- (1.) O. P. Garg, J. In this petition under Article 226 of the Constitution of India, which has come in the wake of following facts, it is prayed that by means of a writ of certiorari, the order dated 13-9-1994, passed by District Inspector of Schools (for short 'digs') Ghazipur, respondent No. 1, be quashed.
(2.) ONE Smt. Girja Devi, who was employed as an Assistant Teacher in Kanya Junior High School, in village Mainpuri, Pargana Karanda, District Ghazipur died in harness on 13-7-1993 leaving behind her two daughters, namely, Smt. Ranjana Pandey and the petitioner Smt. Santwana Kumari. Smt, Ranjana Pandey is already employed as a teacher in Agrasen Inter College, Varanasi. Smt. Santwana Kumari, the petitioner, who has passed High School in first division in 1985 and Intermediate examination in 1987, applied for appointment as the de pendent of the deceased employee on compassionate grounds. The petitioner, who is a married woman, claimed that since she has been -divorced by her hus band, she was dependent on her mother and being a divorced daughter, is entitled to be considered for appointment as the dependent of her deceased mother. The request of the petitioner for appointment was not favourably considered. Conse quently, she filed a writ petition, being Civil Misc. Writ No. 21558 of 1994, in which a direction was issued that the com petent authority shall consider and take decision on the representation of the petitioner. The Basic Shiksha Adhikari wroto to Basic Shiksha Parishad recom mending the case of the petitioner for ap pointment in place of her mother on com passionate ground but the request was turned down primarily on the a ground that the petitioner, who is 'divorced woman' does not fall within the category of 'dependent', as contemplated by the departmental orders. By the impugned order dated 13-9-1994, the petitioner was informed that she cannot be appointed as a teacher as she does not fall in the category of dependents of her deceased mother, undisputediy, unemployed son, unmarried daughter, wife or husband, as the case may be, have been described as dependents of the deceased employee. On a subsequent clarification, the 'widowed daughter' has also been included in the category of dependents. The case of the petitioner is that since unmarried daughters and widowed daughter have been treated as dependents, there is no justification for not including a divorced daughter within the definition of the ex pression 'dependent'. Counter and rejoinder affidavits have been filed. Sri Sidhartha Varma, learned Counsel for the petitioner and Sri K. S. Shukla learned Standing Counsel ap pearing on behalf of the respondents have been heard. They have advanced their sub missions touching the merits of the case also. Therefore, with the consent of learned Counsel for the parties, this writ petition is being disposed of finally on merits at the admission stage. According to the learned Counsel for the petitioner there is no rationale to distinguish and discriminate the case of a 'divorced daughter' from the case of a 'widowed daughter or an 'unmarried daughter', as a divorced daughter is relegated to the same, status as that of an unmarried and widowed daughter. It was also pointed out that the case of the divorced daughter is no much stronger footing than the widowed daughter or an unmarried daughter for one simple reason that the divorced daughter cease to have any connection with the family of her husband and, of necessity, reverts back to her parents' family where she lives like an un married daughter and that, more often than not, a divorced daughter is to be remarried by her parents. The distinction, it was urged, in between a divorced daughter, on the one hand, and the unmar ried daughter, on the other, is artificial, unreasonable and arbitrary and since it has no nexus to the purpose sought to be achieved, it would be just and proper that a divorced daughter is also treated as one of the dependents of the deceased employee dying in harness.
(3.) THE only submission made on be half of the respondents is that since under the departmental orders, a divorced daughter does not find a place in the list of dependents of the deceased employee, the case of the petitioner for appointment merely by reason of the death of her mother cannot be taken into considera tion. To begin with, it may be mentioned that as a rule, appointment in public ser vice is made strictly on the basis of open invitation of applications, on merits. No other mode of appointment nor any other consideration is permissible. The public authorities are not at liberty to follow any other procedure or to relax the qualifica tions laid down by rules for the post. To this general rule, however, there are cer tain exceptions which have been carved out in the interest of justice and to meet certain contingencies. One such exigency is in favour of the dependents of an employee dying in harness and leaving his family in a state of financial destitution. Where a bread winner dies leaving his family in penury and without any means of livelihood, appointment of a dependent is permissible purely on humanitarian con sideration so that the family would be able to make both ends meet. Under the statutory rules or the Government orders, a provision has been made to provide gain ful employment to one of the dependents of the deceased who may be eligible for employment. The employment has been restricted only to the post falling in the categories of Class III and IV employees. There has been a good deal of obfuscation on the issue. The Hon'ble Supreme Court has dealt with the matter and provided guidelines in the case of Umesh Kumar Nagpal v. State of Haryana and others, SLP (C) No. 10504 of 1993, decided on 4- 5-1994. It was observed that the sole object of granting compassionate employment is to enable the family to tide over the sud den crisis. The object is not to give a mem ber of such family a post, much less, a post, for post held by the deceased. What is further, mere death of an employee in har ness does not entitle his family to such sources of livelihood. The Supreme Court further observed that the exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations and the change in the status and affairs of the family en gendered by the erstwhile employment, which are suddenly upturned.;