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PETITIONER: HIRA MAN

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       08/08/1997

BENCH: S. C. AGRAWAL, G. T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      Leave granted      Heard learned counsel for both the sides      The appellant  was employed  as  a  Daftari  (Class  IV employee)  in   Nehru  Intermediate   College,  which  is  a recognised and  Government aided  college.   He continued to work on  theat post  till he  was promoted  as  a  clerk  on 11.5.1990.  In the said college, one Surya Narain Srivastava was working  as an  Assistant Teacher.  He died on 11.5.1987 while in  service.  On 29.2.1989 his widow made a request to the  Principal  of  the  college  for  appointing  her  son, respondent No.  4, to  a non-teaching  post on compassionate grounds.   In  December,  1989  and  February,  1990  Distt. Inspector of  Schools, respondent  No.2, also  wrote to  the Principal of  the college  to give  suitable  employment  to respondent No.4.  On retirement of a Head Clerk on 30.6.1989 one clerk was promoted to that post and, therefore, one post of clerk  became vacant.   In  April,  1990  the  management decided to promote and appoint the appellant on that post as it belonged  to the  promotional quota.   It also decided to promote one  Ramdin, who was working as a peon, as a Daftari in the  place of  the appellant and appoint respondent No. 4 as a  peon.    It  then  sought  approval  of  the  District Inspector  of   Schools  for  the  proposed  promotions  and appointment.  It was granted on 11.5.1990.  Pursuant thereto the appellant  was promoted  as a  clerk  on  11.5.1990  and respondent No.4  was  appointed  as  a  peon  on  12.5.1990. Respondent No.  4 represented  to the  management that as he was a  graduate and  possessed necessary  qualifications for appointment as  a clerk he ought to have been appointed as a clerk and  not as  a peon  especially when  a vacant post of clerk was  available.   The management  did not  accept  his representation.   Therefore  he  filed  Civil  Misc.    Writ Petition No.  444  of  1991  in  the  Allahabad  High  Court challenging the appointment of the appellant as a clerk.      The petition  was allowed  by a learned single Judge of that Court  as he  was of  the opinion  that, in view of the Uttar  Pradesh   Recruitment  of  Dependents  of  Government Servants Dying  in Harness Rules, 1974, respondent No. 4 had

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become entitled  to an  immediate employment after 29.2.1989 and it  was, therefore,  not proper  for the  management  to delay his  appointment after  a post  of  clerk  had  fallen vacant in  June, 1989  and to  promote the appellant on that post on  11.5.1990.   He therefore, quashed the promotion of the appellant  as a  clerk and that of respondent No. 4 as a peon and  directed the  management and  the  authorities  to appoint respondent  No. 4  on the  said vacant post of clerk w.e.f. 12.5.1990.      As a  result of this decision the appellant was demoted as a  peon.   The appellant  challenged the  decision of the learned single  Judge by  filing Special  Appeal No.  878 of 1993 in  the High  Court.   The Division  Bench of  the High Court held  that the  Dying in  Harness Rules  over-ride all other recruitment  rules in  respect of  posts  not  falling within the  purview of  the  uttar  Pradesh  Public  Service Commission.  If further held that in view of the educational qualifications of  respondent No.4 and the availability of a clear vacant  post of  a clerk respondent No.4 ought to have been appointed  as a  clerk and not as a peon.  It also held that the  appellant, who  was a class IV employee, ought not to have  been promoted  as a  clerk, ignoring  the claim  of respondent No.4.   It, therefore, upheld the decision of the learned single judge and dismissed the appeal.      The contention of the learned counsel for the appellant was that  the post  of clerk,  which had fallen vacant after June, 1989  was of the promotional quota and, therefore, the High Court committed a grave error in quashing the promotion of the  appellant to  that post  and directing  the  college management and  the authorities  to appoint respondent No. 4 on that  post.   On the other hand, what the learned counsel for the  respondent No.4  contended was  that the  Dying  in Harness Rule  over ride  all other  provisions regarding the recruitment on posts which do not fall within the purview of the u.P.  Public Service  Commission and, therefore, even if the post  of clerk  which had  fallen vacant belonged to the promotional quota,  it was  the legal  duty of  the  college management and the authorities to appoint respondent No.4 on that post.      The  Uttar   Pradesh  Recruitment   of  Dependents   of Government Servants  Dying in  Harness Rules, 1974 have been framed in exercise of the powers conferred by Article 309 of the Constitution  of India.   Rule 3 of the said Rules makes these Rules  applicable to  the recruitment of dependents of the deceased  Government servants  to  public  services  and posts in  connection with  the affairs  of  State  of  Uttar Pradesh, except  services and  posts which  are  within  the purview of  the Uttar  Pradesh  Public  Service  Commission. Rule 4,  on which  heavy reliance  has been  placed  by  the learned counsel  for respondent  No.4, gives  an  overriding effect to  those rules by providing that they shall have the effect notwithstanding anything to the contrary contained in any  rules,   regulations  or   orders  in   force  at   the commencement of  those rules.   It was contended that so far as recruitment  of such  dependents to  public services  and posts is concerned Dying in Harness Rules override all other recruitment rules and that would necessarily imply that even if quota for promotion and direct recruitment is fixed under those Rules, they will have to give way and the dependent of the deceased Government servant will have to be accommodated on the first available vacancy irrespective of whether it is to be filled up by promotion or by direct recruitment.      On the reading of the Rules as a whole, we do not think that rule  4 of  the said Rules has that effect.  Rules 4, 5 and 8 read as under ;-

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         "4, Overriding effect of these      rules- These  rules and  any orders      issued   thereunder   shall,   have      effect notwithstanding  anything to      the  contrary   contained  in   any      rules,  regulations  or  orders  in      force at  the commencement of these      rules.      5. Recruitment  of a  member of the      family of  the deceased - In case a      Government servant  dies in harness      after  the  commencement  of  these      rules, one member of his family who      is not  already employed  under the      Central  Government   or  a   State      Government or  a Corporation  owned      or  controlled   by   the   Central      Government or  a  State  Government      shall, on making an application for      the purpose,  be given  a  suitable      employment  in  Government  service      which is  not within the purview of      the State Public Service Commission      in   relaxation   of   the   normal      recruitment  rules,  provided  such      member  fulfills   the  educational      qualifications prescribed  for  the      post   and    is   also   otherwise      qualified for  Government  service.      Such  employment  should  be  given      without  delay   and,  as   far  as      possible, in the same department in      which   the   deceased   Government      servant was  employed prior  to his      death.      a. Relaxation  from age  and  other      requirements -      (1)    The     candidate    seeking      appointment under  these rules must      not be  less than  18 years  at the      time of appointment.      (2) The procedural requirements for      selection, such  as written test or      interview by  a selection committee      or any  other authority,  shall  be      dispensed with,  but  it  shall  be      open to the appointing authority to      interview the candidate in order to      satisfy itself  that the  candidate      will  be   able  to   maintain  the      minimum  standards   of  work   and      efficiency expected on the post.      (3)  An   appointment  under  these      rules  shall  be  made  against  an      existing vacancy only."      Rule 5 imposes an obligation on the State Government to give suitable  employment to  the dependent  of the deceased Government servant  in the  State Government service or on a post which  is not  within the  purview of  the State Public Service Commission  provided that he is not already employed under the  Central Government  or a  State Government  or  a Corporation owned  by the  Central  Government  or  a  State Government.   It further provides that such employment is to be given  in relaxation  of the  normal  recruitment  rules, provided such member fulfills the educational qualifications

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prescribed for  the post and is also otherwise qualified for Government service.  Such employment has to be given without delay.   Obviously this  provision has been made with a view to achieve  the  object  of  the  rules,  viz.,  to  provide immediate succour  to  family  of  the  deceased  Government servant when it is put in a difficult financial situation as a result  of his  death.   If the  dependent of the deceased Government servant is made to wait till the vacancy is to be filled up  by following  the prescribed  procedure under the normal recruitment  rules and  to compete  with others,  the object of  the rules  would get frustrated.  Therefore, such appointment has  to be  made in  relaxation  of  the  normal procedure prescribed by the relevant recruitment rules.  For that  reason  Rule  5  contemplates  giving  of  a  suitable employment to  such dependent  in relaxation  of the  normal procedure prescribed  by the  relevant recruitment rules and that becomes clear when we read this rule along with Rule 8. The rule  making authority after providing generally in Rule 4  that  Dying  in  Harness  Rules  and  any  orders  issued thereunder shall have effect notwithstanding anything to the contrary contained  in any  rules, regulations  or orders in force at  the commencement  of the  rules has  thereafter in rules 5  and 8  specifically provided  what is to be relaxed and to what extent it is to be relaxed.  If the intention of the rule  making authority  was to give the Dying in Harness Rules an  overriding effect over all other recruitment rules or regulations  in all  respects, then  it would  have  been unnecessary for  it o  provide for  relaxation of the normal recruitment rules  in rule  5 and  relaxation of age and the procedural requirements  for selection  in rule 8.  Sun rule (1) of  rule 8  makes relaxation in the matter of age of the candidate seeking  appointment under  the said  rules.   sub rule (2)  dispenses with  the requirements of selection such as written  test or  interview by selection committee or any other authority.   Rule  5 speaks  of relaxation  and Rule 8 indicates the  extent of relaxation contemplated by the said rules.   Thus if  we read  rules 4,  5 and  8  together,  it becomes clear  that overriding  effect which is given to the said rules  is with respect to the age and the procedure for selection for  appointment on a post for which the dependent makes an  application.   The rule making authority has taken care to  emphasise, even  while making such relaxation, that employment  is   to  be  given  only  if  there  eligibility conditions are  satisfied by  providing that  such dependent member   must   fulfill   the   educational   qualifications prescribed for the post and mist also otherwise be qualified for  Government   service.     While  dispensing   with  the procedural requirements for selection it is provided that it shall be  open to  the appointing authority to interview the candidate in order to satisfy itself that the candidate will be able  to  maintain  the  minimum  standard  of  work  and efficiency expected on the post.  If the rules are construed in this  manner,   and so  we do,  the contention  raised on behalf of the respondents that notwithstanding the fact that the post  of clerk  which had fallen vacant, belonged to the promotional quota,  the respondent  No. 4  should have  been appointed on  that post,  and not  the appellant,  has to be rejected.      It is  also pertinent to note that the Dying in Harness Rules are  made  under  Article  309  of  the  Constitution. Article  309   empowers  the   appropriate  legislatures  to regulate  the  recruitment  and  conditions  of  service  of persons appointed to public services and posts in connection with the  affairs of the Union or the State.  The proviso to that Article  empowers the  President in  the  case  of  the

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services and  posts in  connection with  the affairs  of the Union and  the Governor  of a  State in the case of services and posts  in connection  with the  affairs of  the State to make rules  regulating the recruitment and the conditions of service of  persons appointed  to such  services  and  posts until provision in that behalf is made by or under an Act of the appropriate  Legislature under  that Article.  The rules made in  exercise of  this power  have the effect subject to the provisions  of any  such act  passed by  the appropriate legislature.   We assume  that in the State of Uttar Pradesh there  are   other  rules  regulating  the  recruitment  and condition of service of persons appointed in U.P. Government service and on posts under that Government, made by or under Acts of  U.P.  legislature.    Obviously,  the  rule  making authority, while  making the  Dying in  Harness Rules, could not have  intended to  override such  statutory  provisions. For this  reason also we cannot construe rule 4 of the Dying in Harness Rules in the manner suggested by the respondent.      For the reasons stated above we are of the opinion that the contrary  view taken  by the  High Court  is wrong.  We, therefore, allow  this appeal,  set aside  the judgment  and order dated 10.12.1993 passed by the Allahabad High Court in Special Appeal  No. 878  of 1993 and dismiss the Civil Misc. Writ Petition  No. 444  of 1991,  filed by  respondent No.4. There shall be no order as to costs.