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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 :