petitioner has already been offered compassionate appointment under Class III post . 4. So far as grievance of death benefit due to death of petitioner's father is concerned, on basis of a representation it will be considered in accordance with law by the concerned respondents. 5. In the aforesaid circumstances, this writ petition is disposed of." 2. The submission of learned counsel for the appellant is that the petitioner in his application submitted for compassionate appointment as well as in the representation dated 26.4.2025 only prayed for grant of appointment on compassionate basis and not on any particular level of post. The learned Single Judge has proceeded on a wrong factual premise that the petitioner sought compassionate appointment on the post of Assistant Teacher resulting in wrongful dismissal of the writ petition. It is further submitted that the recital in the impugned order of the learned Single Judge that the petitioner has already been offered compassionate appointment on a Class-III post is also not correct inasmuch as no such offer has been made till date. He further states that the petitioner is ready to take appointment even on a Class-IV post. 3. Learned counsel appearing for B.S.A. admits that the petitioner has not been offered any compassionate appointment on Class-III post so far and thus, we observe that one of the grounds on which the learned Single Judge has dismissed the writ petition, is factually incorrect. 4. We have gone through the prayer made in the writ petition as well as in the representation thereby the petitioner prayed for grant of compassionate appointment and we do not find any prayer therein by the petitioner for being appointed as Assistant Teacher on compassionate basis. Thus, even the other factual basis on which the learned Single Judge has proceeded, is not borne out from the record. 5. Learned counsel appearing for the private respondents however submits that the petitioner is not entitled to claim compassionate appointment as Awadesh Kumar, the deceased employee, had remarried Vijay Laxmi, respondent no. 4 herein, and therefore, the appointment on compassionate basis is to be given to her or her other sons and daughters. He disputes that the petitioner was born out of any legal wedlock between the petitioner's mother and the deceased employee. 6. As the said controversy has yet not been examined by the writ court, therefore, we refrain from entering into the said issue. We are further of the opinion that in the first instance, it should be examined by the B.S.A. Thus, while setting aside the order of the learned Single Judge dated 21.5.2025 to be above extent, we remit the matter to the B.S.A. for according consideration to the rival claims after affording opportunity of hearing to them within a period of twelve weeks from the date of communication of the instant order. 8. In consequence, appeal stands allowed to the extent indicated above. . (R.M.N. Mishra, J.) (Manoj Kumar Gupta, J.) Order Date :- 15.7.2025 Dhirendra/ Digitally signed by :- DHIRENDRA KUMAR High Court of Judicature at Allahabad