JUDGMENT A.K. Yog, J.
1. Chandra Bhan Singh Rathore, petitioner, filed this petition in the year 1993 with the following prayer :
(a) to issue a writ order or direction in the nature of mandamus directing the respondents to appoint the petitioner on the class IIIrd Post in the Kunwar Ram Chandra Singh Girls Inter College, Mainpuri, the institution on in which the mother of the petitioner was working as a Assistant Teacher in J.T.C. Grade;
(b) to issue any other writ order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case;
(c) to award the cost of the petitions of the petitioner.
2. The facts of the case are that petitioner secured Bachelor Degree (in Arts) in the year 1971. Mother of the petitioner Smt. Rami Bai Rathore was working as Assistant Teacher (J.T.C. Grade in educational institution Kunwar Ram Chandra Singh Girls Inter College, Mainpuri. It is not stated in the petition whether said institution is a 'recognised', or 'Government Aided' institution. It is, therefore, not clear from the record whether U.P. Intermediate Education Act, 1921 is applicable to the institution in question. The said Smt. Rami Bai Rathore died in harness on2nd January, 1984.
3. There is nothing on record to show as to what happened after her death in January, 1984 till 15th February, 1993 nor one can find as to what the petitioner (son of said deceased employee--Smt. Rami Bai Rathore) was doing after completing his graduation in 1971 (para 4 of the Petition) and immediately on the death of his mother in the year 1984. Therefore, it cannot be ascertained, on the basis of the record available on date, whether petitioner was gainfully employed when his mother died in January, 1984.
4. It is alleged that petitioner filed an application (Annexure 2 to the Writ Petition) for compassionate appointment on 16th February, 1993 i.e., after about 9 years of lapse after the death of his mother.
5. Application of the petitioner was considered under relevant Regulations 101 to 107 of the regulations framed under the Act. the composite order making compassionate appointment on compassionate ground on the pretext of his mother 'dying in harness' was issued on April 22, 1993 (Annexure 5 to the Writ Petition).
6. Writ was filed on 8-12-1993. No interim order was passed in favour of the petitioner. Standing Counsel, representing Respondent Nos. 1 and 3, was however, directed to file Counter-Affidavit vide Court order dated 8-12-1993. Counter-affidavit has been filed on behalf of Respondent Nos. 1 and 3. Respondent No. 2 has not been issued notice or served while case was pending 'Admission'.
7. I have heard learned Counsel for the petitioner as well as learned Standing Counsel at admission stage.
8. Learned Counsel for the petitioner has made two submissions:
First submission on the behalf of the petitioner is that one Neeraj Dixit has been offered Class III post but petitioner, who is similarly and identically situated, discriminated without basis or on valid ground. Offer on a Class IV post to the petitioner is arbitrary (writ para 10).
9. Petitioner has failed to give full details regarding his qualification nor he has impleaded said as Neeraj Dixit as Respondent in the present petition. The averments relating to Neeraj Dixit cannot be relied upon and gone into in his absence. Petitioner has also not given necessary details, for perusal of this Court, to specify that the case of Neeraj Dixit is identical and similar to that of the petitioner. Learned Counsel for the petitioner has fairly conceded that requisite pleadings were wanting.
10. Second submission on behalf of the petitioner is that he ought to have been offered Class III post in view of the judgment and order dated 14th May, 1993 passed by Hon'ble R.B. Malhotra, J. in Writ Petition No. Nil of 1993, Sri Brijesh Kumar Dwivedi v. The Manager. Sri Nehru Smarak Inter College, Saman, District Mainpuri and others (Annexure 4 to the Writ Petition).
11. Aforementioned case of Brijesh Kumar Dwivedi is distinguishable on facts. Second para of the judgment shows that Brijesh Kumar Dwivedi had claimed appointment on compassionate ground within six weeks of the death of his father. In the instant case application, a noted above, was filed after about nine years and it was highly belated for which there is no explanation. Compassionate appointment after about 9 years is not warranted under law.
12. Moreover, the ratio laid down in the aforesaid case of Brijesh Kumar Dwivedi (supra), does not hold good after regulations have been amended and substituted by Government Order dated 2-2-1995.
13. Regulation 106 now clearly provides that supernumerary post shall be in Class IV only. Petitioner cannot claim creation of supernumerary post for Class III, as also held in 1998 (3) ESC 1877, Manish Mishra v. State of U.P. and others, (1998) 2 UPLBEC 1310 (SC), Director of Education (Secondary) and another v. Pushpendra Kumar and others etc.
14. Learned Counsel for the petitioner has placed reliance on the decision reported in 1997 AWC (Supp) 701, Pramod Kumar Shukla v. State of U.P. and others. This case is also clearly distinguishable on fact and need not be referred.
15. Learned Counsel for the petitioner then referred to (1994) 1 UPLBEC 12, Manager, Committee of Management, Ganesh Shankar Vidyarthi Inter College, Kanpur v. Mahendra Kumar Shukla and others, (DB) paragraphs 8 to 12. The said judgment has last its efficacy in view of subsequent amendment in the regulations and also the guidelines and criterion laid down by the Apex Court on the subject.
16. Division Bench in paragraphs 6 and 7 of the aforesaid judgment Manager Committee of Management, Ganesh Shankar Vidyarthi Inter College (supra), while referring to earlier decisions, AIR 1989 SC 1976, Sushma Gosain and others v. Union of India and others and (1990) 1 UPLBEC 220, Harbans Sahai Srivastava v. State of U.P. and others, observed--"The vacancy to a post shall be filled by giving appointment to a person who is entitled to be appointed under Rules in preference to others provided he is qualified and suitable for appointment to such a post. The Rules provide relief to a family whose bread earner died in harness. The appointment has to be made immediately on the death of the employee.............."
17. In the case of Harbans Sahai Srivastava (supra), it was observed that intention of the Rules was to provide assistance to the family of the deceased who was Government servant and had died in harness. The Court observed that claim of appointment after expiry of nine years was too belated.
18. Learned Counsel for the petitioner, in the last, drew notice of this Court that petitioner did not join Class IV post under impugned order as he would have forfeited his claim for Class III post--as observed in para 15 of aforementioned case of Manager, Committee of Management, Ganesh Shankar Vidyarthi Inter College (supra).
19. The aforesaid case of Manager, Committee of Management, Ganesh Shankar Vidyarthi Inter College (supra), is distinguishable on facts inasmuch as in that case offer was accepted and benefit availed without protest and Court was of opinion that chapter once closes would not be re-opened so as to provide another opportunity to improve prospects in future.
Contention of the petitioner is, thus, misplaced and misconceived. If the petitioner had availed the offer of Class IV post, it would have shown bona fide. By accepting the offer of class IV Post opting to wait for better claim shows that he was not in distress. This inference is fully supported from the fact that petitioner did not file application for compassionate ground for about nine years.
20. Another aspect of the matter demonstrates that submission of the petitioner, on this score, has no force. Petitioner by accepting offer of Class IV post, could not be cornered on the ground of forfeiture of his right to make claim for Class III post if he would have submitted his protest/claim immediately before or after joining Class IV post. It would have established his bona fides also.
21. Learned Counsel for the petitioner has failed to cite any decision contrary to the above to help this Court to take a different view on this aspect.
22. It will not be out place to mention that in para 7 of the counter-affidavit contesting Respondents have taken up categorical stand that a Committee was constituted for judging eligibility and suitability with reference to individual's competence who had applied for compassionate appointment. The said Committee found that petitioner was eligible and suitable for Class IV post only.
23. Stand taken by the Respondents in para 7 of the counter-affidavit is fully justified in view of the observations of Division Bench of this Court in paras 6 and 14 of its judgment in Manager, Committee of Management, Ganesh Shanker Vidyarthi Inter College (supra). Also there is nothing on record to show that the proceedings of Selection Committee are vitiated on any score.
24. In view of the above, petitioner was rightly not offered class III post. Impugned order cannot be interfered with on this ground. It may be stated that Rejoinder Affidavit is not on record but a true copy of it has been placed by the learned Counsel for the petitioner, which may be taken on record. There is nothing to dislodge the defence of the Respondents para 7 of the counter-affidavit.
25. This Court, while hearing cases of the above nature, realised that opportunity of compassionate appointment is being generally misused or exploited, and thereby frustrating the solemn object of Relevant Rules/Regulations or Government Orders.
26. It is never too late. Call of the hour is that compassionate appointment should be made without delay as observed by Supreme Court in the case of Director of Education (Secondary) (supra). Provision must be made prescribing grace period during which compassionate appointment may be permissible. It should be categorically provided that no appointment on the ground of 'Dying in Harness' will be made after certain period i. e., to say within two or three years of the death of an incumbent in service.
27. Learned Standing Counsel has not been able to place before this Court-Government Order or provisions to show that the Government or the Competent Authority has taken care to frame relevant rules to ensure fulfillment of the object for which compassionate appointment is contemplated.
28. Further, the regulations under the Act contain no provision similar to that of Rule 7 of Dying in Harness Rules as are quoted in the aforesaid case of Manager, Committee of Management, Ganesh Shankar Vidyarthi Inter College (supra).
29. For ready reference Rule 7, Dying in Harness Rules is re-produced below : "Rule 7. Procedure when more than one member of the family seeks employment.--If more than one member of the family of the deceased Government Servant seeks employment under these rules, the Head of Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interests and the welfare the entire family particularly the widow and the minor members thereof."
30. It will be appropriate if similar provision is incorporated in the Regulations framed under U.P. Intermediate Education Act, 1921 and a condition is imposed making it obligatory upon a beneficiary to give an undertaking/bond to maintain other dependents of family members like widow and minor children. It should be further provided in the Regulations that in case such a person fails to discharge his obligation to maintain dependent members of the family after getting compassionate appointment, his appointment shall be liable to be cancelled. Finer aspects and other modalities may be deliberated by the concerned authorities while framing or amending Rules and the Regulations.
31. A certified copy of this order may be sent before 15th December, 1999 to the Chief Secretary, Government of U.P. Lucknow, Secretary, Education (Higher), Secretary (Second Education). Secretary Law/Legal Remembrancer and Director of Education (Secondary) for information particularly paragraphs 25 to 30 and for taking suitable steps in the light of the above.
32. Writ Petition fails and is dismissed accordingly. No order as to costs.