Hiraman vs State Of U. P. - 1997 Supreme(SC) 1082

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(SC) 1082

1997(7) Supreme 621
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.C. Agrawal and G.T. Nanavati, JJ.
Hira Man -Appellant
versus
State of U.P. & Or -Respondents
Civil Appeal No. 5355 of 1997
Decided on 8-8-1997
Counsel for the Parties :
For the Appellant : P.K. Gaur and K.K. Gupta, Advocates.
For the Respondents : K.K. Rao and Ranjan Mukherjee, Advocates.

Headnote:Service Law-Constitution of India-Art. 309-Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974-Rules 3 to 5-Applicability-Appellant employed as Daftari in Intermediate College-One Assistant Teacher died while in service-His widow s application for appointment of her son, respondent 4 to a non-teaching post on compassionate grounds-One post of clerk became vacant-Appellant promoted as a clerk-Respondent No. 4 appointed as a peon-Appointment challenged-Respondent s claim that in view of Dying in Harness Rules, he had become entitled to immediate employment to vacant post of clerk-Whether can be allowed ? -(No)-High Court not justified in holding that Dying in Harness Rules over-ride all other recruitment rules-Order demoting appellant as a peon and appointing respondent No.4 on vacant post of clerk-Held, not sustainable.
       Held : that the Dying in Harness Rules are made under Article 309 of the Constitution. Article 309 empowers the appropriate legislatures to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or the State. The proviso to that Article empowers the President in the case of the services and posts in connection with the affairs of the Union and the Governor of a State in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under that Article. The rules made in exercise of this power have the effect subject to the provisions of any such act passed by the appropriate legislature. We assume that in the State of Uttar Pradesh there are other rules regulating the recruitment and condition of service of persons appointed in U.P. Government service and on posts under that Government, made by or under Acts of U.P. legislature. Obviously, the rule making authority, while making the Dying in Harness Rules, could not have intended to override such statutory provisions. For this reason also we cannot construe rule 4 of the Dying in Harness Rules in the manner suggested by the respondent. (Para 8)
       Further held : If 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. (Para 7)

JUDGMENT

Nanavati, J.-Leave granted. Heard learned counsel for both the sides.

2. The appellant was employed as a Daftari (class IV employee) in Nehru intermediate College, which is a recognised and Government aided college. He continued to work on that post till he was promoted as a clerk on 11.5.1990. In the said college, one Surya Narain Srivastava was working as an Assistant Teacher. He died on 11.5.1987 while in service. On 29.2.1989 his widow made a request to the Principal of the college for appointing her son, respondent No. 4, to a non-teaching post on compassionate grounds. In December, 1989 and February, 1990 Distt. Inspector of Schools, respondent No. 2, also wrote to the Principal of the college to give suitable employment to respondent No. 4. On retirement of a Head Clerk on 30.6.1989 one clerk was promoted to that post and, therefore, one post of clerk became vacant. In April, 1990 the management decided to promote and appoint the appellant on that post as it belonged to the promotional quota. It also decided to promote one Ramdin, who was working as a peon, as a Daftari in the place of the appellant and appoint respondent No. 4 as a peon. It then sought approval of the District Inspector of Schools for the proposed promotions and appointment. It was granted on 11.5.1990. Pursuant thereto the appellant was promoted as a clerk on 11.5.1990 and respondent No. 4 was appointed as a peon on 12.5.1990. Respondent No. 4 represented to the management that as he was a graduate and possessed necessary qualifications for appointment as a clerk he ought to have been appointed as a clerk and not as a peon especially when a vacant post of clerk was available. The management did not accept his representation. Therefore he filed Civil Misc. Writ Petition No. 444 of 1991 in the Allahabad High Court challenging the appointment of the appellant as a clerk.

3. The petition was allowed by a learned single Judge of that Court as he was of the opinion that, in view of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, respondent No. 4 had become entitled to an immediate employment after 29.2.1989 and it was, therefore, not proper for the management to delay his appointment after a post of clerk had fallen vacant in June, 1989 and to promote the appellant on that post on 11.5.1990. He, therefore, quashed the promotion of the appellant as a clerk and that of respondent No. 4 as a peon and directed the management and the authorities to appoint respondent No. 4 on the said vacant post of clerk w.e.f. 12.5.1990.

4. As a result of this decision the appellant was demoted as a peon. The appellant challenged the decision of the learned single Judge by filing Special Appeal No. 878 of 1993 in the High Court. The Division Bench of the High Court held that the Dying in Harness Rules over-ride all other recruitment rules in respect of posts not falling within the purview of the Uttar Pradesh Public Service Commission. It further held that in view of the educational qualifications of respondent No. 4 and the availability of a clear vacant post of a clerk respondent No. 4 ought to have been appointed as a clerk and not as a peon. It also held that the appellant, who was a class IV employee, ought not to have been promoted as a clerk, ignoring the claim of respondent No. 4. It, therefore, upheld the decision of the learned single Judge and dismissed the appeal.

5. The contention of the learned counsel for the appellant was that the post of clerk, which had fallen vacant after June, 1989 was of the promotional quota and, therefore, it was not available for an outsider including respondent No. 4 and, therefore, the High Court committed a grave error in quashing the promotion of the appellant to that post and directing the college management and the authorities to appoint respondent No. 4 on that post. On the other hand, what the learned counsel for the respondent No. 4 contended was that the Dying in Harness Ru

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