JUDGMENT Sudhir Narain, J.
1. The short question involved in this Special Appeal is whether a person, who has already been granted benefit of dying in harness rule at the time of appointment, can be again given the benefit of the same rule at the time of promotion.
2, The facts in brief are that one Ganga Narain Shukla was Assistant Teacher in L.T. Grade in Ganesh Shankar Vidyarthi Inter College, Kanpur (hereinafter referred to as the 'College')- He died in harness on July 19, 1985. His widow submitted an application in the year 1988 for giving employment in the college to her son, Mahendra Kumar Shukla, on compassionate ground. Mahendra Kumar Shukla, respondent No. 1, also submitted an application on April 19, 1989 before the Manager of the college for giving employment in the college alleging that his father died on July 19, 1985 in harness. He had passed Intermediate examination. A copy of the said application has been filed as Annexure-2 to the writ petition. On this application the Principal made query from him by letter dated April 24, 1989 as to on which post he wanted to be appointed. On April 29, 1989 the respondent stated that he should be appointed to some non-teaching post. He, however, did not disclose the post. The Principal again wrote a letter to him on May 1, 1989 intimating that Class IV employee's post was vacant and on that post he could be given appointment. The respondent agreed to it and he was issued appointment letter for the post of Class IV employee in the college on May 2, 1989 and he joined the said post on May 6, 1989 and is still working there in the same capacity.
3. The Committee of Management of the college advertised one post of clerk-cum-steno typist on June 16, 1992 requiring all the desiring candidates to appear at the interview on June 28, 1992. The respondent submitted an application before the Committee of Management stating that he had passed intermediate examination and was entitled to be appointed as a clerk. His father had died in harness and he should have been appointed as a clerk but he was appointed as a Class IV employee and as a matter of right he is entitled to be promoted to the post of clerk. The Committee of Management of the college did not accede to his request and proceeded to make appointment by selection. One Prabhat Kumar Misra was selected and he was issued appointment letter. The respondent made a representation to the District Inspector of Schools, Kanpur claiming his right for appointment as a clerk. The District Inspector of Schools rejected his claim taking the view that once the respondent had availed the benefit of dying in harness rule by getting appointment as a Class IV employee, he cannot be promoted to the post of clerk, claiming again the benefit of same rule. The respondent filed writ petition in this Court and the learned Single Judge has allowed the writ petition taking the view that the respondent was qualified for being appointed as a clerk and as at the time of his appointment, no post of clerk was available and after the said post having fallen vacant, the respondent was entitled to be appointed to the said post. The Committee of Management has preferred this appeal against this judgment.
4. Learned Judge took the view that in case at the time of appointment the family member of the deceased employee dying in harness, is not given an employment according to his qualification, he is entitled to be given promotion to a higher post according to his qualification when such higher post falls vacant. Emphasis was that the appointment was taken by the candidate at a time when there was no vacancy of a suitable post according to his qualifications.
5. This has to be examined in relation to the rules known as U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules 1974 (hereinafter referred to as the Rules). This rule has been made applicable to all Educational institutions of Government by the Intermediate Educations Act 1921 vide Government Order No. 6643/15-7-1 (1978)-1981 dated September 23, 1981. The rules provide the manner of recruitment of dependents of Government Servants dying in harness. Rule 5 provides for recruitment of dependents of the deceased Government Servants and Rules 7 and 8 provide the procedure for making employment. They are reproduced as under:
"5. Recruitment of a member of the family of the deceased - In case a Government servant dies in harness after the commencement of these rules, one member of his family who is not already employed in the Central Government or State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government service which is not within the purview of the State Public Service Commission in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualified for the Government service. Such employment should be given without delay, and as far as possible in the same Department in which the deceased Government servant was employed prior to his death.
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 of the entire family particularly the widow and the minor members thereof.
8. Relaxation from age and other requirements - (1) The candidate seeking appointment under these rules must not be less than 18 years at the time of appointment.
(2) The procedural requirements for selection, such as written test or interview by a selection committee or any other authority, shall be dispensed with, but 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 standards of work and efficiency expected on the post.
(3) An appointment under these rules shall be made against an existing vacancy only."
It is clear from reading of the Rules that appointment is made on compassionate ground. The person who is to be appointed is not to face selection for appointment for a post. The post may be a selection post or it is to be filled by promotion. 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. The purpose of appointment on compassionate ground was indicated by the Supreme Court in Sushma Gosain and Ors. v. Union of India and Ors., (1990-I-LLJ-169) which reads as under (p. 170):
"We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant."
The principle underlying appointment under dying in harness rule was considered by a Division Bench of this Court in Harbans Sahai Sri-vastava v. State of U.P. and Ors. (1991-11-LLJ-287). The employee had died in harness in the year 1973. His son submitted application before the authorities concerned for appointment in the year 1985 claiming appointment under the Rules stating that he had obtained degree of B.A. in the year 1983. His application was rejected. The Court upheld the order. It was held that the intention of the Rules was to provide assistance to the family of the deceased who was a Government servant and had died in harness. It is at that time the help is required by the family members of the deceased employee. The claim of appointment after expiry of nine years was too belated. If the applicant could not be appointed, his mother could have sought appointment under the Rules and she could have been offered suitable post according to her qualification, but she did not apply for appointment.
6. On the death of an employee, dying in harness, a vacancy occurs to the post on which he was working. There is no difficulty for making appointment on the said post in case any family member of the deceased is qualified for appointment to the said post. The difficulty arises when no suitable post, according to qualifications and suitability of such dependent, is available at the time of death of the employee who died in harness. In that situation there are two courses open. Either a post is created or such other post, which may be available, is offered and it is accepted by the family member of the deceased employee.
7. Sub-rule (iii) of Rule 8 of the Rules provides that an appointment under the Rules shall be made against an existing vacancy. The rules do not provide for creation of a post. The Government is, however, entitled to create such post for employment to a family member of the deceased employee but the appointment cannot be made till such post is created.
8. The vacancy of any existing post may be offered to any member of the deceased* s family. In the family the members who may be entitled to appointment may have different qualifications, the existing post shall be offered and can be accepted by such member who is qualified and suitable to that post. If there are two broth-ers, one is highly qualified and the other is not qualified to a higher post, the other may be offered a suitable post. It is an existing vacancy and a dependent can be easily accommodated. It would not be then necessary to create a new post for another son of the deceased employee who has a higher qualification.
9. As regards the creation of post, the Committee of Management of any institution has no power to create any post. It is the Director of Education or such other authority, to whom the power has been delegated, can create post after obtaining sanction from the State Government. The creation of post may be temporary for such time till a regular vacancy occurs for a particular kind of post. The creation of post will, however, depend if none of the family member can be offered any post immediately on the death of the deceased employee in any institution. The Rules do not confine appointment to any particular institution.
10. The State Government has framed Rules by G.O. dated July 30, 1992 regarding appointment of the dependents of deceased employee dying in harness on compassionate ground in educational institutions governed by the Intermediate Education Act, 1921. Respondent No. 1 had already been appointed in the year 1989 under the Rules 1974.
11. In Sushma Gosain 's case (supra) Sushma Gosain in November 1992 sought appointment as Lower Division Clerk on the death of her husband in October 1982, who was working as Store-Keeper in the Department of Director General Border Road (DGBR). She had a right to have her case considered for appointment on compassionate ground. On January 25, 1985 Central Government issued a notification banning the appointment of ladies in the establishment. Her appointment was not made prior to 1985 and subsequently the Department relied upon a notification issued on January 25, 1985. In that context the Supreme Court directed that if there is no suitable post for appointment, supernumerary post should be created to accommodate her.
12. The offer of appointment to a post shall be made to a candidate who is suitable for appointment to such post. Under Rule 7 the employer shall decide about "suitability of the person for giving employment''. A person may be having educational qualification still he may not be suitable for a particular post. The suitability for a job depends upon various factors. The employer giving employment shall take into consideration all these factors. Sub-rule (2) of Rule 8 of the Rules-provides 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 for the post. If a family member is offered a particular post and he accepts the post he is fully aware of the nature of the post. If he accepts the appointment he cannot subsequently turn and say that his appointment was not in accordance with Rules. The appointment to a post is not given only because a person is qualified to that post. For a post qualification may be intermediate but when selection is to be made, applications are invited through advertisement, candidates apply who may be having Post Graduate qualification. A candidate having Post Graduate qualification may apply for a post of a clerk, the qualification for which may be only Intermediate. The qualification is taken into consideration as eligibility for appointment to a post.
13. Once a member of the family accepts the appointment to a post offered to him, he cannot subsequently, after working for years, claim a right of promotion to higher post on the ground that he possessed qualification for appointment to a higher post but he was given appointment to a lower post. The appointment to a post was given to such person under the Rules and the Rules do not envisage further appointment to such person on a higher post when another "vacancy to higher post occurs.
14. Learned counsel for the respondent placed reliance upon the decision in Rajesh Singh v. Director of Education Allahabad and Ors. (1991 (1) UPLBEC. 345). On the death of the father on August 22, 1983, who was a teacher in the college, his son submitted an application for appointment as a clerk under the Dying in Harness Rules. The District Inspector of Schools passed order on December 21, 1983 for creating a post of a clerk. The son, however, accepted the post of peon and subsequently when a post of clerk fell vacant, he claimed appointment to the said post and made a representation to the Deputy Director of Education for appointment to that post. The representation was rejected. It was held that as the post of clerk was already existing and as he was qualified to the said post and entitled to be appointed under the dying in harness rules, he should have been appointed to the said post. The Court was not considering the question as to whether a person who had accepted appointment and continued to work on that post was entitled to promotion on the basis that he was qualified to be appointed to a higher post at the time when he had accepted a particular post under the Rules.
15. Learned counsel for the respondents placed reliance upon the decision in Writ Petition No. Nil of 1993, Umesh Singh Kushwaha v. 1District Inspector of Schools, Kanpur Dehat and Ors.. The case was decided relying upon the decision of Rakesh Rai and held that in case at the time of appointment a family member of the deceased employee dying in harness is not given an employment according to his qualification, he is entitled to be given appointment to a higher post according to his qualification when it falls vacant.
16. The Rules do not envisage appointment for a second time or promotion to a higher post merely on the ground that the post which was offered to such family member was not according to his qualification. In case he accepts appointment without any condition or reservation, he cannot subsequently claim that his original appointment was not in accordance with law. The post which he had accepted cannot be treated as unsuitable to him at a later stage. The -mere fact that he was qualified to be appointed to some higher post is itself not a criteria for holding that the post which he had accepted was not suitable. The appointment is not made only on the basis of qualification. A person having: accepted appointment and working to a particular post cannot claim further right of appointment under the same Rules on the ground that he should have been appointed to some higher post on the basis of his qualification and the appointment which was offered to him was not suitable to him.
17. If a person is qualified to a particular post and applies for appointment, he will be considered for appointment after due selection in accordance with law. An employee, who has already been appointed, is not denied opportunity of being selected. In educational institutions appointment has to be made for selection post on the basis of selection, so that the best candidate may be appointed to such post. The working of the institution depends upon the person who works on such post.
18. The father of the respondent died on July 19, 1985. At that time his widow did not apply for appointment. The respondent was aged about 17 years. He filed application on April 19, 1989 stating that he had passed intermediate examination ahd should be given some employment. He did not disclose the name of the post. The Principal asked him to indicate the post and he only indicated that he may be given some non-teaching post. The Principal made it clear that only Class IV employee's post was vacant. The respondent agreed to accept such post and accordingly appointment letter was issued and he was given employment. He continued to work for more than 3 years and when the vacancy for the post of clerk was advertised in the newspaper, he claimed that right to be appointed on the said post on the ground that in the year 1989 he had passed Intermediate examination and the qualification for the post of clerk was Intermediate and he should have been appointed to that post. It was nowhere stated that he had taken appointment in the year 1989 on the basis of certain conditions. He was appointed on compassionate ground in the year 1989. He could not subsequently claim the right of appointment to the post of clerk after expiry of three years when such post of clerk was advertised.
19. Learned counsel for the appellant urged that the respondent has only passed Intermediate examination. The post which was advertised was for Clerk-cum-Typist. The respondent does not fulfill the qualification for appointment to the post for which advertisement has been made. It is not necessary to decide this controversy on the view taken above by us.
20. Learned counsel for the respondent did not urge any other point.
21. In the result the appeal is allowed and the impugned judgment and order of the learned Single Judge dated April 29, 1993 is set aside. The writ petition is dismissed. The parties shall however, bear their own costs throughout.