IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) No. 232 of 2009 Krishan Prasad ………….Petitioner Versus Additional District (Basic) Education Officer Almora and another ……...Respondents. Present : Mr. Amish Tiwari, Advocate for the petitioner. Mr. Anil Bisht, Brief Holder for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. Amish Tiwari, Advocate for the petitioner and Mr. Anil Bisht, Brief Holder for the State of Uttarakhand. The father of the petitioner was an Assistant Teacher in a Junior High School, namely, Primary School Hawal Bagh, Almora, who died while in harness in the year 1998. In the year 2001, the petitioner was given appointment on a class IV post in the Education Department under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (from hereinafter referred to as Dying in Harness Rules). The petitioner though was not satisfied with the said appointment and moved a writ petition before this Court being Writ Petition (S/S) No. 1460 of 2003 claiming that his appointment was liable to be made on class III post. The said writ petition was disposed of by a learned Single Judge of this Court vide order dated 20.5.2008 directing the authorities to decide the representation of the petitioner. Consequently, the petitioner moved a representation in compliance of order dated 20.5.2008 which was rejected by the Additional District (Basic) Education Officer, Almora vide order dated 11.9.2008. 2 Aggrieved, the petitioner has filed the present writ petition. Appointments in public service are made, subject to reservations, etc. purely on the basis of merit. There is a selection process involved in such matters and only if one qualifies the selection process, one is liable to be given such an appointment. Such a process is also applicable on class III and class IV posts. Appointment given on compassionate ground under the Dying in Harness Rules is an exception to the Rules referred above. Such an exception has been carved out by the Legislatures in a welfare State so that a family who has been deprived of its only bread winner is able to meet the immediate hardship which has fallen upon the family, due to death of the only earning member. In most cases such families who have lost their bread-winner are at the stage of penury and face extreme financial hardship. The provision of law, referred above (i.e. appointment on compassionate ground) thus seeks to mitigate the hardship of a family in distress. The Hon’ble Apex Court in Director of Education (Secondary) and another v. Pushpendra Kumar and others reported in (1998) 5 SCC 192 has dealt precisely with this issue which is presently before this Court. The Hon’ble Apex Court in the above case stated as under :- “8. 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 3 provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants 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 to 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 dependant of a deceased employee…” In the aforesaid decision, the Hon’ble Apex Court had also relied upon the earlier decisions of the Court, namely Umesh Kumar Nagpal V. State of Haryana (1994) 4 SCC 138 where it has been held that the Government before giving such appointment 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 4 meet the crisis a job should be offered to the eligible member of the family. Another aspect which was decided by the Hon’ble Apex Court in Umesh Kumar Nagpal Case (supra) was whether such appointment on compassionate ground could be made against the posts higher than class III and class IV and it was held that such appointment could only be made against the lowest posts in non-manual categories. The Hon’ble Apex Court in paragraph 2 of the said judgment stated as follows :- “2…..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 dependant 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 be given by the public authorities for the purpose.” In the said case i.e. Umesh Kumar Nagpal Case as well as in the Director of Education (Secondary) Case (supra), it has been reiterated by the Hon’ble Apex Court that the earlier decision made by the Hon’ble Apex Court in Sushma Gosain v. Union of India (1989) 4 SCC 468 “has been misinterpreted to the point of distortion”. This is being stated here as the counsel for the petitioner has placed much reliance upon Sushma Gosain case (supra). Reverting back to the decision of the Hon’ble Apex Court in Director of Education (Secondary) case, the question before the Court was that in a grant in aid school when an employee dies in harness, whether he is in teaching or non-teaching post, his dependent is liable to be appointed on a class III post or not. The Hon’ble 5 Apex Court concluded that a dependent can only be appointed on a class IV post and he could not seek a direction for being appointed on a Class III post or for the creation of supernumerary post in class III for that purpose. The appointments on compassionate ground, as is the case in present writ petition, are presently governed by the Rules framed under Article 309 of the Constitution of India known as “the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974” which are also presently applicable in the State of Uttarakhand. Rule 5 being the main Rule for the said purposes is being quoted below :- “5. Recruitment of a member of the family of the deceased. – (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant 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, 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 purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person – (i) fulfils the educations prescribed for the post, 6 (ii) is otherwise qualified for Government service, and (iii) makes the application for employment within five years from the date of the death of the Government servant : Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.] [3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government Servant who are incapable for their own maintenance and were dependent of the abovesaid deceased Government servant immediately before his death.]” Inter alia, what the Rules state is that one member of a family of a Government employee who has died in harness can be “given a suitable employment in Government service”. Much emphasis has been placed upon the words “suitable employment” and it has been submitted that “suitable employment” would mean the employment for which a candidate has the qualification. In other words, since in the present case the petitioner 7 has qualification for class III post he has to be given appointment on a class III post only. Such an interpretation of the aforesaid Rule and more particularly of the particular provision, as referred above (i.e. suitable employment be given) is wholly misconceived. The Rules nowhere provide that a candidate is liable to be given an appointment according to his qualifications. As it has already been stated above, such appointments are in the nature of exception and such a provision has been made in order that a family which is in destitute is able to meet that unforeseen contingency. In the present case, it is undisputed that the petitioner has already been given appointment on a class IV post on compassionate ground under the aforesaid Rules. Nothing more needs to be done further in this case, as the claim of the petitioner for appointment on class III post has no legal foundations. The writ petition has no merit and is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 12.10.2011 Avneet