SUDHIR NARAIN, J. - (1.) THE short question involved in this Special Appeal is whether a person, who has already been granted benefit of dying in harness rule at the time of appointment, can be again given the benefit of the same rule at the time of promotion.
(2.) , The facts in brief are that one Ganga Narain Shukla was Assistant Teacher in L.T. Grade in Ganesh Shankar Vidyarthi Inter College, Kanpur (hereinafter referred to as the 'College') - He died in harness on July 19, 1985. His widow submitted an application in the year 1988 for giving employment in the college to her son, Mahendra Kumar Shukla, on compassionate ground. Mahendra Kumar Shukla, respondent No. 1, also submitted an application on April 19, 1989 before the Manager of the college for giving employment in the college alleging that his father died on July 19, 1985 in harness. He had passed Intermediate examination. A copy of the said application has been filed as Annexure -2 to the writ petition. On this application the Principal made query from him by letter dated April 24, 1989 as to on which post he wanted to be appointed. On April 29, 1989 the respondent stated that he should be appointed to some non -teaching post. He, however, did not disclose the post. The Principal again wrote a letter to him on May 1, 1989 intimating that Class IV employee's post was vacant and on that post he could be given appointment. The respondent agreed to it and he was issued appointment letter for the post of Class IV employee in the college on May 2, 1989 and he joined the said post on May 6, 1989 and is still working there in the same capacity. The Committee of Management of the college advertised one post of clerk -cum -steno typist on June 16, 1992 requiring all the desiring candidates to appear at the interview on June 28, 1992. The respondent submitted an application before the Committee of Management stating that he had passed intermediate examination and was entitled to be appointed as a clerk. His father had died in harness and he should have been appointed as a clerk but he was appointed as a Class IV employee and as a matter of right he is entitled to be promoted to the post of clerk. The Committee of Management of the college did not accede to his request and proceeded to make appointment by selection. One Prabhat Kumar Misra was selected and he was issued appointment letter. The respondent made a representation to the District Inspector of Schools, Kanpur claiming his right for appointment as a clerk. The District Inspector of Schools rejected his claim taking the view that once the respondent had availed the benefit of dying in harness rule by getting appointment as a Class IV employee, he cannot be promoted to the post of clerk, claiming again the benefit of same rule. The respondent filed writ petition in this Court and the learned Single Judge has allowed the writ petition taking the view that the respondent was qualified for being appointed as a clerk and as at the time of his appointment, no post of clerk was available and after the said post having fallen vacant, the respondent was entitled to be appointed to the said post. The Committee of Management has preferred this appeal against this judgment.
(3.) LEARNED Judge took the view that in case at the time of appointment the family member of the deceased employee dying in harness, is not given an employment according to his qualification, he is entitled to be given promotion to a higher post according to his qualification when such higher post falls vacant. Emphasis was that the appointment was taken by the candidate at a time when there was no vacancy of a suitable post according to his qualifications.;