Director
of Education (Secondary) & Anr Vs. Pushpendra Kumar & Ors [1998] INSC
310 (13 May 1998)
S.C.
Agrawal, S. Saghir Ahmad, M. Srinivasan S.C. AGRAWAL,J.
ACT:
HEAD NOTE:
WITH
[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
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 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.
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 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.
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 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 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 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 order
IN THE
MATTER OF:
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