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RAM SWARUP versus D.I.O.S., MAINPURI AND OTHERS

High Court of Judicature at Allahabad

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Ram Swarup v. D.I.O.S., Mainpuri And Others - WRIT - A No. - 24173 of 1996 [2007] RD-AH 15569 (14 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 24173 OF 1996

Ram Swarup

versus

District Inspector of Schools, Mainpuri and others

----

HON. SHISHIR KUMAR,J.

The petitioner has approached this Court for quashing the order impugned dated 27.7.1996, Annexure-3 to the writ petition passed by respondent no.1. It has been alleged by the petitioner that the petitioner was appointed as Lab Assistant in the year 1981 and from that date discharging the said duty. One Siya Ram Dwivedi was a teacher in Nehru Smarak Inter College. His son Brijesh Kumar Dwivedi made an application for appointment under the Dying in Harness Rules. The Head Clerk of the institution in which the petitioner is working was going to retire on 31.7.1996. In such a situation the District Inspector of Schools wrote a letter to the Committee of Management that the eligible person working on the post of clerk in the said institution may be promoted on the post of Head Clerk and on his vacancy caused due to the promotion, Sri Brijesh Kumar Dwivedi who is the dependent of Siya Ram Dwivedi who was a teacher,died in harness, may be adjusted.

The petitioner submits that he is the only eligible candidate to be promoted on the post of clerk under 50% quota. As it was vacancy of 50% quota, therefore, as the petitioner was fully eligible to be promoted on the said post, no person under the Dying in Harness Rules can be adjusted in the said institution.

The writ petition was filed in the year 1996. The writ petition was dismissed on 6.8.1996 at the admission stage. The petitioner submits that against this order, he filed a special appeal and the spacial appeal was allowed vide order dated 3.10.1996. From that date the writ petition was not listed. Even no notice has been issued

The learned counsel for the petitioner Sri S.C. Srivastava placed reliance upon the judgement of the Apex Court reported in 1997 (3) UPLBEC 1631 Hira Man Vs. State of U.P. And others. Taking support of the aforesaid judgement, learned counsel for the petitioner submits that there cannot be any appointment under the Dying in Harness Rules if the post comes under the promotion quota. Rule 3 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules 1974makes these rules applicable to the recruitment of dependent of the deceased Government servant to public services and posts in connection with the affairs of the State of U.P. And, therefore, the promotion quota post cannot be filled up by the direct recruitment or by a candidate under the Dying in harness Rules. Therefore, the adjustment of respondent no.5 is not correct and the petitioner is entitled to be promoted on the post of clerk.

I have heard the learned counsel for the petitioner and Sri B.R. Singh counsel for respondent no.5 and perused the record. Admittedly, the order of appointment has been passed in the year 1996. The judgement cited by the learned counsel for the petitioner will not be applicable in the present case as the Court was considering the various provisions of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules 1974 . In that rule there is no provision which indicates that an appointment under the Dying in Harness Rules is as a matter of right or there is no special provision mentioning therein that in spite of the fact if there is no vacancy, the superannuary post be created for adjustment of the dependent. The Legislature taking into consideration has incorporated Regulations 101 to 107 by an amendment of 1992 dated 30.7.1992. Regulations 102 to 106 are being reproduced below:

"102. Information regarding vacancy as a result of retrenchment of any employee holding an non-teaching post in any recognized aided institution shall be given before three months of his date of retirement and information about any vacancy falling due to death, resignation or for any other reasons shall be intimated to the Inspector by the appointing authority within seven days of the date of such occurrence.

103. Notwithstanding anything contained in these regulation, where any teacher or employee of ministerial grade of any recognised aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less than 18 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 qualification, training eligibilities, if any, and he is otherwise fit for appointment:

Provided that anything contained in this regulation would not apply to any recognised 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.

104.Management of any recognised, aided institution within seven days of the date of death shall present a report to the Inspector about the members of the family of deceased employee, in which particulars of the deceased employee, post held, pay scale, date of appointment, date of death, name of the appointing institution and names of his family members, their academic and training eligibilities, if any, and age shall also be given. Inspector shall make entries of particulars of the deceased in the register maintained by himself.

105.Any member of the family of the deceased employee referred to in Regulation 103 shall apply to the Inspector for appointment as teacher in any trained graduate grade or in any clerical grade, as the case may be. Application would be considered by the Committee and if the Committee recommends his appointment, the Inspector shall send the application to the Management Committee of the recognised, aided institution in which the applicant is to be appointed to issue the appointment letter as per Regulations 106 and 107.

106. Appointment of the member of the family of the deceased employee as per his academic eligibilities shall be done in trained graduate grade or on any clerical post so far as possible in that institution in which the deceased employee was in service. If there is no vacancy in trained graduate grade for teacher or in ministerial cadre in such institution, he shall be appointed in any other recognised, aided institution of the district where such vacancy lies:

Provided that if for the time being no vacancy exists in any recognised, aided institution of the district then in institution where deceased was serving at the time of his death, appointment against any surplus post of teacher in trained graduate grade or clerical post of class four shall immediately be made. Such surplus post shall be deemed to be created for this purpose and shall be continued until any vacancy in that institution or in any other recognised, aided institution of the district is available and in this case service rendered by such surplus post holder shall be counted for the purpose of pay fixation and retirement benefits."

From the perusal of the aforesaid regulations, it is clear that in case of death of any employee in any recognised institution a mandatory duty is cast upon the management to inform regarding the death of the employee or teacher to the District inspector of Schools. The District inspector of Schools shall make entries of the particulars of the deceased in the register maintained by himself and as soon as any vacancy is caused in the district itself, it is only the District Inspector of Schools who can appoint the candidate who had already made an application under the Dying in Harness Rules to be adjusted in any college. From the perusal of Regulation 106 it is also clear that a proviso clause mentioned itself that if for the time being, no vacancy exists in a recognised institution, the appointment against a surplus teacher in a trained graduate grade or clerical post of Class-IV shall immediately be made. Meaning thereby that in spite of the fact that if there is no post in the recognised institution, an appointment can be made by the District Inspector of Schools by creating a superannuary post and as soon as any vacancy occurs in a recognised institution, he will be adjusted. After perusal of the U.P. Recruitment of Dependent of Government Servants under the Dying in Harness Rules there is no provision to this effect that in spite of the fact if there is no vacancy, a dependent has to be adjusted in spite of the fact that there is no post. In view of the aforesaid fact it clearly appears that respondent no.5 was given appointment under the Dying in Harness Rules in the institution where his father was teaching but as there was no post in that particular college, as soon as the vacancy has been created in the present institution where the petitioner is working, the District Inspector of School taking into consideration the various regulations of the Intermediate Education Act has passed the order directing the Committee of Management to do the needful.

The petitioner has not come with a case before this Court clearly identifying that what is the number of sanctioned post of Class-III employees and whether the employees who are working were appointed directly and who have been promoted. What is the quota of the promotional post has not been mentioned in the writ petition. In the supplementary affidavit filed by the petitioner it only mentions regarding the employees working in the institution including Class-IV and Class-III.

Admittedly, respondent no.5 has already been given appointment in the year 1996 and about 12 years have passed, therefore, in the interest of justice it will not be proper to disturb the appointment of respondent no.5.

In such a situation the petitioner is not entitled to any relief. It is however open to the petitioner to approach the relevant authority for his grievance in case some future vacancy has been created or is to be created and if he is eligible, he can raise his grievance before the competent authority.

The writ petition is dismissed accordingly.

No order is passed as to costs.

14.9.2007

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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