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TMI Blog1998 (5) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... ese appeals relate 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. 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 appointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing 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-teach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost and on that basis orders of appointment were issued. 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 have been allowed by the High Court by the impugned judgments. In case where appointment had ben made on a class IV post, the High Court has quashed such orders and has directed that the appointment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. It has also been pointed out 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. 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 b e 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 fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC 138, 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 again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. We are, therefore, unable to uphold the direction given by the High Court in the impugned judgments whereby the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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