# Hemant Kumar Rai v. Joint Director of Education, Azamgarh and others

- **Citation:** (2001) 1 ILRA 258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemant-kumar-rai-v-joint-director-of-education-azamgarh-and-others-39607
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
258
warned to be careful not to prosecute any
person without compliance of rules.

15. Let a copy of this judgment bet
set to the Secretary (Home), Government
of India, for necessary action in the
direction of preventing such prosecutions
of innocent persons.
Appeal Allowed.

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By the Court

1. Petitioner's mother Smt. Uma
Rani was an Assistant Teacher (L.T.
Grade) in Government Girls Uchchatar
Madhyamik
Vidyalaya,
Ajmatgath,
Azamgath
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 JDE) that his wife who was a teacher
in the vidyalaya died on 28.6.1996 and
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 JDE appointed him on 13.1.2000 on a
class-111 post of junior clerk in the same
institution. He accepted the appointment
reserving his right to claim appointment
1All] Hemant Kumar Rai V. Joint Director of Education, Azamgarh and others
259
on the post of Assistant Teacher
(Art)
on
30.6.2000
he
made
a
representation to JDE that he had
accepted the appointment in class-111
without loosing the 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
6351
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
respondents nos. 1 and 2 has urged that
once
the
petitioner
accepted
the
appointment on the post of Assistant
Teacher and the decision in Sanjeev
Kumar (super) 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 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 nad 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 other financial
crisis which it faces at the time or faith 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
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 wad 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 arguments
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.

4.

The
object
for
granting
appointment on compassionate ground is
to
enable
the
family
of
deceased
employee to tide over the sudden crisis,
which has occurred due to the death of
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
260
sole bread earner of the family. Such
appointments
are
made
purely
on
humanitarian consideration with an object
to provide the family some sources of
livelihood. The appointment is given by
making a departure from the general
provisions for making appointment to a
post. It is in the nature of exception to the
general provision. It cannot be treated as
creating a rights which could be enforced
at
will.
The
petitioner
in
his
representation
dated
30.6.2000
(Annexure-2) clearly stated that he has
accepted the appointment on the post of
junior clerk. Learned counsel for the
petitioner failed to show any rule that
entitles a dependant who has been
appointed can claim a change of post
either in the same or higher grade. In
absence of any rule once the petitioner
joined on class III post of junior clerk, he
could not claim the post of Assistant
Teacher. The decision in Sanjeev Kumar
Dubey (supra) is of no help to the
petitioner. Petitioner is not entitled to any
relief.

5. For the reasons aforesaid, I do not
find any merit in this petition.

This petition fails and is accordingly
dismissed.
Petition Dismissed.

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By the Court

1. We have heard Sri A.B. Saran
learned Advocate for the appellant we are
of the view that in view of the decision of
the Supreme Court in Shankarayya and
another vs. United India Insurance Co.
Ltd. And another AIR 1998 SC 2968,
wherein it has been held that uncles
permission is obtained under Section 170
of the Motor Vehicles Act, 1988, The
insurance company cannot file appeal