V.M.Sahai, J. - (1.) Petitioner's mother Smt. Uma Rani was an Assistant Teacher (L.T. Grade) in Government Girls Uchchatar Madhyamik Vidyalaya, Ajmatgarh, Azamgarh. She died in-harness on 28.6.1996. She left behind her husband Sri Ravindra Nath Rai and the petitioner, her only son. Petitioner's father wrote a letter on 23.7.1997 to the Joint Director of Education, Fourth Region, Azamgarh (in brief J.D.E.) that his wife who was a teacher in the Vidyalaya died on 28.6.1996. And on 21.7.1997 an application was moved for appointing the petitioner under dying-in-harness rules. But the petitioner on the date of application had not completed his education and was not eligible, therefore, he was moving the application for appointment of petitioner after completion of the course and till then a post in L.T. Grade may be kept reserved for him. On the application of the petitioner claiming appointment under dying-in-harness rules, the J.D.E. appointed him on 13.1.2000 on a class-III post of junior clerk in the same institution. He accepted the appointment, reserving his right to claim appointment on the post of Assistant Teacher (Art). On 30.6.2000, he made a representation to J.D.E. that he had accepted the appointment in class-III without losing his right to claim appointment in L.T. Grade and since a Division Bench of the High Court has held that a candidate could claim appointment to the post of Assistant Teacher under dying-in-harness rules, therefore, the petitioner may be appointed Assistant Teacher (Art) under the dying-in-harness rules.
(2.) Sri D. B. Misra, the learned counsel for the petitioner has vehemently urged that in view of decision in Sanjeev Kumar Dubey v. District Inspector of Schools, Etawah and others : 2000 (1) UPLBEC 634 : 2000 (1) ESC 635, petitioner possessed the qualification to be appointed Assistant Teacher (Art) and his appointment on the post of junior clerk could not take away his right to claim the post of Assistant Teacher. On the other hand, Sri K. K. Chand, the learned standing counsel appearing for respondent Nos. 1 and 2 has urged that once the petitioner accepted the appointment of junior clerk under the dying-in-harness rules, he could not claim appointment on the post of Assistant Teacher. And the decision in Sanjeev Kumar (supra) was not applicable to the facts of this case. He further urged that father of petitioner is alive, therefore, the petitioner would be dependant of his father and not of his mother. He submitted that since it has not been disclosed as to what his father was doing and what was his source of income he was not entitled for compassionate appointment.
(3.) The facts of the case demonstrates that the petitioner and his father were under complete misapprehension about the purpose and objective of the appointment under the Dying-in-Harness Rules. In Umesh Kumar Nagpal v. State of Haryana and others. (1994) 4 SCC 138, the Apex Court while considering similar rule held that employment under such rule was not a vested right. The object was to enable the family to get over financial crisis which it faces at the time of death of the sole bread earner. U. P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974, framed by the State Government and amended from time to time and those framed by the Education Department are no different. The petitioner's father while approaching the department on behalf of his son sought reservation of one post in L.T. Grade as he was not qualified and eligible on the death of his mother. The compassionate appointment is permitted at the time of death. It does not entitle anyone to claim that since he was not eligible or qualified on the date of death, the post may be reserved for him when he becomes eligible. The rules do not contemplate any reservation. If such request is accepted, it would defeat the objective of the rule which would convert itself from compassionate employment to tide over financial crisis in the family to reservation of post for employee's dependant as and when he desires. The claim of petitioner's father, therefore, for keeping a post in L.T. Grade reserved for his son was misconceived. The argument of the learned counsel for the petitioner that he accepted the appointment to class-III post without prejudice to his right to claim appointment on the post of Assistant Teacher is equally devoid of any merit.;