Important Point
The dependents of teaching/non-teaching staff employed in non-Govt. recognised aided schools and intermediate colleges in U.P. who have died in harness cannot seek a direction for being appointed on a Class III post and for creation of supplementary post in Class III for that purpose under the Regulations.

Headnote:U.P. Intermediate Education Act, 1921-Section 9(4)-U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974-Circular dated 23.9.1981-Notification dated 30.7.1992, Notification dated 2.2.1995 amending the Regulations-Appointment to dependents of employees who died in harness-Respondents are dependents of persons who died in harness and who were employed as teaching/non-teaching staff in non-Government recognised aided schools/intermediate colleges in U.P.-Applications by dependents of deceased for giving appointment on compassionate grounds-Allowed for Class IV posts-Writ Petition for Class III posts - Allowed - Appeal to Supreme Court-Plea of giving rise to immense practical problems by High Court’s direction-Whether the view of the High Court that under the regulations as they stood prior to amendment by notification dated 2.2.95 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-Govt. aided institution dying in harness correct? (No) - Appeals allowed.
       Held : 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 that 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 a 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. If 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 appointment 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 that a supernumerary Class III post be created for the purpose of such appointment. (Para 10)
       Consequently held : 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 orders 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 as to costs. (Para 11)

Judgment

S.C. Agrawal, J.-Special Leave granted.

2. 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 in harness.

3. 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 referred to as ‘the 1974 Rules’), wherein provision is made for recruitment 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, unmarr

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1998 Supreme(SC) 624

Cases Referred (2)