Judgment

NANAVATI, J, J.

( 1 ) LEAVE granted.

( 2 ) ). Heard learned counsel for both the sides.

( 3 ) ). 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 4, to a non-teaching post on compassionate grounds. In December 1989 and February 1990 District Inspector of Schools, Respondent 2, also wrote to the Principal of the college to give suitable employment to Respondent 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 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 4 was appointed as a peon on 12/5/1990. Respondent 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 Miscellaneous Writ Petition No. 444 of 1991 in the Allahabad High court challenging the appointment of the appellant as a clerk.

( 4 ) ). 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 Dependants of government Servants Dying in Harness Rules, 1974, Respondent 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 topromote the appellant on that post on 11/5/1990. He, therefore, quashed the promotion of the appellant as a clerk and that of Respondent 4 as a peon and directed the management and the authorities to appoint Respondent 4 on the said vacant post of clerk w. e. f. 12/5/1990.

( 5 ) ). 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 override 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 4 and the availability of a clear vacant post of a clerk Respondent 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 4. It, therefore, upheld the decision of the learned Single Judge and dismissed the appeal.

( 6 ) ). 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 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 4 on that post. On the other hand, what the learned counsel for Respondent 4 contended was that the Dying in Harness Rules override al