HIRA MANversusSTATE OF U.P. AND ORS.

A                                  HIRAMAN
                                         v.
                           STATE OF U.P. AND ORS.

                                 AUGUST 8, 1997

B                (S.C. AGRAWAL AND G.T. NANAVATI, JJ.]

         ·service Law:

         Uttar Pradesh Recrnitment of Dependents of Government Servants
C Dying in Harness Rules 1974 : Rules, 4, 5 and 8---Compassionate appoint-
  ment-Relaxation of normal recruitment mies-Overriding effect-Extent
  of-Held, overriding effect only in respect of age and procedural require-
  ment-Eligibility conditions are to be satisfied-Open to appointing authority
  to interview candidate-No intention of rule making authority to give overrid-
  ing effect over statutory provisions-Constitution of India, 1950 : Article 309.
D
          Respondent No. 4 whose father died while in service, made request
    for appointment on compassionate ground. The appellant who was work•
    ing on a class IV post, was promoted as a Clerk and respondent No. 4 was
    appointed as a peon. Respondent No. 4 challenged before the High Court
E   the order of promotion of the appellant and claimed that he should have
    been appointed to class IIJ post. The Single Judge of the High Court
    quashed the promotion order of the appellant and directed the Manage-
    ment to appoint respondent no. 4 in the post of clerk. Appeal before the
    Division Bench was dismissed. Hence the present appeal.

F         The contention of the appellant was that the post of Clerk, which had
    fallen vacant was of promotional quota which was not available for an
    outsider and therefore, the High Court committed a grave error in quash-
    ing the promotion of the appellant.

           The contention of the respondent was that the Dying in Harness
G Rules 1974 override all other provisions regarding recruitment on posts
     which do not fall within the purview of the U.P. Public Service Commission
     and therefore even if the post of Clerk belonged to the promotional quota,
     appointment of respondent no. 4 on that post was legal.

H          Allowing the appeal, this Court
                                        396
                         HIRA MAN v. STATE                            397
       HELD : 1. The High Court erred in quashing the promotion order A
of the appellant. Rules 4, 5, and 8 of the Uttar Pradesh Recruitment of
Dependents of Government SerVants Dying in Harness Rules 1974, read
together make it clear that overriding effect given to rules is with respect
to the age and the procedure for selection. The rule making authority has
taken care to emphasise, even while making such relaxation that employ· B
ment is to be given only if other eligibility conditions are satisfied by
providing that such dependent member must fulfill the educational
qualifications prescribed for the post and must also otherwise be qualified
for Government service. Regarding procedural requirements for selection
it is provided that it shall be open to the appointing authority to interview
the candidate in order to satisfy itself that the candidate will be able to C
maintain the minimum standard of work and efficiency expected on the
post. Thus it cannot be said that respondent no. 4 should have been
appointed in the vacant post of clerk instead of the appellant.
                                                 [400-A; 402-F -H; .403-A]

      2. Rule 5 of the Uttar Pradesh Recruitment of Dependent of Govern·
                                                                             D
ment Servants Dying in Harness Rules, 1974 imposes an obligation on the
State Government to give suitable employment to the dependent of the
deceased Government servant. It contemplates giving of a suitable employ·
ment to dependent in relaxation of the normal procedure prescribed by the
relevant recruitment rules. The rule making authority specifically made a E
provision as to what is to be relaxed and to what extent it is to be relaxed.
If the intention of the Rule making authority was to give the Dying in
Harness Rules an overriding effect over all other recruitment rules or
regulations in all respect, then it would have been unnecessary for it to
provide for relaxation of the normal recruitment rules in rule 5 and F
relaxation of age and the procedural requirements for selection in rule 8.
                                                        [401-F; 402-B-E]

       3. Dying in Harness Rules are made under Article 309 of the Con·
stitution. Article 309 empowers the appropriate Legislatures to·regulate G
the recruitment and conditions of service of persons appointed to public
services and posts in connection with the affairs of the Union or the State.
The proviso to that Article empowers the President in the case of the
services and posts in connection with the affairs of the Union and the
Governor of a State in the case of services and posts in connection with
the affairs of the State to make rules regulating the recruitment and the H
    398                   SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A conditions of service of persons appointed to such services and posts until
    provision in that behalf is made by or under an Act of the appropriate
    Legislature under that Article. The rules made in exercise of this power
    have the effect subject to the provisions of any such act passed by the
    appropriate Legislature. It is assumed that in the State of Uttar Pradesh
B   there are other rules regulating the recruitment and conditions of service
    of persons appointed in U.P. Government service and on posts under that
    Government, made by or under Acts of U.P. Legislature. Obviously, the
    rule making authority, while making the Dying in Harness Rules, could
    not have intended to override such statutory provisions. [403-B-E]

C           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5355 of
    1997.

         From the Judgment and Order dated 10.12.93 of the Allahabad High
    Court in S.A. No. 878 of 1993.

D           P.K. Gaur and K.K. Gupta for the Appellant.

            K.K. Rao and Ranjan Mukherjee for the Respondents.

            The Judgment of the Court was delivered by

E           NANAVATI, J. Leave granted.

            Heard learned counsel for the both the sides.

          The appellant was employed as a Daftari (class IV employee) in
    Nehru Intermediate College, which is a recognised and Government aided
F   college. He continued to work on that post till he was promoted as a clerk
    on 11.5.1990. In the said college, one Surya Narain Srivastava was working
    as an Assistant Teacher. He died on 11.5.1987 while in service. On
    29.2.1989 his widow made a request to the Principal of the college for
    appointing her son, respondent No. 4, to a non-teaching post on compas-
    sionate grounds. In December, 1989 and February, 1990 Distt. Inspector
G   of Schools, respondent No. 2, also wrote to the Principal of the college to
    give suitable employment to respondent No. 4. On retirement of a Head
    Clerk on 30.6.1989 one clerk was promoted to that post and, therefore, one
    post of clerk became vacant. In April, 1990 the management decided to
    promote and appoint the appellant on that post as it belonged to the
H   promotional quota. It also decided to promote one Ramdin, who was
                   HIRAMANv. STATE(NANAVATl,J.]                           399

working as a peon, as a Daftari in the place of the appellant and appoint        A
respondent No. 4 as a peon. It then sough approval of the District Inspec-
tor of Schools for the proposed promotions and appointment. It was
granted on 11.5.1990. Pursuant then;to the appellant was promoted as a
clerk on 11.5.1990 and respondent No. 4 was appointed as a peon on
12.5.1990. Respondent No. 4 represented to the management that as he             B
was a graduate and possessed necessary qualifications for appointment as
a clerk he ought to have been appointed as a clerk and not as a peon
especially when a vacant post of clerk was available. The management did
not accept his representation. Therefore he filed Civil Misc. Writ Petition
No. 444 of 1991 in the Allahabad High Court challer.ging the appointment
of the appellant as a clerk.                                                     C

      The petition was allowed by the l~arned single Judge of that Court
as he was of the opinion that, in view of the U ttar Pradesh recruitment of
Dependents of Government Servants Dying in Harness Rules, 1974,
respondent No. 4 had become entitled to an immediate employment after            D
29.2.1989 and it was, therefore, not proper for the management to delay
his appointment after a post of clerk had fallen vacant in June, 1989 and
to promote the appellant on that 11.5.1990. He, therefore, quashed the
promotion of the appellant as a clerk and that of respondent No. 4 as a
peon and directed the management and the authorities to appoint respon-
dent No. 4 on the said vacant post of clerk w.e.f. 12.5.1990.                    E

       As a result of this decision the appellant was demoted as a peon. The
appellant challenged the decision of the learned single Judge by filing
Special Appeal No. 878 of 1993 in the High Court. The Division Bench of
the High Court held that the Dying in Harness Rules over-ride all other          F
recruitment rules in respect to posts not falling within the purview of the
Uttar Pradesh Service Commission. It further held that in view of the
educational qualifications of respondent No. 4 and the availability of a clear
vacant post of a clerk respondent No. 4 ought to have been appointed as
a clerk and not as a peon. It also held that the appellant, who was a class
IV employee, ought not to have been promoted as a clerk, ignoring the            G
claim of respondent No. 4. It, therefore, upheld the decision of the learned
single Judge and dismissed the appeal.

      The contention of the learned counsel for the appellant was that the
post of clerk, which had fallen vacant after June, 1989 was of the promo-        H
    400                  SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A tional quota and, therefore, it was not available for an outsider including
    respondent No..4 and, therefore, the High Court committed a grave error
    in quashing the promotion of the appellant to that post and directing the
    college management and the authorities to appoint respondent No. 4 on
    that post. On the other hand, what tlie learned counsel for the respondent
    No. 4 contended was that the Dying in Harness Rules over-ride all other
B   provisions regarding the recruitment on posts which do not fall within the
    purview of the U.P. Public Service Commission and, therefore, even if the
    post of clerk which had fallen vacant belonged to the promotional quota,
    it was the legal duty of the college management and the authorities to
    appoint respondent No. 4 on that post.
c
           The Uttar Pradesh Recruitment of Dependents of Government Ser-
    vants Dying in Harness Rules, 1974 have been framed in exercise of the
    powers conferred by Article 309 of the Constitution of India. Rule 3 of the
    said Rules makes these Rules applicable to the recruitment of dependents
D   of the deceased Government servants to public services and posts in
    connection with the affairs of State of Uttar Pradesh, except services and
    posts which are within the purview of the Uttar Pradesh Public Service
    Commission. Rule 4, on which heavy reliance has been placed by the
    learned counsel for respondent No. 4, gives an overriding effect to those
    rules by providing that they shall have the effect notwithstanding anything
E   to the contrary contained in any rules, regulations or orders in force at the
    commencement of those rules. It was contended that so far. as recruitment
    of such dependents to public service and posts is concerned Dying in
    Harness Rules override all other recruitment rules and that would neces-
    sarily imply that even if quota for promotion and direct recruitment is fixed
    under those Rules, they will have to give way and the dependent of the
F
    deceased Government servant will have to be accommodated on the first
    available vacancy irrespective of whether it is to be filled up by promotion
    or by direct recruitment.

           On the reading of the Rules as a whole, we do not think that rule 4
G    of the said Rules has that effect. Rules 4, 5 and 8 read as under :

                 "4. Oveniding effect of these ntles - These rules and any orders
             issued thereunder shall, have effect notwithstanding anything to
             the contrary contained in any rules, regulations or orders in force
H            at the commencement of these rules.
                 HIRAMANv. STATE[NANAVATI,J.)                          401
       5. Recruitment of a member of the family of the deceased - In case A
       a Government servant dies in harness after the commencement of
       these rules, one member of his family who is not already employed
       under the Central Government or a State Government or a Cor-
       poration owned or controlled by the Central Government or a
       State Government shall, on making an application for the purpose, B
       be given a suitable employment in Government service which is
       not within the purview of the State Public Service Commission in
       relaxation of the normal recruitment rules, provided such member
       fulfills the educational qualifications prescribed for the post and
       is also otherwise qualified for Government service. Such employ-
       ment should be given without delay and, as far as possible, in the C
       same department in which the deceased Government servant was
       employed prior to his death.

        8. Relaxation from age and other requirements (1) The candidate
        seeking appointment under these rules must not be less than 18 D
        years at the time of appointment.

        (2) The procedural requirements for selection, such as written test
        or interview by a selection committee or any other authority, shall
        be dispensed with, but it shall be open to the appginting authority
        to interview the candidate in order to satisfy itself that the can-   E
        didate will be able to maintain the minimum standards of work
        and efficiency expected on the post.

        (3) An appointment under these rules shall be made against an
        existing vacancy only."
                                                                              F
Rule 5 imposes an obligation on the State Government to give suitable
employment to the dependent of the deceased Government servant in the
S~ate Government service or on a post which is not within the purview of
the. State Public Service Commission provided that he is not already
employed under the Central Government or a State Government or a
Corporation owned by the Central Government or a State Government. It G
further provides that such employment is to be given in relaxation of the
normal recruitment rules, provided such member fulfills the educational
qualifications prescribed for the post and is also otherwise qualified for
Government service. Such employment has to be given without delay.
Obviously this provision has been made with a view to achieve the object H
    402                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A of t.he rules, viz., to provide immediate succour to family of the deceased
  Government servant when it is put in a difficult financial situation as a
  result of his death. If the dependent of the deceased Government servant
  is made to wait till the vacancy it to be filled up by following the prescribed ·
  procedure under the normal recruitment rules and to compete with others,
  the object of the rule would get frustrated. Therefore, such appointment
B
  has to be made in relaxation of the normal procedure prescribed by the
  relevant recruitment rules. For that reason Rule 5 contemplates giving of
  a. suitable employment to such dependent in relaxation of the normal
  procedure prescribed by the relevant recruitment rules and that becomes
  clear when we read this rule along with Rule 8. The rule making authority
C after providing generally in Rule 4 that Dying in Harness Rules and any
  orders issued thereunder shall have effect notwithstanding anything to the
  contrary contained in any rules, regulations or orders in force at the
  commencement of the rules has thereafter in rules 5 and 8 specifically
  provided what to be relaxed and to what extent it is to be relaxed. If the
D intention of the rule making authority was to give the Dying in Harness
  Rules an overriding effect over all other recruitment rules or regulations
  in all respects, then it would have been unnecessary for it to providl'. for
  relaxation of the normal recruitment rules in rule 5 and relaxation of age
  and the procedural requirements for selection in rule 8. Sub-rule (1) of
  rule 8 makes relaxation in the matter of age of the candidate seeking
E appointme!1t und.:r the said rules. Sub-rule (2) dispenses with the require-
   ments of selection such as written test or interview by selection committee
  or any other authority. Rule 5 speaks of relaxation and Rule 8 indicates
   the extent of relaxation contemplated by the said rules. Thus if was read
   rules 4, 5 and 8 together, it becomes clear that overriding effect which is
F  given  to the said rules is with respect to the age and the procedure for
   selection for appointment on a post for which the dependent makes an
   application. The rule making authority has taken care to emphasise, even
   while making such relaxation , that employment is to be given only if other
   eligibility conditions are satisfied by providing that such dependent mem-
   ber must fulfill the educational qualifications prescribed for the post and
G must also otherwise be qualified for Government service. While dispensing
   with the procedural requirements for selection it is provided that it shall
   be open to tht: appointing authority to interview the candidate in order to
   satisfy itself that the candidate will be able to maintain the mininium
   standard of work and efficiency expected on the post. If the rules are
H construed in this manner, and so we do, the contention raised on behalf of
                   HIRAMANv. STATE [NANAVATI,J.)                        403

the respondents that notwithstanding the fact that the post of clerk which A
had fallen vacant, belonged to the promotional quota, the respondent No.
4 should have been appointed 'on that post, and not the appellant, has to
be rejected.

         It is also pertinent to note that the Dying in Harness Rules are made
  under Article 309 of the Constitution. Article 309 empowers the ap- B
  propriate legislatures to regulate the recruitment and conditions of service
  of persons appointed to public services and posts in connection with the
  affairs of the Union or the State. The proviso to that Article empowers the
  President in the case of the services and posts in connection with the affairs
  of the Union and the Governor of a State in the case of services and posts C
  in connection with the affairs of the State to make rules regulating the
  recruitmi;nt and the conditions of service of persons appointment to such
  services and posts until provision in that behalf is made by or under an Act
  of the appropriate Legislature under that Article. The rules made in
  exercise of this powers have the effect subject to the prm(isions of any such
  act passed by the appropriate legislature. We assume that in the State of D
  Uttar Pradesh there are other rules regulating the recruitment and condi-
. ti on of service of persons appointed in U .P. Government service and on
  posts under that Government, made by or under Acts of U.P. legislature.
  Obviously, the rule making authority, while making the Dying in Harness
  Rules, could not have intended to override such statutory provisions. For E
  this reason aiso we cannot construe rule 4 of a Dying in Harness Rules in
  the manner suggested by the respondent.

       For the reason stated above we are of the opinion that the contrary
view taken by the High Court is wrong. We, therefore, allow this appeal,
set aside the judgment and order dated 10.12.1993 passed by the Allahabad     F
High Court in Special Appeal No. 878 of 1993 and dismiss the Civil Misc.
Writ Petition No. 444 of 1991, filed by respondent No. 4. There shall be no
order as to costs.

S.V.K.I                                                    Appeal allowed.