JUDGMENT
V. M. Sahai, J.
1. Petitioner’s father a lecturer in Physics in Rashtriya Inter College. Bali Nichlol. Maharajganj died in harness on 4.7.88. The petitioner became major in 1990. He was appointed on 1.7. 92 by the respondents under, U. P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (in brief Rules). Financial approval was accorded on 31.8.92 w.e.f. 1.7.92. After joining as a Class-IV employee, he claimed that he should be given class-III post as per his qualification and made representation to the respondents but nothing was done. He filed the instant writ petition claiming promotion/ appointment on a class III post.
2. Heard Shri K Ajit learned counsel for the petitioner and Shri S. N. Srivastava learned standing counsel for the respondents.
3. Learned counsel for the petitioner urged that the petitioner accepted appointment on a class IV post on the oral assurance of the respondents that his claim to class III post will not be treated to have been waived. Though vacancies occurred and he was qualified and eligible but he was not appointed on a Class III post. In support of his argument, the learned counsel relied on a division bench judgment of this Court in Hiraman v State of U. P. and others, 1994 (1) UPLBEC 420. Standing counsel argued that once the petitioner accepted appointment on a class IV post, he cannot claim subsequently class III post.
4. The entire claim of the petitioner is based on his allegation that the respondents verbally assured him that if he accepts class-IV post, it will not be treated to be waiver of his right to claim subsequently a class-III post. In Hiraman (supra), the court was considering a case where the employee had earlier been given a class IV post under the dying-in-harness rules but was latter given class III post according to his qualification. Hiraman challenged the appointment on the ground that class III post was required to be filled by promotion. In writ petition his claim was not accepted and the appointment order was upheld. While affirming the view taken in writ petition, the division bench in special appeal observed that appointment on class-IV post was accepted under protest, therefore, there was no illegality In the order of the learned single Judge, however, this case was rendered on the facts and circumstances of that case.
5. The Apex Court in Director of Education (Secondary) and another v. Pushpendra Kumar and others, 1998 (2) UPLBEC 1310. considered the rules and Chapter III, Regulations 101. 103, 104, 105A, 106 and 107 of the Regulations framed under the U.P. Intermediate Education Act, 1921 and held as under :
…..The regulations governing
appointment of dependents of teaching/non-teaching staff in non-Government recognised aided institutions dying in harness would result in all the vacancies in class III posts non-Government recognised aided institutions which are required to be filled by direct recruitment being made available to the dependent of persons employed on the teaching/non-teaching staff of such institution who die in harness and the right of other persons who are eligible for appointment to seek employment on those posts by direct recruitment would be completely excluded. On such a construction the said provision in the Regulations would be open to challenge on the ground of being violative of the right to equality in the matter of employment inasmuch as other persons who are eligible for appointment and who may be more meritorious than the dependents of the deceased employee would be deprived of their right of being considered for such appointment under the rules. A construction which leads to such a result has to be avoided. Having regard to the fact 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 the dependent of a person employed in a 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 a 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. If 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.
6. The object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crises resulting due to death of the bread earner. The petitioner was appointed under the rules on a class IV post after he attained the age of majority. Once he accepted appointment on a class IV post and Joined, his claim under the rules came to an end. The family of the employee who died in harness was provided with source of livelihood. The rules do not provide for any subsequent change. The learned counsel for the petitioner could not point out any rule under which a person given the benefit of rule once could claim a different or higher post. In any case the respondent in refusing to appoint petitioner against class III post once he accepted class IV post did not commit any error of law nor they acted against the rules.
7. For the aforesaid reasons, I do not find any merits in this writ petition. It falls and is accordingly dismissed.
8. There shall be no order as to
costs.