Maya Devi vs D.I.O.S.Etawah

Sudhir Narain, J.—The petitioner seeks writ of certiorari quashing the order dated 10121997 passed by the District Inspector of Schools, Etawah rejecting the representation of the petitioner for appointment to Class III post in Tilak Inter College, Auraiya, District Etawah.

The facts, in brief, are that petitioner''s husband, Sri Yogesh Mishra, was Physical Training Instructor in Tilak Inter College, Auraiya, district Etawah which is a recognised institution under the U.P. Intermediate Education Act, 1921. He died on 211989 while he was in service. The petitioner applied for appointment on Class III post but she was given appointment on Class IV post on 1531993. She joined the post which was offered to her. In the year 1995 she submitted a representation to the Committee of Management of the institution to appoint her as Assistant Teacher in L.T. grade in the institution. As the representation was not decided she filed writ petition No. 35336 of 1997 which was disposed of by this Court on 24101997 directing the District Inspector of Schools Etawah to dispose of the petitioner''s representation by a reasoned order. The District Inspector of Schools has rejected the representation of the petitioner by his impugned order dated 10121997 holding that the petitioner having once been appointed on compassionate ground, she cannot be given further appointment on a higher post again on compassionate ground.

Learned Counsel for the petitioner submitted that the petitioner was given appointment on Class IV post on 1531993 when Regulations 101 to 107 of Chapter III of U.P. Intermediate Education Act were not amended. Regulations 101 to 107 were amended vide notification dated 221995. The dependents of the teachers and other employee, dying in harness, could get appointment either on Class III or Class IV posts prior to amendment made in Regulations 101 to 107 but after the amendment the post of L.T. Grade teachers was also included. Regulations 103 to 107 also apply to those employee who died on or after 111981. Prior to the aforesaid amendment of Regulation 103 the dependent of a deceased employee could be appointed as non teaching staff but after the amendment such dependent, if eligible, can be appointed as Assistant Teacher in the institution. This provision enables the Committee of Management to appoint a dependent of a deceased employee on the post of teacher as well. The Amending rule, however, does not provide that those dependents who are already in employment they shall further be reconsidered for appointment on compassionate ground to a higher post on which they have already been appointed.

In State of Haryana v. Naresh Kumar Bali, (1994) JT (4) 184, wherein the dependent of a deceased employee who had died in harness was appointed as clerk but later on claimed the appointment to the post of Inspector, it was held that once the appointment on compassionate ground having been consumed, such claimant cannot be given further appointment to a promotional post. This legal principle was reiterated in State of Rajasthan v. Umrao Singh, (1994) 6 SCC 561 and it was held that once the appointment is made on compassionate ground, the right to be considered for the appointment on compassionate ground was consumated. It was observed:

"Therefore, the right to be considered for the appointment on compassionate ground was consumated. No further consideration on compassionate ground would ever rise. Otherwise, it, would be a case of "endless compassion." Eligibility to be appointed as SubInspector of Police is one thing, the process of selection is yet another thing. Merely because of the socalled eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case."

A Division Bench of this Court in Hirantan v. State of U.P. and others, (1994) 1UPLBEC 420, wherein the dependent of the deceased employee was given appointment under Rule 5 of U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1975 on Class IV post but later on Class III post having fallen vacant, he claimed appointment to such post on the ground that he was qualified for appointment to Class III post but at the time of his appointment there was no such vacancy he was entitled to be appointed to such post, the Court rejected such claim on the ground that the appointment under Rule once made a post which was vacant at that time, the claimant cannot further seek appointment to a higher post when subsequently the vacancy to such higher post comes into existence. Similar view was expressed in Manager, Committee of Management, Ganesh Shankar Vidyarthi Inter College, Kanpur v. Mahendra Kumar Shukla and others, (1994)1 UPLBEC 12.

The purpose of the appointment on compassionate ground is to mitigate the hardship due to the death of a bread earner in the family. In Sushma Gosain and others v. Union of India, AIR 1989 SC 196 the Supreme Court laid emphasis on this aspect.

In Umesh Kumar Nagpalv. State of Haryana and others, Judgment Today 1994 (3) SC 525, it was held that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. As a rule, appointments in the pubic services should be made strictly on the basis of open invitation applications and merit. No other mode of appointment nor other consideration is permissible. There are certain exceptions and one such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of life. It was observed as under:

"In such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. 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 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. The posts in Class III and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family of the financial destitution and to help it get over the emergency."

The petitioner having accepted appointment on compassionate ground, cannot subsequently claim appointment to a higher post. The claim of the petitioner is that she was qualified for appointment as a teacher and she should be given such employment. The petitioner cannot claim appointment on compassionate ground to the post of Assistant Teacher in L.T. grade in the institution merely because she is qualified for such post. If such post falls vacant, it is always open to the petitioner to apply for the same when it is advertised in accordance with law for making appointment to such post. She is not deprived off the right to be selected by the appropriate authority when the selection takes place for appointment to the post of Assistant Teacher in the institution.

The contention that at the time the petitioner was appointed under Regulation 103 ofChapter III of U.P. Intermediate Education Act, she could not be appointed as Regulation 103 did not permit the claimant to a post under Dying in Harness Rules but after the amendment in the Rule, such person can be appointed as a teacher but this rule does not provide that those persons who had already been appointed they shall be considered afresh for appointment on compassionate ground to that post.

There in no merit in the writ petition. It is accordingly dismissed.

W. P. dismissed.