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PETITIONER: DIRECTOR OF EDUCATION (SECONDARY) & ANR.

       Vs.

RESPONDENT: PUSHPENDRA KUMAR & OTHERS

DATE OF JUDGMENT:       13/05/1998

BENCH: S.C. AGRAWAL, S. SAGHIR AHMAD, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                           W I T H [C.A No.  2710 of  1998 (arising out of SLP (C) No. 339/94), C.A.No. 2711  of 1998  (arising out of SLP (C) No, 2328/94), C.A.No. 2712  of 1998  (arising out of SLP (C) No. 2734/94), C.A.No. 2713  of 1998  (arising out of SLP (C) No. 2735/94), C.A.No. 2714  of 1998 (arising out of SLP (C) No. 16350/94), C.A.No. 2715  of 1998  (arising out of SLP (C) No. 1186/94), C.A.No. 2716  of 1998  (arising out  of SLP (C) No. 348/95), C.A.No. 2717  of 1998  (arising out  of SLP (C) No. 901/95), C.A.No. 2718  of 1998 (arising out of SLP (C) No. 206.9/93), C.A.No. 2719  of 1998 (arising out of SLP) (C) No. 1062/94), C.A. No.  2720 of 1998 (arising out of SLP (C) No. 4100/94), C.A. No.  2721 of 1998 (arising out of SLP (C) No. 4613/94(, and C.A.No.  2722 of  1998  (arising  out  of  SLP  (C)  No. 4614/94)]                        J U DG M E N T S.C. AGRAWAL,J.      Special Leave granted.      These appeals  relate to  appointment on  compassionate grounds  of   dependents  of   teaching/non-teaching   staff employed in  non Government  recognised  aided  schools  and intermediate colleges in the State of Uttar Pradesh who have died in harness.      In relation  to Government  employees the Government of Uttar Pradesh  has made  the Uttar  Pradesh  Recruitment  of Dependents of  Government Servants  Dying in Harness. Rules, 1974 (hereinafter  of a dependent of the deceased Government Servant dying in harness, who is not already employed by the Central  Government,   by  State   Government  or   by   any Corporation which  comes under the Central Government or the State Government.  For that  purpose the  normal recruitment rules  are   relaxed.  The  said  Rules  are,  however,  not applicable to  the staff  employed in  Government recognised aided institutions  since they  are not Government Servants. With regard  to appointment  of dependents  of  teaching/non teaching staff  of such  institutions provision was made for the first  time by Circular dated September 23, 1981 whereby it  was   directed  that  where  any  Teaching/non  Teaching employee of  the non-government aided Secondary Schools dies in    harness     untimely    and    who    was    appointed

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permanent/regularly in  his post,  one member  of his family having qualifications prescribed for non teaching post, will be given  employment as early as possible, if he so desires. It was  further directed  that the  procedure prescribed for appointment for these posts shall not be strictly adhered to but it  should be  necessarily considered that the concerned person is qualified to be appointed on the non teaching post under the  relevant rules/orders  for this  purpose. In  the said circular  it was  also laid  down that  a person  to be appointed must  have completed  the age  of 18  years at the time of  his appointment  and as  far as possible the person shall  be   considered  for  the  appointment  in  the  same institution in  which the  employee at the time of his death was working and if difficulty is faced in giving appointment due to  non-availability of  vacancies in  the  non-teaching post then  the appointment  can be made in any other similar Secondary School,  where such  vacancy is  available and the criteria will  be that  any one  member of the family of the employee  dying   in  harness   and   possessing   requisite qualifications  is   given  employment  without  any  delay. Subsequently by  notification dated July 30, 1992, the State Government amended  the Regulations  made in exercise of the powers conferred on it under sub-section (4) of Section 9 of the U.P.  Intermediate Education  Act,  1921,  and  inserted Regulations 101  to 107  after Regulation 100 in Chapter III of the  Regulations. Regulations  101 to  107 were  in these terms :-      "101.    The  appointing  authority      shall not  fill any  vacancy in the      non-teaching staff  of a recognised      aided institution  except with  the      prior approval of the Inspector.      102 :   A  vacancy to  be caused on      account   of   retirement   of   an      employee holding  non-teaching post      in a  recognised aided  institution      shall  be  intimated  three  months      before the  date of  his retirement      and any  vacancy occurring  due  to      death, resignation or for any other      reasons shall  be intimated  within      seven days  from the  date  of  its      occurrence to  the Inspector by the      appointing authority.      103 :    In  case  an  employee  of      teaching or non-teaching staff of a      recognised  aided  institution  who      has   been    duly   appointed   in      accordance  with   the   prescribed      procedure,  dies   in  harness  one      member of  his family not below the      age of  18  years  shall  be  given      appointment to  a non-teaching post      notwithstanding  anything  contrary      in  the  prescribed  procedure  for      recruitment    if    such    member      possesses   requisite   educational      qualifications prescribed  for  the      post and  is otherwise suitable for      appointment.      Explanation.-   For the purposes of      this regulation  ‘member of family’      shall  mean   widow/widower,   son,      unmarried or  widowed  daughter  of      the deceased.

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    NOTE  :     This   regulation   and      regulation 104  to 107  shall apply      in  respect   of   those   deceased      employees also who dies on or after      January 1, 1981.      104 :   The Management or Principal      or the  Head Master,  as t  he case      may be,  of  the  recognised  aided      institution shall  submit a  report      giving the  name, post  held, scale      of pay,  date of  appointment, date      of  death,  name  of  the  employer      institution of the deceased and the      name,  educational   qualifications      and age  etc. of the family members      thereof  to  the  inspector  within      seven  days   from  the   date   of      occurrence of  death. The inspector      shall register  the particulars  of      the deceased  in a  register to  be      maintained by him.      105 :   A  member of  the family of      the deceased  employee referred  to      in regulation  104 shall  submit an      application   to    the   concerned      Inspector for appointment to a post      in  the   non-teaching  cadre.  The      application shall  be considered by      a Committee and after the Committee      has  recommended  his  appointment,      the  Inspector   shall   send   the      application to  the  Management  or      the Principal  or the  Head Master,      as  the   case  may   be,  of   the      institution where  the applicant is      to be  employed in  accordance with      the   provisions    contained    in      regulation    106    for    issuing      appointment  order.  The  Committee      shall comprise :      1. Inspector   :  Chairman      2.   Accounts Officer in the office          of         :  Member          District Inspector of Schools      3.   District Basic Siksha Adhikari                     :  Member      106  :    The  appointment  of  the      family  member   of  the   deceased      employee shall  be made,  as far as      possible, in  the same  institution      where  the  deceased  employee  was      serving at  the time  of his death.      If there  is  no  vacancy  in  non-      teaching cadre in such institution,      the appointment  shall be  made  in      another      recognised       aided      institution of  the district  where      there is such vacancy :           Provided that  if such vacancy      for the  time being  does not exist      in any recognised aided institution      of  the   district  concerned,  the      appointment shall be made against a      supernumerary    post     in    the      institution where  the deceased was

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    working at  the time  of his death.      Such supernumerary  post  shall  be      deemed to  have  been  created  for      this purpose  and be continued till      a vacancy becomes available in that      institution   or   in   any   other      recognised aided institution in the      district  and   in  such  case  the      service rendered  by the  incumbent      of the  supernumerary post shall be      counted for the fixation of pay and      retirement benefits.      107 :  The appointment letter shall      be issued  under intimation  to the      Inspector by  the recognised  aided      institution    to     which     the      application for issuing appointment      letter is  sent  by  the  Inspector      within a  period of  one month from      the  date   of   receipt   of   the      application."      The respondents  in these  appeals  are  dependents  of persons who  were employed as teaching/non-teaching staff in non-government   recognised    aided   schools/intermediates colleges in  Uttar  Pradesh.  The  said  employees  died  in harness. Applications  were submitted  by the respondents in these appeals, who are the dependents of deceased employees, before  the   District  Inspector   of  Schools  for  giving appointment on  compassionate  grounds.  In  most  of  these appeals the  District Inspector  of School  passed order for their being  appointed on  a Class IV post and on that basis orders of  appointment were  issued. After their appointment on a  class IV  post,  they  filed  writ  petitions  in  the Allahabad    High    Court    seeking    appropriate    writ direction/order for  being appointed  on a Class III post on the ground  that they  possess the  requisite qualifications for appointment  on class III post of Clerk. In Civil Appeal arising out  of S.L.P.  (C) No.  1186 of  1994 the  District Inspector of  Schools had  offered a  class IV  post to  the applicant and  dissatisfied with  the said  offer he filed a writ petition  in the  Allahabad High  Court for a direction for being  appointed on  a class III post of Clerk. In Civil Appeal arising  out of  the S.L.P.(C)  No. 2734  of 1993  no decision was  taken by  the District Inspector of Schools on the application  of the applicant and he filed writ petition in the  Allahabad High  Court wherein  he sought a direction from the   High  Court directing  the District  Inspector of Schools to  appoint him  on the  post of Clerk. All the writ petitions have  been  allowed  by  the  High  Court  by  the impugned judgments.  In case  where appointment had ben made on a  class IV  post, the High Court has quashed such orders and has  directed that  the appointment  of the applicant be made on a class III post provided he possesses the necessary qualifications for such pst and that such appointment may be made in  any institutions in the district and if there is no such vacancy,  then a  supernumerary post should be created. In the  other two appeals where the appointment had not been made, the  High Court  while allowing the writ petitions has directed that  the appointment  be made  on a class III post provided the  applicant possesses the qualifications for the post and  that if no post is available in any institution in the district a supernumerary post should be created for that purpose.      Beling aggrieved  by the  said judgments  of  the  High Court, the State has filed these appeals.

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    The learned  counsel for the appellants has pointed out that the  aforesaid  directions  given  by  the  High  Court regarding the  appointment of  dependents  of  teaching/non- teaching staff  in non-government  recognised aided  schools and colleges  on  a  class  III  post  and  for  creating  a supernumerary post  for  that  purpose  has  given  rise  to immense practical  problems. It  has been  submitted that in the State of U.P. about 4500 non-government recognised aided institutions  are  running  and  there  are  about  1.25.000 teaching and non-teaching employees, out of which the number of clerks  in an  institution is between 1 to 3. It has been submitted that  based on  the mortality  rate of  1% of  the number of persons dying a harness in each year would come to 1250 approximately.  It has  also been  pointed out that the number of  vacancies occurring  on the  post of clerk due to retirement and death (at the rate of 2% and 1% respectively) comes to  330 in a year. The learned counsel has invited out attention to  the conditions of the services as contained in clauses 2(2)  of Chapter  3 of  the Regulations  made  under Section 16G  of the  U.P. Intermediate  Act, which  provides that fifty  by promotion amongst the working Clerk and Class IV employees in the Institution. It is submitted that out of 330 vacancies  on the  post of  Clerk occurring in a year on account of  retirement and  death, 165  will have  to be set apart for  promotion of working Clerk and Class IV employees and only 165 posts would be available for making appointment by direct recruitment. Appointment of dependents of deceased teaching-non-teaching staff  on compassionate grounds can be made only  on these  posts which  can be  filled  by  direct recruitment and as a result all the vacancies occurring in a year  would   be  taken   by  such  dependents  of  deceased teaching/non-teaching  staff   dying   in   harness.   Since supernumerary posts would have to be created for making such appointment, no  post would  ever be  available  for  direct recruitment  of   other  persons   who  are   eligible   for appointment. It  has also  been pointed  out that during the pendency of  these matters  in this  Court, Regulations 101, 103, 104,  106 and 107 have been amended and Regulation 105A has been  inserted in  the Regulations by notification dated February 2, 1995. In Regulation 106, as amended, it has been prescribed that  if vacancy  in non-teaching  cadre for  the time  being   does  not   exist  in   any  recognised  aided institution of  the district concerned, then the appointment shall be  made against  a supernumerary non-teaching post of class IV  category and  such supernumerary  post shall  b  e deemed to have been created for his purpose and be continued till a  vacancy becomes  available in that institution or in any other  recognised aided  institution of the district and in such  case, the  service rendered by the incumbent of the supernumerary post  shall be counted for fixation of pay and retirement benefits.  As a  result of  the amendment made by notification dated  February 2, 1995, in the event of a non- teaching post  being not  available, the  appointment of the dependent of  a deceased member of the teaching/non-teaching staff dying  in harness, can be made only on a Class IV post by creating a supernumerary post.      The  question  for  consideration  is  whether  in  the absence of  the amendment  that was  made in the Regulations vide notification  dated February  2, 1995, it was incumbent for the authorities to appoint the dependents of a member of the  teaching/non-teaching   staff   in   a   non-government recognised aided institution dying in harness on a class III post even  though no post was available for such appointment in the  institution  in  which  the  deceased  employee  was employed or  any other  institution in  the district and for

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that purpose  a supernumerary  post in  Class III  post  was required to  be created.  In the impugned judgments the High Court has  taken the view that under the regulations as they stood prior  to amendment  by notification dated February 2, 1995 a  supernumerary post  in Class  III was required to be created for  appointing the  dependent of  a member  of  the teaching/non-teaching  staff   in  a   non-government  aided institution dying  in harness.  The said  view of  the  High Court has been assailed by the appellants in these appeals.      The  object   underlying  a   provision  for  grant  of compassionate employment  is to  enable the  family  of  the deceased employee  to tide  over the sudden crisis resulting due to  death of  the bread earner which has left the family in penury  and without  any means of livelihood. Out of pure humanitarian consideration  and having  regard to  the  fact that unless  some source  of  livelihood  is  provided,  the family would not be able to make both ends meet, a provision is made  for  giving  gainful  appointment  to  one  of  the dependents of  the deceased  who may  be eligible  for  such appointment. Such  a provision  makes a  departure from  the general provisions  providing for appointment on the post by following a  particular procedure.  Since such  a  provision enables appointment  being made  without following  the said procedure, it  is in  the nature  of  an  exception  to  the general provisions.  An exception  cannot subsume  the  main provision to  which it  is an  exception and thereby nullify the main  provision by  taking  away  completely  the  right conferred by  the main provision. Care has, therefore, to be taken  that   a  provision   for  grant   of   compassionate employment, which  is in  the nature  of an exception to the general provisions, does not unduly interfere with the right of other  persons who  are eligible  for appointment of seek employment against  the post which would have been available to them,  but for  the provision  enabling appointment being made on compassionate grounds of the dependent of a deceased employee. In  Umesh Kumar  Nagpal v.  State of Haryana, 1994 (4) SCC  138, this  Court  has  taken  note  of  the  object underlying  the   rules   providing   for   appointment   on compassionate grounds  and has  held that  the Government or the public  authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied,  that but for the provision of employment, the family will  not be able to meet the crisis that a job is to be offered  to the  eligible member  of the  family. In that case  the   Court  was   considering  the  question  whether appointment on  compassionate grounds  could be made against posts higher  than posts  in classes III and IV. It was held that such  appointment could only be made against the lowest posts in  non-manual and  manual categories. It was observed :-      "The  provision  of  employment  in      such  lowest  posts  by  making  an      exception   to    the    rule    is      justifiable and  valid since  it is      not discriminatory.  The favourable      treatment given  to such  dependent      of the  deceased employee  in  such      posts has a rational nexus with the      object sought  to be achieved, viz,      relief  against   destitution.   No      other   posts   are   expected   or      required to b e given by the public      authorities  for  the  purpose.  It      must   be    remembered   in   this      connection  that   as  against  the

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    destitute family  of  the  deceased      there   are   millions   of   other      families which  are equally, if not      more destitute.  The exception  the      rule made  in favour  of the family      of  the  deceased  employee  is  in      consideration   of   the   services      rendered by  him and the legitimate      expectations,  and  the  change  in      status and  affairs, of  the family      engendered   by    the    erstwhile      employment   which   are   suddenly      upturned." (p. 140)      In the said case, this Court has considered the earlier Judgment in  Smt. Sushma  Gosain &  Ors. v. Union of India & Ors., 1989  (4) SCC  468. It  has been  observed  that  said judgment  ‘has   been  misinterpreted   to  the   point   of distortion’ and  that  it  does  not  justify  compassionate employment as a matter of course.      The construction  placed  by  the  High  Court  on  the Regulations   governing   appointment   of   dependents   of teaching/non-teaching  staff  in  non-government  recognised aided institutions  dying in harness would result in all the vacancies in  class III  posts in  non-government recognised aided institutions which are required to be filled by direct recruitment  being  made  available  to  the  dependents  of persons employed  on the teaching/non-teaching staff of such institutions who  die in  harness and  the  right  of  other persons who  are eligible for appointment to seek employment on those  posts by  direct recruitment  would be  completely excluded. On  such a  construction the said provision in the Regulations would  be open  to challenge  on the  ground  of being violative  of the  right to  equality in the matter of employment inasmuch  as other  persons who  are eligible for appointment  and  who  may  be  more  meritorious  than  the dependents of  deceased employees would be deprived of their right of  being considered  for such  appointment under  the rules. A construction which leads to such a result has to be avoided. Having  regard to  the fact  that there  are  large number of posts falling in class IV and appointment on these posts is  made by  direct recruitment, the object underlying the provision  for giving  employment to  a dependent  of  a person employed  on teaching/non-teaching  staff who dies in harness would  be achieved  if the  said  provision  in  the Regulations is  construed to  mean that  in  the  matter  of appointment of a dependent of teaching/non-teaching staff in a  non-Government  recognised  aided  institution  dying  in harness if  a post  in class  III is  not available  in  the institution in  which the  deceased employee was employed or in any  other institution  in the  district,  the  dependent would be  appointed on a class IV post in the institution in which the  deceased  employee  was  employed  and  for  that purpose a  supernumerary post in class IV may be created. It the  Regulations   are  thus   construed  the   respondents- applicants could  only be  appointed on  a class IV post and they could  not seek  a direction  for being  appointed on a class III  post and  for creation  of supernumerary  post in class III  for that  purpose. We  are, therefore,  unable to uphold the direction given by the High Court in the impugned judgments whereby  the respondents  have been directed to be appointed on  a class III post if they possess the requisite qualifications for such a post and in case no Class III post is available  then a supernumerary class III post be created for the purpose of such appointment.      In the  result, the  appeals are  allowed, the impugned

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judgments of the High Court are set aside and writ petitions of the  respondents-applicants  are  disposed  of  with  the direction that  if no  class III  post is  available in  the institution in  which the  deceased employee was employed or in  any   other  institution   in  the  district,  the  said respondent would be appointed against a Class IV post in the institution in  which the deceased employee was employed and a supernumerary  post  in  class  IV  be  created  for  that purpose. The  order passed  by the  District  Inspectors  of Schools for  appointment of  the  respondents-applicants  in appeals, other than Appeal arising out of S.L.P.(c) No. 2734 of 1992,  are restored and the respondents-applicants in the said Appeal  should be treated as having been appointed on a class IV  post as  per the  orders for such appointment that were  issued  by  the  District  Inspector  of  Schools.  In Appeals, arising  out of  S.L.P. (C)  No. 2734  of 1993  the concerned District  Inspector of  Schools shall consider the application of  the respondent-applicant for appointment and if no  class III  post was  available on  the  date  of  the passing of the impugned judgment of the High Court, the said respondent-applicant should  be appointed on a class IV post in the  institution  in  which  the  deceased  employee  was employed with  effect from the date of the impugned judgment of the High Court. No orderIN THE MATTER OF :