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1993 DIGILAW 702 (ALL)

HIRAMAN v. STATE OF UTTAR PRADESHAND ORS.

1993-12-10

B.M.LAL, S.R.MISRA

body1993
S. R. MISRA, J. ( 1 ) THIS special appeal arises out of an order passed by learned Single Judge dated September 29, 1993. ( 2 ) WE have heard the counsel for the appellant Sri Ram Niwas Singh and Sri H. S. N. Tripa-thi, appearing for the respondent No. 4. As agreed between the parties this special appeal is being disposed of finally at the admission stage. ( 3 ) THE brief facts giving rise to this appeal are as follows:karunesh kumar Srivastava, petitioner in Writ Petition No. 444 of 1991 and respondent No. 4 in the present special appeal, filed the aforesaid writ petition seeking a writ of mandamus, commanding the opposite party to appoint him as a clerk in the Nehru Intermediate College and pay salary on the facts stated in the writ petition. ( 4 ) NEHRU Intermediate College, Semari Suk-rauli, post office Sikrauli, District Deoria, is a recognised college and aided by the State Government. One Surya Narain Lal Srivastava was an assistant Teacher in the said college who died in harness on May 11, 1987. His son namely karunesh Kumar Srivastava claiming himself to be a graduate and qualified for appointment to the post pf Clerk, filed application on February 29, 1988 for being appointed on compassionate ground as Clerk under the Dying in Harness Rules in terms of Government order dated september 23, 1981. His application was not considered. He filed representations. ( 5 ) ADMITTEDLY, there was a clear post of Clerk but the petitioner was not appointed. District inspector of Schools directed the management to appoint the son of the deceased teacher on compassionate ground under the Dying in Harness Rules but no appointment letter was issued. Instead of appointing Karunesh Kumar Srivastava as a clerk the management, however, appointed him as peon on May 12, 1990. Petitioner represented his case before the District inspector of Schools and the Committee of Management. He was assured that needful will be done and thereafter under protest he accepted the offer of appointment and joined the college as peon on May 17, 1990. Subsequently, the petitioner was disclosed by the management that the management was going to promote a daftari, respondent No. 4. namely Hiraman, the appellant in the present special appeal, as a clerk, hence the petitioner filed a writ petition and the matter was heard by a learned Single Judge. Subsequently, the petitioner was disclosed by the management that the management was going to promote a daftari, respondent No. 4. namely Hiraman, the appellant in the present special appeal, as a clerk, hence the petitioner filed a writ petition and the matter was heard by a learned Single Judge. ( 6 ) PLACING reliance on two Division Bench decisions of this Court as well on the decision reported in Smt. Sushma Gosain v. Union of India (1990-I-LLJ-169) (SC), the learned Single judge allowed the aforesaid writ petition, quashing the order of appointment of respondent No. 4 to the post of clerk, and appointment of the petitioner as peon, and a mandamus was also issued directing the respondents to appoint the petitioner on the post of Assistant Clerk with effect from may 12, 1990. However, he was to be paid salary of a clerk from the date from which he joins the post. Aggrieved by the order of learned Single Judge, appellant has approached this Court by means of this special appeal. Appellant has raised following 4 points:- (i) Appellant was appointed against promotional quota and as such no appointment of the petitioner could have been made under the provisions of Dying in Harness Rules as the post was reserved for promotional quota. (ii) Surya Narain Lal Srivastava, father of the petitioner, died on May 11, 1987 and the application for taking benefit of Dying in Harness Rules was filed on February 29, 1988 and on that date there was no vacancy of a clerk hence the petitioner was not to be appointed. (iii) Once the benefit of Dying in Harness Rules was given to the petitioner on being appointed him on a Class IV post and he having accepted that post it was not open for him to claim for the post of Clerk and his claim for the post of clerk was barred by principle of estoppel. (iv) Lastly it was urged that the learned single Judge has erred in issuing a writ of mandamus for issuance of letter of appointment to the respondent No. 4. As a matter of fact he ought to have directed the District Inspector of Schools for creating another post of clerk in the same, or, any other institution for the petitioner, instead of quashing the appointment of the appellant. As a matter of fact he ought to have directed the District Inspector of Schools for creating another post of clerk in the same, or, any other institution for the petitioner, instead of quashing the appointment of the appellant. ( 7 ) HAVING considered the argument raised on behalf of the appellant we find that there is no substance in any of the arguments raised in special appeal and the same are concluded by the division Bench decisions of this Court. The controversy involved in the present appeal are identical to the aforesaid two Division Bench decisions. ( 8 ) COUNSEL for the appellant placed reliance on a Division Bench decision of this Court reported in 1987 UPLBEC 415, Kumari Nishi Bhargava v. Director of Education, Agra Region, Agra, A perusal of the facts of that case goes to show that the same has no application to the controversy involved in the present case. ( 9 ) IN the case of Vimla alias Vimlesh v. Management Committee, 1987 UPLBEC 257 a Division bench of this Court in identical circumstances passed the following orders:" we therefore quash the promotion of respondent No. 5 to the post of clerk and direct the respondents to appoint the petitioner to the post of clerk in the institution. " ( 10 ) IT is admitted that the present respondent No. 4 to the appeal was seeking an appointment under the provisions of Dying in Harness Rules. His application was kept pending and in spite of the reminders of District Inspector of Schools it was ignored for a considerable time and the respondent No. 4 to the writ petition was promoted to the said post in 1990. Prior to that petitioner has already made his claim to the said post. Deferring of the appointment of the petitioner and keeping the matter pending for a long time and thereafter promoting a Daftari to the post of clerk was on the face of it erroneous. It is further clear that the method adopted by the management in this regard was arbitrary and against the provisions of the Dying in Harness rules. As provided under Dying in Harness Rules a member of the deceased family is entitled to a post according to his qualification. It is further clear that the method adopted by the management in this regard was arbitrary and against the provisions of the Dying in Harness rules. As provided under Dying in Harness Rules a member of the deceased family is entitled to a post according to his qualification. In the background of the facts it is clear that a person by virtue of his educational qualifications and other eligibilities was entitled to the post of clerk under the Dying in Harness Rules should not have been appointed as a peon. Similarly, a Class iv employee should not have been promoted as an Assistant Clerk, ignoring the claim of dependent of deceased employee. This action of trie institution clearly defeated the very purpose and object contemplated under the provisions of Dying in Harness Rules. ( 11 ) AS regards the first contention raised on behalf of the counsel for the appellant that the post of the Clerk was meant for promotion and no appointment could be made against such post of a person claiming employment under the provisions of Dying in Harness Rules. This contention is without any substance. This provision of the said rules is an overriding provision with a view to mitigate the hardship of the family of a deceased. On the death of an employee the dependent of the deceased is entitled for an employment according to his qualifications, and, as such for the post, even if it was meant for promotion, there was no bar in appointing the dependent of the deceased employee as a Clerk (Class III) and no error has been committed by the learned Single judge in this regard. In the normal course, on the death of an employee a post automatically becomes vacant. However, when, equivalent post cannot be provided to the dependent, then question arises that how the dependent, can be accommodated on a post for which he fulfills requisite qualifications? In the normal course, on the death of an employee a post automatically becomes vacant. However, when, equivalent post cannot be provided to the dependent, then question arises that how the dependent, can be accommodated on a post for which he fulfills requisite qualifications? Since the rules provide that if there is no post available, a post may be created in the same institution or in some other institution, in this background when a post of a clerk is already vacant on the death of the employee or in any case when the application of the dependent was considered, a post of Class III was vacant then the question of rejecting the claim of the dependent of the deceased employee on the ground that it was a post meant for promotion is without any substance. ( 12 ) AS regards the second point raised on behalf of the counsel for the appellant that on the date of death of deceased there was no post available, and if subsequently a post falls vacant, the dependent of the deceased will not be entitled to be appointed is erroneous on the face of it. The relevant time for consideration of the application of the dependent is the date of filing application and not the date of occurrence of vacancy. ( 13 ) SO far as the contention of the appellant that once the petitioner Karunesh Kumar Srivas-tava was entitled for appointment to Class III post and on account of any action on the part of the management in spite of the direction of the DI0s when he accepted the post of a Class IV employee, under protest, if found at a later stage that he was entitled for his appointment as Class iii employee, there will be no bar in granting the relief nor his claim can be said to be barred by principle of estoppel. Moreover after the death of an employee the family has to pass days in chill penury and beggars cannot bargain. Such acceptance is demand of circumstances, which cannot deprive a man of his legitimate claim. Moreover after the death of an employee the family has to pass days in chill penury and beggars cannot bargain. Such acceptance is demand of circumstances, which cannot deprive a man of his legitimate claim. ( 14 ) AS regards the last point that in view of the fact that a post in the institution was available the question of creating a post or providing the same in some other institution does not arise and this argument of the learned counsel for the appellant too has no force. ( 15 ) IN view of what has been stated above, we agree with the learned Single Judge who was fully justified in quashing the impugned order and issuing suitable direction which was in conformity with the provision of the rules and he has rightly placed reliance on an Apex Courts decision, reported in Smt. Sushma Gosain v. Union of India (supra) and the Division Bench decision of vimla alias Vimlesh v. Management Committee, (supra ). The Division Bench decision of this court is fully applicable to the facts and circumstances of this case and even otherwise the order is eminently just. ( 16 ) IN view of the aforesaid discussion we do not find any force in the appeal and accordingly it fails and is dismissed. .