Allahabad High Court
Kailash Nath Shukla Son Of Late Sant ... vs The Regional Assistant Director ... on 23 December, 2005
Author: Sabhajeet Yadav
Bench: Sabhajeet Yadav
JUDGMENT Sabhajeet Yadav, J.
1. The brief facts of the case are that the father of petitioner namely Sant Bhawan Shukla was a permanent Assistant Teacher in Junior High School in District Padrauna run and controlled by Basic Shiksha Parishad U.P., Allahabad, died in harness i.e. during the course of employment on 5.5.1982. At the time of his death no other member of family of petitioner was in the employment to relieve the family from financial hardship and distress arose on account of death of sole bread earner of the family. The petitioner was also unemployed and has possessed only Intermediate qualification. According to him, he was eligible for being appointed as an untrained teacher in junior high school. The petitioner has applied for his compassionate appointment under dying in harness rules on the post of Asstt. Teacher in Junior High School run by U.P. Basic Shiksha Parishad but on 7.3.1987 he was appointed as Asstt. Teacher in Primary School instead of Junior High School. In pursuance thereof the petitioner joined the post on 9.3.1987. It is alleged that State Government has issued several orders from time to time with regard to its policy for compassionate appointment under Dying-in-Harness Rules. In para 3 of such Government Order dated 2.2.1996 it was provided that the appointment of a dependent of a deceased employee would as possible as be made in the institution on the post of Assistant Teacher where the deceased had been working and if no post of Assistant Teacher is vacant in that institution then in any other institution of that district and in case there is absolutely no vacancy in the district, then a supernumerary post be created in the school where the deceased employee had been working and one dependent may be provided employment on the post of Assistant Teacher provided he is eligible for being appointed on the said post. It is stated that in view of clear-cut policy of the Government, the petitioner was fully eligible to be appointed as Assistant Teacher in Junior High School, but instead thereof he was appointed as Assistant Teacher in Primary School contrary to the policy of Government and against the wishes of the petitioner. It is further stated that on 13.1.1996 the Head Master of a Junior High School of District Padrauna made a request from District Education Officer for appointing a teacher in Junior High School on account of transfer of four teachers from that school elsewhere, there upon the District Basic Education Officer, Padrauna vide order dated 13.1.1996 made temporary arrangement appointing the petitioner in Junior High School on the post of Assistant Teacher (Sanskrit) Dandopur. Subsequently thereafter another District Basic Education Officer took over the charge of office and passed an order on 16.3.1996 directing the petitioner's posting in Primary School. Feeling aggrieved against this order of posting dated 16.3.1996 the petitioner made an application before Basic Shiksha Adhikari on 8.4.1996 requesting therein that he may be given permanent appointment as Assistant Teacher in Junior High Schools instead of Primary School, in pursuance of Govt. Order dated 2.2.1996. Thereafter petitioner made several reminders to same effect and ultimately he filed writ petition No. 35512 of 1996, Kailash Nath Shukla v. Regional Assistant Director, Basic Education and Ors., which was disposed of finally by this Court vide order dated 6.11.1996 with the direction that representation of petitioner may be decided expeditiously. In pursuance of the aforesaid order respondent No. 2 has decided the representation of petitioner vide order dated 27.1.1997 whereby the representation of petitioner has been rejected, hence this petition.
2. On behalf of respondents a detail counter affidavit has been filed while justifying the impugned order dated 27.1.1997, contained in Annexure-7 of the writ petition. In this counter affidavit, the stand taken by respondents before making parawise reply of the writ petition, in para 4,5 and 6 of the counter affidavit are as under:
4. That it will further not be out of place to submit before this Hon'ble Court that there are 2 sets of institutions are being running by the Board of Basic Education. One is Junior Basic School and other is Senior Basic School in which only the post of Assistant Teacher/Master in Junior Basic School is post of Direct Recruitment (In respect of Gents) in accordance with the procedure given in Rule 14 and 15 of the Basic Education Teachers Services Rules 1981 whereas the post of Assistant Teacher in Senior Basic School or the post of Head Master in Junior/Senior Basic School are the promotional post in accordance with the provisions given in Rule 18 of the said rules. The post of Assistant master in Senior Basic School or the post of Head Master in Junior/Senior Basic School cannot be filled by way of direct recruitment, which is clear in Rule 5 of the said rules.
For the kind perusal of this Hon'ble Court a copy of the extract of Rule 5 of the said rules is being filed herewith and marked as Annexure C.A. II to this affidavit.
Here many of the suitable candidates for promotion from the post of Assistant Teacher in Junior Basic School to the post of Head Master in Junior Basic School or, to the post of Assistant Teacher in Senior Basic School are already available and waiting even in District Kushinagar itself and also in other district of Province and therefore in view of Rule 5 of the said rules the petitioner has got no merit at all and his writ petition is liable to be dismissed with cost on this ground alone.
5. That it will also be pertinent to mention before this Hon'ble Court that the petitioner is illegally claiming for his Direct Recruitment as Assistant Teacher in Senior Basic School on account of misleading/misinterpreting the Government order dated 2.2.1996 (Annexure No. 3 to the writ petition) whereas in paragraph No. 1 of the said Government order itself it is clearly mentioned that the said Government order has been issued in respect of Director Recruitment of Assistant Teacher in Junior Basic School on compassionate ground not in respect of any appointment in Senior Basic School/Junior High School. The word "USI V1DYALAYA" (The same Institution) in paragraph No. 3 of the said Government order has been given in respect of the location of the Junior Basic School not in respect of Senior Basic School.
A copy of the said Government order dated 2.2.1996 is being filed herewith and marked as Annexure No. C.A. Ill to this affidavit.
6. That prior to issuance of said Government order dated 2.2.1996 the Government has already issued a Government order dated 23.3.1990 directing to make the compassionate appointment on the post of Assistant Teacher in Primary Institution not in Junior High School.
A copy of the said Government order is also being filed herewith and marked as Annexure no. C.A. IV to this affidavit.
From the perusal of the both said orders also it is clear that the petitioner has got no merit at all and his so called claim is void abinitio and therefore the writ petition is liable to be dismissed.
3. Having heard the rival contentions of learned counsel of the parties and from perusal of records, the first question arises for consideration as to whether the petitioner was entitled for compassionate appointment on the post of Assistant Master in Primary School (Junior Basic School) or on the post of Assistant Master in Junior High School (Senior Basic School) which is a promotional post under relevant service rules in schools run and controlled by U.P. Basic Shiksha Parishad under Dying-in-Haraess rules?
4. To find out complete and correct answer to this question it is necessary to examine the relevant provisions of Dying-in-Harness Rules and/or Govt. Orders having material bearing on the issue under which compassionate appointment under aforesaid rules are made vis-a-vis provisions of relevant service rules. In this connection it is necessary to mention here that U.P. Basic Education Teachers Service Rules, 1981 is relevant service Rules dealing with such appointments. Rule-2 contains definition clause, which defines and describes various expressions employed and used under the rules. Rule-2 (b) defines the expression "Appointing Authority", in relation to teachers referred to in Rule-3, means the District Basic Education Officer. Rule-2 (c) defines the expression "Basic School" which means a school where instructions from class I to class VIII are imparted. Rule-2(h) defines expression "Junior Basic School" means a Basic School where instructions from class I to class V are imparted. Rule-2(m) defines the expression "Senior Basic Schools", means where instructions from class VI to class VIII are imparted. Rule-3 provides extent of applicability of rules which is made applicable to all teachers of Local Bodies transferred to the Basic Education Board, under Section 9 of the U.P. Basic Education Act, 1972 and all teachers employed for the Basic and Nursery schools established by the Board. Rule-5 provides sources of recruitment, which reads as under:
5. Sources of recruitment- The mode of recruitment to the various categories of posts mentioned below shall be as follows:
(a) (i) Mistresses of Nursery By direct recru-
Schools itment as provided
in Rules 14 and 15;
(ii) Assistant Masters
and Assistant
Mistresses of Junior
Basic Schools Ditto
(b) (i) Head Mistresses of By promotion as
Nursery provided in
Schools Rule 18;
(ii) Head Masters and Head
Mistresses of Junior
Basic Schools Ditto
(iii) Assistant Masters of
Senior Basic Schools Ditto
(iv) Assistant Mistresses
of Senior Basic Schools Ditto
(v) Head Masters of Senior
Basic Schools Ditto
(vi) Head Mistresses of Senior
Basic Schools Ditto
Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15.
5. Rule-8 of Rules 1981 deals with academic qualifications, Sub-rule-3 of which provides for minimum experience of candidates for promotion to a post referred to in Clause (b) of Rule-5, reads as under :
(3) The minimum experience of candidates for promotion to a post referred to in Clause (b) of Rule 5 shall be as shown below against each:
-----------------------------------------------------------
Post Experience
-----------------------------------------------------------
(i) Head Mistress of Nursery At least five years'
School teaching experience
as permanent Mistress of
Nursery School.
(ii) Head Master or Head At least five years'
Mistress of Junior Basic teaching experience
School and Assistant as permanent Assistant
Master or Assistant Master or Assistant
Mistress of Senior Mistress of Junior Basic
Basic School. School.
(iii)Head Master or Head At least three years'
Mistress of Senior Basic experience as
School. permanent Head Master
or Head Mistress
of Junior Basic School
or permanent Assistant
Master or Assistant
Mistress of Senior Basic
School, as the case
may be :
--------------------------------------------------------
Provided that if sufficient number of suitable eligible candidates are not available for promotion to the posts mentioned at serial number (ii) or (iii) the field of eligibility may be extended by the Board by giving relaxation in the period of experience.
6. Rule-10 of Rules 1981 deals with relaxation of rules which reads as under
10. Relaxation for ex-servicemen and certain other categories:- Relaxation, if any, from the maximum age-limit, educational qualifications or/and any procedural requirements of recruitment in favour of the ex-servicemen, disabled military personnel, dependents of military personnel dying in action, dependents of Board's servants dying in harness and sportsmen shall be in accordance with the general rules or orders of the Government in this behalf in force at the time of recruitment.
7. Thus on plan reading of Rule-5 (a) of the rules, it is clear that the post of Assistant Mistresses of Nursery Schools, Assistant Master and Assistant Mistresses of Junior Basic Schools are filled up by direct recruitment as provided in Rule 14 and 15, rests of the posts including the post of Assistant Master or Assistant Mistresses of Senior Basic Schools included in Clause (iii) and (iv) of Rule 5(b) of the rules are filled by promotion as provided under Rule-18. A proviso has also been appended to the Rule-5(b) of the rules which provides that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, the appointment may be made by direct recruitment in the manner laid down in the Rule-15. Under Rule-8(3) of the rules only those candidates would be eligible for promotion on the post of Assistant Master or Mistresses in Senior Basic School who have atleast five years teaching experience as permanent Assistant Master or Assistant Mistresses of Junior Basic School. Rules-14 to 17 deals with procedure for preparation of select list through direct recruitment. Rule-18 provides procedure for recruitment by promotion. The provisions of the Rule-10 of the aforesaid rules, deals some sort of relaxation of rules in favour of certain category of persons including dependents of Board's servants dying in harness, only in respect of maximum age limit, educational qualification and/or other procedural requirement of rules of recruitment in accordance of the general rules or Government Orders issued in this behalf at the time of recruitment.
8. Now coming to the relevant Government orders referred by the parties, it is to be seen that Govt. Order No. 480/15-5-90-30/82 dated 23rd March, 1990 whereby compassionate appointment under dying in harness rules are made applicable in respect of dependents of teaching and non-teaching employees of the Board, has been issued under Section 13(1) of U.P. Basic Education Act, 1972. It has statutory sanction and backing. In para (1) of said Govt. Order it is provided that one unemployed member of family of deceased employee died during the course of employment may be appointed on the post of Assistant Teacher in Primary Schools of Board or non-teaching class III and class IV post, on application made provided such dependent is eligible and possesses minimum qualification prescribed for the post. The appointment shall be made by relaxing the procedural requirement of the rules of recruitment. In para-2 of the said Govt. Order it is also provided that untrained dependent of deceased employee otherwise eligible and qualified under U.P. Basic Education Teachers Service Rules, 1981 would be appointed on the post of Assistant Teacher or Assistant Mistresses in Primary School with the condition that they shall obtain necessary training within five years from the date of such appointment and on acquisition of such training his appointment shall be made on regular basis. Although subsequent Govt. Order dated 2.2.1996 has been issued by superseding earlier Govt. Order dated 23.3.1990 but in the same manner under the same provisions of the Act, 1972. The provisions contained in para 1 and 2 of the earlier superseded Govt. Order have been reiterated in this Govt. Order also by incorporating the same again with slight variance in para 2 of the Govt. Order whereby the untrained teacher is required to obtain training within three years of appointment. Other provisions of this Govt. Order need no detail discussion at this stage.
9. Thus from a close scrutiny of the aforesaid provisions of rules and Govt. Order it is clear that an eligible and qualified dependent of deceased employee can be appointed only on the post of Assistant Master or Assistant Mistresses in Primary School i.e. Junior Basic Schools of the Board or on class III and IV post of the Board, which is liable to be filled up by direct recruitment. No such appointment can be made against a post, which is liable to be filled up by promotion. The post upon which the petitioner stakes his claim for appointment i.e. post of Assistant Master in Senior Basic Schools is promotional post and is liable to be filled up by promotion of Assistant Teacher of Junior Basic School under Rule-18 of the Rules, 1981. The recourse to fill up said post through direct recruitment under the Rule-15 of the Rules 1981 can only be made in a situation envisaged under the proviso to Rule-5(b) of said Rules and only when the candidates for promotion are not available and in no other situation.
10. At this juncture an incidental question arises for consideration is that what are functions, object or purpose of the proviso appended to Rule 5(b) of the said rules? In this regard it is necessary to point out that it is well settled that a proviso plays various role in different situation depending upon the scheme under lying the statute in question. In this connection it would be useful to refer a decision of Hon'ble Apex Court rendered in S. Sundaram Pillai v. V.R. Pattabhiraman , wherein Hon'ble Apex Court has dealt with in detail the nature, object and purpose of the proviso appended to a statute by making references of several juristic opinions and law laid down earlier by the Apex Court in para 26 to 43 of the decision. The observations made by Supreme Court in para 26, 42 and 43 of the decision are as under :
26. The next question that arises for consideration is as to what is the scope of a proviso and what is the ambit of an Explanation either to a proviso or to any other statutory provision. We shall first take up the question of the nature, scope and extent of a proviso. The well-established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein, which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment.
42. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the main enactment;
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.
43. These seem to be by and large the main purport and parameters of a proviso.
11. Thus from the aforesaid settled legal position, it is clear that proviso appended to statute plays different role in different situation depending upon the scheme under lying the statute. Applying the aforesaid principles enunciated by the Apex Court, it is clear that proviso appended to Rule 5 (b) of the Rules 1981 carves out an exception to the enacting provisions of statute and operates only in situations envisaged under the proviso itself, meaning thereby the post of Assistant Master and Assistant Mistress in Senior Basic School can be filled up through direct recruitment in the manner laid down in Rule 15 of the rules, only if suitable candidates are not available for promotion to the said posts and in no other situation. At this juncture it is also necessary to point out that since the said proviso has been employed as an exception to the enacting part of the main statute, therefore, the same cannot be construed to nullify the main provisions to which it is an exception or set at naught the real object of main enactment. Thus, there can be no scope for doubt to hold that the said proviso has to play a role within the limited field assigned to it by rule making authority. It cannot be utilized to achieve an object different and alien to the purpose contained in the proviso itself. In my considered opinion such situation can arise and be satisfied only when the claim of all the eligible and qualified persons entitled for promotion under Rule 5(b) read with Rule 8(3) of the Rules are considered for promotion according to procedure provided under Rule 18 by selection committee constituted under Rule-16 for promotion as required under the aforesaid rules and thereafter if it is found as fact that suitable persons are not available even by taking recourse of the proviso of Rule 8(3) whereby relaxing the period of experience also only, in that situation alone the proviso appended to Rule 5 (b) of the rules can be pressed into service. Taking different and contrary view in the matter and permitting the authority concerned to take recourse of proviso appended to Rule 5(b) of the Rules without undertaking aforesaid exercise would render main provision of Rule 5(b) together with Rule 8(3) redundant and it would also unduly interfere with the rights of persons eligible, qualified and entitled for promotion inasmuch as open the gate of favourtism and corruption rampant in the public life. Therefore, before coming to such conclusion that suitable candidates for promotion are not available to the post mentioned at (III ) and (IV) under Rule 5(b) of the Rules, the authority entrusted with the function must strictly comply and adhere to the aforesaid rules.
12. Now coming to the provisions contained in Rules-10 of Rules 1981 it is clear that said rule has also limited scope of relaxation of the rules only to the extent indicated thereunder which in clearest term stipulates, in respect of maximum age limit, educational qualification and other procedural requirement of the rules of recruitment. Thus from the perusal of Rule 10 of the aforesaid Rules there appears no difficulty in understanding the true import of rules of relaxation regarding the maximum age limit, educational qualification in common and legal parlance both but so far as the expression "other procedural requirement of rules of recruitment" is concerned it requires some more clarification by way of interpretation to find out true intent and import of the expression. In this connection it is necessary to point out that procedure for recruitment consists of several steps, normally it starts from advertisement of vacancy in daily newspapers having wide circulation and asking names of candidates from employment exchange. Sometime selection also consists of preliminary examination and thereafter-main examination and in the main examination too written test and interview. Having regard to the scheme of statute for providing compassionate appointment, such long drawn process of selection would naturally cause undue delay in providing compassionate employment under Dying in Harness Rules, therefore, in order to avoid undue delay and shorten the process in holding selection for compassionate appointment the aforesaid procedural requirement of recruitment can be relaxed by general rules or government orders issued in this behalf. Thus the relaxation of "procedural requirement of rules of recruitment" should be understood in the parameters stated herein above.
13. Now another incidental question arises as to whether the provisions regarding the source of recruitment contained in Rule 5 of the rules are procedural or substantive in nature and would be covered under Rule-10 or not? In this connection it is necessary to be pointed out that the provisions regarding the source of recruitment confer certain rights and benefit in favour of certain persons entitled to be considered for appointment on the post in question either by way of direct recruitment or through promotion, therefore, being basic and fundamental rules of recruitment it cannot be said to be procedural in nature rather it would be of substantive in nature. Since the provisions of Rule-5 are substantive in nature, hence it cannot be covered under Rule-10 for the purposes of the relaxation of rules of recruitment. Thus the scope of Rule-10 has to be limited only to the extent of situations envisaged under the aforesaid rules indicated herein before and in no other situation.
14 In this connection it would be useful to refer some decisions of Hon'ble Apex Court, wherein the question of appointment under Dying-in-Harness Rules vis-a-vis rules regarding relaxation of rules of recruitment was under consideration. In Hira Man v. State of Uttar Pradesh Hon'ble Apex Court while considering the scope of Rules 4 and 5 of U.P. Recruitment of Dependents of Government servant Dying-in-Harness Rules, 1974 has held that overriding effect which is given to the rules in respect of procedure for selection for appointment on the post for which the dependent makes an application should not be read in isolations but it should be read in context of Rule 8 of the aforesaid Rules, which deals with the situations under which Rules of Recruitment is relaxed. The Apex Court has rejected the claim of compassionate appointment of respondent No. 4 even on class III posts falling in the quota of promotion of appellant therein. For ready reference para 9 of the decision of Hon'ble Apex Court is reproduced as under:
9. 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 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 secure 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 to provide for relaxation of the normal recruitment rules in Rules 5 and relaxation of age and the procedural requirements for selection in Rule 8. Sub-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 it 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 other eligibility conditions are satisfied by providing that such dependent member must fulfill the educational qualifications prescribed for the post and must 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.
15. In State of Bihar and Ors. v. Samsuzzoba (1996) 3 UPLBEC 1974, Hon'ble Apex Court has held that candidates under Dying in Harness Rules have no vested right to be appointed on higher post according to the qualifications. In para 4 of the decision Hon'ble Apex Court has held as under :
4. The question that arises for consideration is whether the High Court is right in giving directions to appoint them afresh or give them promotion? It is not in dispute that there is no right vested in the candidates for particular appointment on compassionate grounds. The State had taken policy decision to appoint all the candidates irrespective of the qualifications as Class IV post and, therefore, the committee consisting of the Secretary, Addl. Secretary and the Registrar met and decided the principle that all the available posts in Class IV should be made available to the candidates in the awaiting list for appointment on compassionate grounds. 12 posts available in Class III were reserved for appointment by promotion to the Class IV candidates who were entitled thereto as per the rules. The Principle adopted by the Government cannot be said to be unjustified or illegal. Undoubtedly, some candidates had gone to the Court and obtained orders and in compliance thereof at pain of contempt petition, the Government, instead of appointing them to Class IV posts since by then the Class III posts were not available, upgraded Class IV post as Class III post and confirmed them as Class III employees. That order which was wrongly made by the High Court cannot be a base in issue directions. In other words, if the directions are complied with all the Class IV posts would be converted into Class III posts which is against the discipline of the service. The High Court, therefore, was not justified in issuing directions in all the cases for appointment to Class III.
16. In Director of Education (Secondary) v. Pushpendra Kumar , while taking note of the earlier decision of the Apex Court rendered in the case of Umesh Kumar Nagpal v. State of Haryana of the judgment it was observed that -
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 sorne 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 can not subsume the main provision to which it is an exception and thereby nullifies 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 dependent of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana 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 at page 2308 of AIR SCW :-
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., expected or required to be 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.
17. Thus from a close analysis of law laid down by Hon'ble Apex Court it is clear that if the intention of rule making authority is to give the Dying in Harness Rues an overriding effect over all other recruitment rules or regulation in all respect then it would have been unnecessary for it to provide for relaxation of the recruitment rules only in respect of maximum age limit, educational qualification and/or any procedural requirement of recruitment in favour of certain category of persons including dependents of Board's servants Dying in Harness in accordance with general rules or Government orders in this behalf in force at the time of recruitment. Thus in my opinion the relaxation of rules of recruitment is permissible only to the extent indicated in Rule-10 of the said rules. As held earlier since Rule 5 of rules provides source of recruitment and is substantive and fundamental in nature, therefore, does not cover under Rule 10 of the rules, Thus, I have no hesitation to hold that Rule-5(b)(iii) and (iv) which provides that the post of Assistant Master or Assistant Mistress are liable to be filled up by promotion according to Rule-18 of rules, cannot be relaxed under Rule-10 of the rules, making it available for direct recruitment. The proviso appended to Rule-5(b) of the rules no doubt carves out exception to the main provisions contained in the enacting part of the rule but it would apply only in situation envisaged therein and in no other situation. Therefore, the same cannot be utilized for different purpose that is for relaxation of rules regarding the source of recruitment, which is fundamental and substantive in nature for the purpose of making it available for Dying in Harness Rules. Such interpretation would lead anomalous result and rights of persons entitled for promotion would be unduly impaired and prejudiced.
18. Now coming to another incidental question arises for consideration as to whether the petitioner could be appointed as Assistant Master in Senior Basic Schools, which is a promotional post under the rules of recruitment? In this connection it is necessary to point out as seen earlier neither the Govt. Order referred by the petitioner, permits such appointment nor the rules of recruitment could be relaxed to take it within its fold. Contrary to it having regard to the nature of appointment as held by Hon'ble Apex Court in the decisions referred herein before, the object underlying the provisions for grant of compassionate appointment is to enable the family of deceased employee to tide over the sudden crisis resulting due to the death of the bread earner which left the family 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 relieved from financial hardship and distress. Since such provisions makes a departure from general provisions providing for appointment on the post by following particular procedure and such provision enables appointment being made without following said procedure. It is in the nature of an exception to the general provisions. An exception cannot nullify the main provisions to which it is an exception thereby taking away completely the right conferred by the main provision. Thus a care should be taken that a provision for grant of compassionate employment which is in the nature of an exception to the general provision does not unduly interfere with the right of other persons who are eligible for appointment to such employment against the post which would have been available to them but for provisions enabling appointment being made on compassionate grounds of dependents of a deceased employee. Almost in all the aforesaid cases the Hon'ble Apex Court has held that the compassionate appointment should be made at lowest post in service, as only in that situation it would have some rational nexus with the object sought to be achieved vis-a-vis competing dominant public interest. Thus there can be no scope for doubt to hold that the petitioner could not be appointed on the post of Assistant Master in Senior Basic Schools or Junior High Schools under Dying in Harness Rules, which is promotional post. His such appointment is neither permissible under the proviso of Rule 5(b) of rules unless situation envisaged thereunder is existing meaning thereby unless it is found as fact that suitable candidates are not available for promotion on the said post nor Rule 10 of Rules 1981 permits his such appointment by taking recourse to relax the Rule 5(b) of the aforesaid rules, which is beyond the scope of relaxation of rules regarding procedural requirement of rules of recruitment envisaged under Rule 10 of the aforesaid Rules.
19. Now coming to the facts and circumstances of the case again, it is not in dispute that petitioner's father who was a permanent Assistant Teacher in Junior High School (Senior Basic School), in district Padrauna died in harness on 5.5.1982. The petitioner had applied for his compassionate appointment under Dying in Harness Rules on the post of Assistant Teacher in Junior High School (Senior Basic School) run by Board but on 7.3.1987 he was appointed as Assistant Teacher in Primary School (Junior Basic School) instead of Junior High School (Senior Basic School). In pursuance thereof he joined the post on 9.3.1987. Thereafter it appears that on request of Head Master of a Junior High School of district Padrauna, District Basic Education Officer vide order dated 13.1.1996 as a measure of temporary arrangement appointed the petitioner as Teacher in Junior High School (Senior Basic School). But when another District Basic Education Officer took over charge of the office he passed an order on 16.3.1996 directing the petitioner's posting as Assistant Teacher in Primary School (Junior Basic School). Feeling aggrieved against which he made an application before District Basic Education Officer on 8.4.1996 requesting therein that he may be given permanent appointment as Assistant Teacher in Junior High Schools instead of Primary School, in pursuance of Government Order dated 2.2.1996. Ultimately finding no favour from the office of District Basic Education Officer the petitioner filed a writ petition No. 35512 of 1996 which was disposed of finally by this Court vide order dated 6.11.1996 with the direction that representation of petitioner may be decided in pursuance thereof vide order dated 27.1.1997 District Basic Education Officer has decided the representation by reasoned and speaking order whereby the claim of petitioner's compassionate appointment on the post of Assistant Master in Junior High School has been rejected. It is against this order the petitioner has filed above noted petition before this Court.
20. The submission of learned counsel for the petitioner, that in view of para 3 of the Government Order dated 2.2.1996, which provides that appointment of dependent of deceased employee would as far as possible be made in the institution on the post of Assistant Teacher where the deceased have been working and if no post of Assistant Teacher is vacant in that institution then in any other institution of that district and in case there is absolutely no vacancy in the district then supernumerary post may be created in school where the deceased employee had been working, the petitioner was entitled to be appointed on the post of Assistant Teacher in Junior High School as untrained teacher appears to be misconceived for simple reason that the post of Assistant Teacher in Junior High School (Senior Basic School) is a promotional post, as such the petitioner could not claim his compassionate appointment on the said post. Besides this, once he has accepted the post of Assistant Master in Primary School (Junior Basic School) of the Board in the year 1987 on compassionate grounds he can not claim again any higher post on the same ground unless promoted on the said post on his turn according to rules of recruitment. So far as his appointment on the post of Assistant Teacher in Senior Basic School vide order dated 13.1.1996 made by the District Basic Education Officer, is concerned, it was illegally secured by the petitioner by manipulation which too was for short period and by subsequent order dated 16.3.1996 the petitioner has been again posted at Primary School (Junior Basic School) as Assistant Teacher. Thus aforesaid illegality appears to have been rectified. The appointment of petitioner on the post of Assistant Teacher on 13.1.1996 in Senior Basic School was neither made by way of promotion nor made on regular and permanent basis under the proviso to Rule 5(b) by way of direct recruitment. The proviso appended to the Rule 5(b) of Rules 1981 no doubt permits the recruitment on the post of Assistant Teacher in Junior High School through direct recruitment method under Rule-15 of the rules but it is only in the circumstances envisaged under the aforesaid proviso where the suitable candidates entitled for promotion are not available. The averments made in the counter affidavit filed in the writ petition clearly indicates that several eligible, qualified and suitable candidates in the quota of promotion are available and are waiting their turn for promotion on the post in question. In such a situation the proviso cannot come into play in absence of situation envisaged thereunder as discussed herein before. Besides this, since Rule 5 cannot be taken into fold of Rule 10 permitting relaxation of rule for the reasons indicated herein before, therefore, on this count also the submission of learned counsel for the petitioner appears to be misplaced and has to be rejected.
21. That apart, it is also necessary to point out that the petitioner has secured his illegal appointment on compassionate ground on the post of Assistant Master in Senior Basic School on 13.1.1996 contrary to the rules of recruitment, which was rectified subsequently on 16.3.1996 by District Basic Education Officer, the same view was reiterated again by District Basic Education Officer vide impugned order dated 27.1.1997, thus in my considered opinion in such situation writ jurisdiction of this court under Article 226 of the Constitution of India cannot be invoked by the petitioner to restore an illegal order of District Basic Education Officer dated 13.1.1996 passed in his favour. The aforesaid view also finds support from the decision of Hon'ble Apex Court rendered in Gadde Venkateswara Rao v. Govt. of Andhra Pradesh . The aforesaid decision is being consistently followed by Hon'ble Apex Court in M.C. Mehta v. Union of India and in Canara Bank v. V.K. Awasthi . Therefore in view of aforesaid settled legal position and further since the petitioner has already been enjoying the benefit of compassionate employment on the post of Assistant Master in Primary School of the Board by virtue of his such appointment w.e.f. 7.3.1987, therefore, no interference is called for in the impugned order dated 27.1.1997.
22. Thus in view of aforesaid discussions and observations, I do not find any justification to interfere in the impugned order dated 27.1.1997 passed by District Basic Education Officer, Padrauna on the representation of petitioner. Thus the writ petition is devoid of merits hence liable to be dismissed.
23. Accordingly the writ petition fails and is dismissed.