THE METAPHYSICS OF COMPASSIONATE APPOINTMENT : PART - XII

SOME REFLECTIONS IN INDUSTRIAL AND SERVICE JURISPRUDENCE : THE METAPHYSICS OF COMPASSIONATE APPOINTMENT : WHAT DID THE HON'BLE SUPREME COURT SAY ? : AN APEX JUDICIAL DICTUM : PART-XII 

AJAYA KUMAR SAMANTARAY,DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),SHRAM BHAWAN, JAGJIVAN NAGAR,DHANBAD: 826003

PRELUDE : In this case, the Hon'ble Supreme Court had an occassion to decide twelve Civil Appeals pertaining to compassionate appointment pertaining to the department of Director of Secondary Education. Government of Uttar Pradesh.The esteemed readers are requested to read the following case-law.

THE CASE-LAW :

DIRECTOR OF EDUCATION (SECONDARY) AND ANOTHER vrs PUSHPENDRA KUMAR AND OTHERS [1998 IVAD (SC) 514 = AIR 1998 SC 2230 = JT 1998 (4) SC 155 = 1998 (3) SCALE 590 = (1998) 5 SCC 192 = [1998] 3 SCR 432 = 1999 (1) SLJ 32 (SC) = (1998) 2 UPLBEC 1310] DoJ : 13 May, 1998

FACTS OF THE CASES:

      In these matters, the Hon’ble Apex Court had an occasion to deal with the following Civil Appeals :

Sl Nos Civil Appeal and SLP Nos.

i C.A No. 2710 of 1998   (arising out of SLP (C) No.      339/94)

ii C.A.No. 2711 of 1998   (arising out of SLP (C) No.    2328/94)

iii C.A.No. 2713 of 1998  (arising out of SLP (C) No.    2735/94)

iv C.A.No. 2714 of 1998  (arising out of SLP (C) No.   16350/94)

v C.A.No. 2715 of 1998  (arising out of SLP (C) No.    1186/94)

vi C.A.No. 2716 of 1998   (arising out of SLP (C) No.      348/95)

vii C.A.No. 2717 of 1998   (arising out of SLP (C) No.      901/95)

viii C.A.No. 2718 of 1998  (arising out of SLP (C) No.   206.9/93)

ix C.A.No. 2719 of 1998  (arising out of SLP (C) No.     1062/94)

x C.A. No. 2720 of 1998  (arising out of SLP (C) No.     4100/94)

xi C.A. No. 2721 of 1998  (arising out of SLP (C) No.     4613/94) 

xii C.A. No. 2722 of 1998  (arising out of SLP (C) No.   4664/94)

The above appeals related 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 died in harness.

SCHEME OF COMPASSIONATE APPOINTMENT:

      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 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, unmarried or widowed daughter of the deceased.

NOTE : This regulation and regulation 104 to 107 shall apply in respect of those deceased employees also who dies on or after January 1, 1981.

104 : The Management or Principal or the Head Master, as t he case may be, of the recognised aided institution shall submit a report giving the name, post held, scale of pay, date of appointment, date of death, name of the employer institution of the deceased and the name, educational qualifications and age etc. of the family members thereof to the inspector within seven days from the date of occurrence of death. The inspector shall register the particulars of the deceased in a register to be maintained by him.

105 : A member of the family of the deceased employee referred to in regulation 104 shall submit an application to the concerned Inspector for appointment to a post in the non-teaching cadre. The application shall be considered by a Committee and after the Committee has recommended his appointment, the Inspector shall send the application to the Management or the Principal or the Head Master, as the case may be, of the institution where the applicant is to be employed in accordance with the provisions contained in regulation 106 for issuing appointment order. The Committee shall comprise :

1. Inspector : Chairman

2. Accounts Officer in the office of : Member District Inspector of Schools

3. District Basic Siksha Adhikari : Member 106 : The appointment of the family member of the deceased employee shall be made, as far as possible, in the same institution where the deceased employee was serving at the time of his death. If there is no vacancy in non- teaching cadre in such institution, the appointment shall be made in another recognised aided institution of the district where there is such vacancy :

Provided that if such vacancy for the time being does not exist in any recognised aided institution of the district concerned, the appointment shall be made against a supernumerary post in the institution where the deceased was working at the time of his death. Such supernumerary post shall be deemed to have been created for this purpose and be continued till a vacancy becomes available in that institution or in any other recognised aided institution in the district and in such case the service rendered by the incumbent of the supernumerary post shall be counted for the fixation of pay and retirement benefits.

107 : The appointment letter shall be issued under intimation to the Inspector by the recognised aided institution to which the application for issuing appointment letter is sent by the Inspector within a period of one month from the date of receipt of the application."

      The respondents in these appeals are dependents of persons who were employed as teaching/non-teaching staff in non-government recognised aided schools/intermediates colleges in Uttar Pradesh. The said employees died in harness. Applications were submitted by the respondents in these appeals, who are the dependents of deceased employees, before the District Inspector of Schools for giving appointment on compassionate grounds. In most of these appeals the District Inspector of School passed order for their being appointed on a Class IV post and on that basis orders of appointment were issued.

WRIT PETITIONS TO THE HIGH COURT:

      After their appointment on a class IV post, they filed writ petitions in the Allahabad High Court seeking appropriate writ direction/order for being appointed on a Class III post on the ground that they possess the requisite qualifications for appointment on class III post of Clerk.

      In Civil Appeal arising out of S.L.P. (C) No. 1186 of 1994 the District Inspector of Schools had offered a class IV post to the applicant and dissatisfied with the said offer he filed a writ petition in the Allahabad High Court for a direction for being appointed on a class III post of Clerk.

       In Civil Appeal arising out of the S.L.P.(C) No. 2734 of 1993 no decision was taken by the District Inspector of Schools on the application of the applicant and he filed writ petition in the Allahabad High Court wherein he sought a direction from the High Court directing the District Inspector of Schools to appoint him on the post of Clerk.

All the writ petitions were allowed by the High Court by the impugned judgments. In case where appointment had been made on a class IV post, the High Court has quashed such orders and has directed that the appointment of the applicant be made on a class III post provided he possesses the necessary qualifications for such post and that such appointment may be made in any institutions in the district and if there is no such vacancy, then a supernumerary post should be created.

       In the other two appeals where the appointment had not been made, the High Court while allowing the writ petitions has directed that the appointment be made on a class III post provided the applicant possesses the qualifications for the post and that if no post is available in any institution in the district a supernumerary post should be created for that purpose.

SPECIAL LEAVE PETITIONS TO THE SUPREME COURT :

      Being aggrieved by the said judgments of the High Court, the State filed the aforestated special leave petitions which on grant of special leave, became civil appeals.

The Counsel for the appellant urged the following contentions:      

(i) that the aforesaid directions given by the High Court regarding the appointment of dependents of teaching/non- teaching staff in non-government recognised aided schools and colleges on a class III post and fo

(ii) that in the State of U.P. about 4500 non-government recognised aided institutions are running and there are about 1,25,000 teaching and non-teaching employees, out of which the number of clerks in an institution is between 1 to 3.

(iii) that based on the mortality rate of 1% of the number of persons dying a harness in each year would come to 1250 approximately.

(iv) that the number of vacancies occurring on the post of clerk due to retirement and death (at the rate of 2% and 1% respectively) comes to 330 in a year.

The learned counsel has invited the attention of the Hon’ble Apex Court to the conditions of the services as contained in clauses 2 (2) of Chapter 3 of the Regulations made under Section 16G of the U.P. Intermediate Act, which provides that fifty per cent by promotion amongst the working Clerk and Class IV employees in the Institution

(v) that out of 330 vacancies on the post of Clerk occurring in a year on account of retirement and death, 165 will have to be set apart for promotion of working Clerk and Class IV employees and only 165 posts would be available for and non-teaching staff on compassionate grounds can be made only on these posts which can be filled by direct recruitment and as a result all the vacancies occurring in a year would be taken by such dependents of deceased teaching/non-teaching staff dying in harness.

(vi) that since supernumerary posts would have to be created for making such appointment, no post would ever be available for direct recruitment of other persons who are eligible for appointment.

(vii) that during the pendency of these matters in this Court, Regulations 101, 103, 104, 106 and 107 have been amended and Regulation 105A has been inserted in the Regulations by notification dated February 2, 1995.

(viii) that in Regulation 106, as amended, it has been prescribed that if vacancy in non-teaching cadre for the time being does not exist in any recognised aided institution of the district concerned, then the appointment shall be made against a supernumerary non-teaching post of class IV category and such supernumerary post shall be deemed to have been created for his purpose and be continued till a vacancy becomes available in that institution or in any other recognised aided institution of the district and in such case, the service rendered by the incumbent of the supernumerary post shall be counted for fixation of pay and retirement benefits.

(ix) that as a result of the amendment made by notification dated February 2, 1995, in the event of a non-teaching post being not available, the appointment of the dependent of a deceased member of the teaching/non-teaching staff dying in harness, can be made only on a Class IV post by creating a supernumerary post.

THE QUESTION FOR CONSIDERATION:

      On perusal of the submissions as aforestated, the Hon’ble Supreme Court framed the following issue for adjudication:

 Whether in the absence of the amendment that was made in the Regulations vide notification dated February 2,1995, it was incumbent for the authorities to appoint the dependents of a member of the teaching/non-teaching staff in a non-government recognised aided institution dying in harness on a class III post even though no post was available for such appointment in the institution in which the deceased employee was employed or any other institution in the district and for that purpose a supernumerary post in Class III post was required to be created ?

THE VIEW TAKEN BY THE HIGH COURT:

       In the impugned judgments the High Court had taken the view that under the regulations as they stood prior to amendment by notification dated February 2, 1995 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-government aided institution dying in harness. The said view of the High Court had been assailed by the appellants in the appeals.

THE OBJECT OF COMPASSIONATE APPOINTMENT:

      The Hon’ble Supreme Court stated 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 some 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 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 of 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. 

REFERENCE TO CASE-LAWS:

(i) Umesh Kumar Nagpal vrs. State of Haryana, 1994 (4) SCC 138 : In this case, the Hon’ble Apex 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 :-

"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, relief against destitution. No other posts are expected or required to b e 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."

 (ii) Smt. Sushma Gosain and Others vrs. Union of India and Others,1989 (4) SCC 468: In this case, it has been observed that said judgment ( Umesh Kumar Nagpal) `has been misinterpreted to the point of distortion' and that it does not justify compassionate employment as a matter of course.

ON THE CONSTRUCTION OF THE REGULATION BY THE HIGH COURT:

      The Hon’ble Apex Court stated that 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 than the dependents of deceased employees would be deprived of their right of being considered for such appointment under the rules. The Honble Apex Court stated that 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 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. It 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 appointed on a class III post and for creation of supernumerary post in class III for that purpose.

THE CONCLUSION :

      At the light of what have been mentioned hereinabove, the Hon’ble Supreme court stated that it is 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 then a supernumerary class III post be created for the purpose of such appointment.

THE VERDICT

1.The appeals were allowed,

2.The impugned judgments of the High Court were set aside and

3.The writ petitions of the respondents-applicants were 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.

4.The order 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, were 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.

5.In Appeals, arising out of S.L.P. (C) No. 2734 of 1993 the concerned District Inspector of Schools was directed to 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 cost.