(By Justice Ferdino Inacio Rebello, C.J.) This is an appeal against an interim order dated 07.10.2010 by which a learned Judge of this Court has stayed the operation of order dated 10th August, 2010 passed by the Secretary, U.P. Secondary Education Service Selection Board, Allahabad. Learned counsel for the appellant, however, contends that the effect of the stay granted virtually ousts the right of the appellant herein from being appointed to the post and, therefore, the appeal along with the writ petition ought to be heard finally.
By consent of the counsel who are present and as no adverse order would be passed against respondent no.1 as also respondent no.6 after hearing the matter, we propose to dispose of this appeal as also the writ petition finally at this stage.
A few facts are necessary for determining the controversy involved this appeal. The case of respondent no.1 is that he was appointed on 30.07.2008 under the provisions of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the ''Rules 1974') in the institution. The vacancy in the said School had arisen on 30.06.2008 and requisition for filling up the said vacancy was, however, sent on 05.05.2008, i.e. before the vacancy had arisen. The District Inspector of Schools, vide letter dated 30.07.2008 itself had informed the U.P. Secondary Education Service Selection Board, Allahabad, (hereinafter referred to as the ''Board') not to advertise and fill up the said vacancy in the school as the same had been filled up under the Rules 1974. In spite of that, the Board proceeded to select candidate against the said post and by order dated 24.09.2010, the Secretary of the Board directed the District Inspector of Schools to ensure that the appellant be allowed to join in the school in spite of the fact that there was no vacancy.
On behalf of respondent no.1, it was contended that the appellant can be adjusted in some other school in view of the provisions of Rule 13 (5) of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the ''Rules 1998'). It was submitted before the learned Single Judge that equity and law both are in favour of respondent no.1 as he was appointed against a substantive vacancy and his services cannot be terminated. The learned Single Judge, finding that the equity and law both are in favour of respondent no.1, was pleased to stay the operation of order dated 10th August, 2010 by which the Secretary, U.P. Secondary Education Services Selection Board, Allahabad-respondent no.5, had directed that the appellant be allowed to join the post.
It is true that neither the appellant nor respondent no.1 have filed their reply. The question, however, is purely of interpretation of the provisions of the Rules and Regulations and to decide the case on that basis. Since the parties have agreed that the matter be heard finally, we are hearing the matter for final disposal.
At the outset, we may reproduce Rule 13 (5) of the Rules 1998, which reads as under:-
"13. Intimation of names of selected candidates.- (1)... .. .......... ..........
(5) Where a candidate selected by the Board could not join in an allocated institution due to non-availability of vacancy or for any other reason, the District Inspector of Schools shall recommend to the Board for the adjustment of such candidate against any other vacancy notified to the Board in any other institution. On receipt of the recommendation of the District Inspector of Schools the Board shall allocate such candidate to another institution in a vacancy notified to the Board."
Thus, on a literal interpretation of the said Rule, it would be clear that if a candidate selected by the Board could not join in the allocated institution due to non-availability of vacancy or for any other reason, the District Inspector of Schools shall recommend to the Board for adjustment of such candidate against any other vacancy notified to the Board in any other institution and on receipt of such recommendation of the District Inspector of Schools, the Board shall allocate such candidate to another institution against a vacancy notified to the Board. Regulations have also been framed under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the ''Act 1921'). Regulations 103 to 107 of Chapter III of the said Regulations deal with appointment on compassionate basis. We may gainfully reproduce Regulation 103 of the Regulations, which reads as under:-
"103. Notwithstanding anything contained in these regulations, where any teacher or employee of ministerial grade of any recognized, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less than eighteen years in age, can be appointed on the post of teacher in trained graduate grade or on any ministerial post, if he possesses prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment :
Provided that anything contained in this regulation would not apply to any recognized aided institution established and administered by any minority class.
Explanation.--For the purpose of this regulation "member of the family" means widow or widower, son, unmarried or widowed daughter of the deceased employee.
Note.--This regulation and Regulations 104 to 107 would apply in relation to those employees who have died on or after 1 January, 1981."
Thus, a conjoint reading of the Regulation and the Rule would show that where any teacher or employee of ministerial grade of any recognized, aided institution, who is appointed according to the prescribed procedure, dies during service period, then one member of his family, who is not less than eighteen years in age, can be appointed on the post of teacher in trained graduate grade or on any ministerial post, if such member possesses prescribed academic qualification, training eligibility, if any, and is otherwise fit for appointment. The member of the family is also defined in the Explanation contained in the proviso to Regulation 103 of the Regulations framed under the Act 1921. If the vacancy, which has been notified, is filled in on compassionate basis and a candidate against the said notified vacancy has been selected by the Board but in view of appointment on compassionate basis could not join, then such candidate can be appointed against any other vacancy notified to the Board in any other institution. In other words, if there is no vacancy, the Board then can appoint the selected candidate against any other vacancy. Such a construction of Rule 13 (5) of the Rules 1998, in our opinion, would be a harmonious construction, which would give effect to the Rule for compassionate appointment provided by the Regulations and at the same time not denying a candidate his right to appointment to a post, but against some other post in another institution which has been notified.
Learned counsel has, however, invited our attention to a judgment of a learned Single Judge of this Court in Civil Misc. Writ Petition No. 40377 of 2008, Raja Ram Vs. State of U.P. & Ors. decided 30.11.2009 along with another petition. On the basis of this judgment, it is sought to be contended that once the vacancy is notified to the Board, no appointment can be made against that post on compassionate basis. Apart from compassionate appointment, that judgment also covers recruitment by various other methods. In the present case, we are not considering other types of recruitment but we have confined ourselves only to the issue of compassionate appointment. In the case of Raja Ram (supra), the Board had advertised 399 vacancies of teachers in trained graduate grade in the subject of Social Science for different recognized and aided High School and Intermediate institutions. The petitioner therein and other candidates applied and appeared in the written examination. After the results of the written examination were declared and before the interview could take place, a writ petition being Writ Petition No. 43013 of 2006 was filed by one Dr. Ramesh Chandra Pandey and others, complaining large scale illegalities and irregularities in the written examinations. The Court, after hearing the parties, was pleased to quash the selections and issued various directions. That judgment was not challenged. Pursuant to the said directions, the Board got the answer sheets of the candidates re-evaluated and declared fresh results where under only 620 candidates in the ratio of five candidates for one post as against 128 vacancies only were held eligible for being called for interview. Apprehending that the remaining vacancies were filled up by resorting to Rule 13 (5) of the Rules 1998, Writ Petition No. 40377 was filed with a prayer to declare Rule 13 (5) of the Rules ultra vires and to declare the result of the written examination in respect of all 399 vacancies and to complete the process of selection accordingly. Thereafter, it appears that various directions were issued by the Court pursuant to which it was found that out of the available vacancies, 11 posts have been filled in by compassionate appointment under the Rules 1974 and various other posts have been filled in by various other methods. The Court, then, considering the matter before it, was pleased to issue notices to all the candidates and thereafter framed various issues for consideration of which Issue No. (c) reads as under:-
"(c) As to whether a compassionate appointment could be made against the vacancies which were subject matter of Advertisement No.1 of 2005, specifically when the application/cause for compassionate appointment is subsequent to Advertisement No.1 of 2005."
After considering various contentions and referring to the various judgments and Rule 13 (5) of the Rules 1998, the Court was pleased to hold that Rule 13 (5) of the Rules 1998 was arbitrary and in order to bring the Rule in harmony with the provisions of the Act and Article 14 of the Constitution, held that the Board can recommend a selected candidate to any other institution only against a vacancy which was the subject matter of the same advertisement against which the candidates had been selected. The Court, then, proceeded to hold that the candidates selected in pursuance of an earlier advertisement cannot be adjusted against any vacancy, which is the subject matter of another advertisement and then proceeded to observe that the Board cannot be permitted to recommend a candidate to an institution the vacancy whereof had been notified but was not advertised/offered to the candidates during interview.
Then, coming to the issue of compassionate appointment, the Court observed as under:-
"So far as the issue of compassionate appointment on the advertised posts of assistant teacher in the facts of the present case is concerned, this Court finds that the vacancies were advertised as early as in the year 2005. It is not the case of any of the parties that any application for compassionate appointment, on the date the requisition was sent, was pending. There is no right in any compassionate applicant to be appointed against any particular post. With reference to the number of vacancies requisitioned reservation has to be applied and it is on that basis the entire procedure for the selection is initiated by the Selection Board. The process so initiated cannot be hampered by permitting the advertised vacancies being reduced by offering compassionate appointment, as the same may result in frustration of the entire reservation calculated as also the selections. This Court holds that once the vacancy has been requisitioned by the institution for direct recruitment and it has been advertised under the provisions of the 1982 Act, compassionate appointment against advertised posts stands excluded on the same principle as that applies to the case of transfer and for the same reasons this Court holds that no compassionate appointment against a post can be restored once the vacancy has been requisitioned for direct recruitment and advertised by the Selection Board."
Thus, the Court in that case proceeded on the footing that no application for compassionate appointment on the date the requisition was sent was pending. Further, the process initiated cannot be hampered by permitting the advertised vacancies being reduced by offering compassionate appointment. Once vacancies have been requisitioned by the institution for direct recruitment and have been advertised, compassionate appointment against such posts is excluded. At the same time, the Court noted the judgment in Secretary, A.P. Public Service Commission Vs. B. Swapana & Ors., 2005 (2) ESC 247, wherein the Supreme Court noted that ''selection once initiated has to be completed with reference to the statutory provisions, which were applicable on the date of initiation of the process of selection and any subsequent amendment in the statutory provisions will not affect the process so initiated. This judgment, in our opinion, at the highest can be applied in those cases where during the pendency of the recruitment process, the Rules are amended and the Appointing Authority and/or the Board proceeded to select the candidates not based on the Rules which existed on the date of advertisement but on the basis of subsequent Rules. In the instant case, the Rules were already in existence and were in force when respondent no.5 appointed the respondent no.1 on compassionate basis.
We may gainfully refer to the judgment of the Supreme Court in the case of Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors., (1998) 5 SCC 192. This judgment was not considered by the learned Judge in the case of Raja Ram (supra). In this case, the issue was in respect of appointment on compassionate basis. Various persons had been appointed on compassionate basis. The High Court, considering Regulations 102, 103,104, 105, 106 and 107 of the Regulations framed under the Act 1921, was pleased to hold that if there was no post available, then supernumerary post could be created to appoint the candidates. The State was aggrieved by this direction contending that considering the number of vacancies which were existing and the number of applicants who had to be considered for being appointed on compassionate basis, no vacancy would be left for filling up by direct recruitment and if the Rules and Regulations are so read, it would be arbitrary, depriving candidates, who are otherwise eligible for direct recruitment, from being considered. Considering the said contention, we may gainfully reproduce paragraph 8 of the said judgment of the Supreme Court, which reads as under:-
"8. 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 to 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. In Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC 138 : (1994 AIR SCW 2305) this 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: (SCC p.140 para 2):-
"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 be 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."
After so holding, the Supreme Court was pleased to hold that in the matter of appointment of a dependant of a teaching/non-teaching staff in a non-government recognized 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 dependant 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. The Supreme Court was, therefore, pleased not to agree with the direction issued by the High Court to make available a Class-III post if the candidate has the requisite qualifications.
It is true that Rule 13 (5) of the Rules 1998 was not under consideration but what was under consideration was filling in vacancies on compassionate appointment based on Regulations in aided and recognizsed schools. This judgment apparently was not placed before the learned Judge considering the case of Raja Ram (supra). Rule 13 (5) of the Rules 1998, thus, is an enabling provision that in the event a candidate is selected against a vacancy which was advertised and such a candidate could not be appointed on account of there being no vacancy, then in that event, such a candidate, who is otherwise eligible, can be adjusted against any other post.
If the view taken in Raja Ram (supra) is accepted, it would mean that if the vacancy has been requisitioned and advertised, then no appointment can be done. In our opinion, this would not be the correct interpretation of the Rule. The very purpose and object of compassionate appointment is to help a family in distress. Rules or procedure cannot defeat this objective. It makes no difference whether the appointment was made before or after the advertisement of the vacancy. Advertisement is only a means by which persons eligible are being called upon to apply for the post for being considered for appointment against such posts if they are otherwise qualified, which does not mean that an employer is bound to give appointment to a candidate who has been selected. Discretion always vests with the employer. This discretion is, of course, has to be rational and logical. In other words, there cannot be pick and choose. Similarly, the reasons given for not filling up the post after being advertised cannot be extraneous. If the vacancy is filled in on compassionate basis, it cannot be said to be arbitrary or extraneous or violative of equality clause enshrined under Article 16 of the Constitution of India.
We may also refer to a judgment of the Supreme Court in the case of Hira Man Vs. State of U.P. & Ors., (1997) 11 SCC 630. This was a case where the Rules of 1974 were under consideration. In that case, the contention urged on behalf of the candidate, who was appointed on compassionate basis, was that as he was a graduate and possessed necessary qualification for being appointed on the post of Clerk, he ought to have been appointed on the said post especially when the post of Clerk was available. It is in that context, the Supreme Court was pleased to consider the import of the Rules 1974, more specifically Rules 4, 5 and 8, and after considering the same, the Court observed as under:-
"... Thus, if we read Rules 4, 5 and 8 together, it becomes clear that overriding effect which is given to the said rules is with respect to the age and the procedure for selection for appointment on a post for which the dependant seeks appointment."
The Court was further pleased to observe as under:-
"If the rules are construed in this manner and so we do, the contention raised on behalf of the respondents that notwithstanding the fact that the post of clerk which had fallen vacant, belonged to the promotional quota, Respondent 4 should have been appointed on that post, and not the appellant, has to be rejected."
Thus, in the aforesaid case also the import of the Rules 1974 was considered. The effect of the said Rules as interpreted is that the appointment on compassionate basis can be made in respect of a post for direct recruitment and not in respect of a promotional post.
Therefore, if we consider the aforesaid judgments and the object behind which the Rules have been made, in our opinion, it is not possible to agree with the view taken by the learned Judge in the case of Raja Ram (supra) that merely because the post was advertised, therefore no appointment can be made on compassionate basis. Appointment on compassionate basis is governed by the Regulations which were not challenged before the learned Judge. Rule 13 (5) of the Rules, 1998 is an enabling provision, conferring power on the authorities if a candidate is selected and at the time of joining, the post is not available, then by virtue of the Rule to appoint such a candidate in any other institution against a notified post. This, in no manner, can defeat the object of compassionate appointment under the Regulations.
For the aforesaid reasons, we are clearly of the view that the direction issued by the Secretary of respondent no.5 by order dated 10.08.2010 is clearly without jurisdiction and has to be quashed and is, accordingly, quashed. But, at the same time, the rights of the appellant cannot be defeated and we direct that he shall be appointed to any other post as per his preference.
We, therefore, dismiss this appeal with the above directions. The petition is also disposed of in terms of what we have set out above.
A copy of this order be placed in the file of Writ Petition No. 7144 (S/S) of 2010.
19.01.2011 AHA (S.S. Chauhan, J.) (F.I. Rebello, C.J.) C.M. Application No. 5411 of 2011 Hon'ble F.I. Rebello, C.J.
Hon'ble S.S. Chauhan, J.
Grounds taken in the affidavit filed in support of this application for condonation of delay in filing the appeal are sufficient.
Accordingly, the delay in filing the appeal is condoned.
Application stands allowed.
19.01.2011 AHA (S.S. Chauhan, J.) (F.I. Rebello, C.J.) Hon'ble F.I. Rebello, C.J.
Hon'ble S.S. Chauhan, J.
Appeal stands dismissed.
For orders, see order of date passed on separate sheets.
19.01.2011 AHA (S.S. Chauhan, J.) (F.I. Rebello, C.J.)