# Kailash Nath Shukla v. The Regional Asstt. Director (Basic), Gorakhpur & others

- **Citation:** (2006) 1 ILRA 250
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-20
- **Case number:** Civil Misc. Writ Petition No. 13406 of 1997
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-nath-shukla-v-the-regional-asstt-director-basic-gorakhpur-others-40835
- **Pages:** 17

## Headnote

Sri S.G. Hasnain
Sri B.P. Singh
1 All] Kailash Nath Shukla V. The Regional Asstt. Director (Basic), Gorakhpur & others
251
Sri Jitendra Ojha
S.C.

U.P. Basic Education Teachers Service
Rules
1981-Rule-5-Compassionate
Appointment-Petitioner's father working
as permanent Asstt. Teacher-in Junior
High School (Senior Basic School)-died in
harness on 5.5.82-7.3.87 appointed on
compassionate ground on Asstt. Teacher
in Primary School-13.1.96 appointment
of petitioner as Asstt. Teacher in junior
High School (Sanskrit) subsequent in
order
dated
16.03.96
diversion
of
petitioner from junior High School to
primary school-held proper-as the post
of Astt. Teacher in junior High School is a
promotional post-hence illegality has
been rectified.

Held: Para 20, 21

The
petitioner
was
entitled
to
be
appointed on the post of Assistant
Teacher
in
Junior
High
School
as
untrained
teacher
appears
to
be
misconceived for simple reason that the
post of Assistant Teacher in Junior High
School
(Senior
Basic
School)
is
a
promotional post, as such the petitioner
could
not
claim
his
compassionate
appointment on the said post. Besides
this, once he has accepted the post of
Assistant
Master
in
Primary
School
(Junior Basic School) of the Board in the
year 1987 on compassionate grounds he
can not claim again any higher post on
the same ground unless promoted on the
said post on his turn according to rules
of recruitment. So far as his appointment
on the post of Assistant Teacher in
Senior Basic School vide order dated
13.1.1996 made by the District Basic
Education Officer, is concerned, it was
illegally secured by the petitioner by
manipulation which too was for short
period and by subsequent order dated
16.3.1996 the petitioner has been again
posted at Primary School (Junior Basic
School)
as
Assistant
Teacher.
Thus
aforesaid illegality appears to have been
rectified.
That apart, it is also necessary to point
out that the petitioner has secured his
illegal appointment on compassionate
ground on the post of Assistant Master in
Senior
Basic
School
on
13.1.1996
contrary to the rules of recruitment,
which was rectified subsequently on
16.3.1996 by District Basic Education
Officer, the same view was reiterated
again by District Basic Education Officer
vide impugned order dated 27.1.1997,
thus in my considered opinion in such
situation writ jurisdiction of this court
under Article 226 of the Constitution of
India
cannot
be
invoked
by
the
petitioner to restore an illegal order of
District Basic Education Officer dated
13.1.1996 passed in his favour. The
aforesaid view also finds support from
the decision of Hon'ble Apex Court
rendered in Gadde Venkateswara Rao Vs.
Govt. of Andhra Pradesh, A.I.R. 1966 S.C.

## Text

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250 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of a party invoking the inherent powers of
the Court/"

4. This Ompal is a witness, who is
said to have received some money from
the respondent plaintiff soon after he had
executed the impugned sale deed in
favour of the petitioners. The evidence of
this witness. If found positive and is
believable, will present before the court a
circumstance, which may facilitate just
and proper adjudication of the matter on
this issue, whether any consideration in
the impugned transaction had actually
passed from the vendee to the vendor.
Naturally, this fact is a very relevant fact
in the matter and if the evidence of Ompal
throws due light on such issue, it will
definitely
facilitate
just
and
proper
adjudication of the dispute between the
parties, which has to be decided by the
court. Obviously, the evidence of Ompal
was relevant and permission of his
examination as a witness could not have
been refused simply because there was
some delay in the proposal made by the
defendants petitioners for such tendering
of the evidence. It should have also not
been refused simply because sub-rule (4)
of Rule 2 of Order XVIII C.P.C. had been
deleted in 1999 amendment from the
Code. The principle of law laid down by
the apex court and otherwise also under
the inherent power of the Court, as
enshrined under Section 151 C.P.C., the
court has every jurisdiction to pass any
such order, which in its opinion appears to
be just and proper for proper dispensation
of justice to the parties. Accordingly, the
prayer of the petitioners to the extent it
was made for examining the witnesses
Ompal was quite justifiable. The other
witness Jitendra, who is the scribe of sale
deed and is also relevant witness, must be
examined
and
permission
for
his
examination should be granted along with
Ompal.

5. In view of the aforesaid, the
petition is allowed and the orders of the
court
below
dated
20.10.2005
and
22.11.2005 are hereby quashed. It is
directed that the witnesses Ompal and
Jitendra, as mentioned in the application
of the defendants petitioners, shall be
permitted to be examined in the trial court
latest between 01.02.2006 to 15.02.2006
and not beyond it. Meanwhile, a certified
copy of this order shall be obtained by the
petitioners and submitted to the trial court
for proceeding with the matter as directed
above. In case, till 15.02.2006 the
witnesses
are
not
examined,
no
permission would be given thereafter for
such examination.

6. The certified copy of this order be
given on due payment to the parties by
30.01.2006.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2005

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 13406 of 1997

Kailash Nath Shukla

...Petitioner
Versus
The Regional Assistant Director (Basic)
VII Region, Gorakhpur and others
 ...Respondents

Counsel for the Petitioner:
Sri S.S. Tripathi
Sri A.P. Tewari

Counsel for the Respondents:
Sri S.G. Hasnain
Sri B.P. Singh
1 All] Kailash Nath Shukla V. The Regional Asstt. Director (Basic), Gorakhpur & others
251
Sri Jitendra Ojha
S.C.

U.P. Basic Education Teachers Service
Rules
1981-Rule-5-Compassionate
Appointment-Petitioner's father working
as permanent Asstt. Teacher-in Junior
High School (Senior Basic School)-died in
harness on 5.5.82-7.3.87 appointed on
compassionate ground on Asstt. Teacher
in Primary School-13.1.96 appointment
of petitioner as Asstt. Teacher in junior
High School (Sanskrit) subsequent in
order
dated
16.03.96
diversion
of
petitioner from junior High School to
primary school-held proper-as the post
of Astt. Teacher in junior High School is a
promotional post-hence illegality has
been rectified.

Held: Para 20, 21

The
petitioner
was
entitled
to
be
appointed on the post of Assistant
Teacher
in
Junior
High
School
as
untrained
teacher
appears
to
be
misconceived for simple reason that the
post of Assistant Teacher in Junior High
School
(Senior
Basic
School)
is
a
promotional post, as such the petitioner
could
not
claim
his
compassionate
appointment on the said post. Besides
this, once he has accepted the post of
Assistant
Master
in
Primary
School
(Junior Basic School) of the Board in the
year 1987 on compassionate grounds he
can not claim again any higher post on
the same ground unless promoted on the
said post on his turn according to rules
of recruitment. So far as his appointment
on the post of Assistant Teacher in
Senior Basic School vide order dated
13.1.1996 made by the District Basic
Education Officer, is concerned, it was
illegally secured by the petitioner by
manipulation which too was for short
period and by subsequent order dated
16.3.1996 the petitioner has been again
posted at Primary School (Junior Basic
School)
as
Assistant
Teacher.
Thus
aforesaid illegality appears to have been
rectified.
That apart, it is also necessary to point
out that the petitioner has secured his
illegal appointment on compassionate
ground on the post of Assistant Master in
Senior
Basic
School
on
13.1.1996
contrary to the rules of recruitment,
which was rectified subsequently on
16.3.1996 by District Basic Education
Officer, the same view was reiterated
again by District Basic Education Officer
vide impugned order dated 27.1.1997,
thus in my considered opinion in such
situation writ jurisdiction of this court
under Article 226 of the Constitution of
India
cannot
be
invoked
by
the
petitioner to restore an illegal order of
District Basic Education Officer dated
13.1.1996 passed in his favour. The
aforesaid view also finds support from
the decision of Hon'ble Apex Court
rendered in Gadde Venkateswara Rao Vs.
Govt. of Andhra Pradesh, A.I.R. 1966 S.C.
828. The aforesaid decision is being
consistently followed by Hon'ble Apex
Court in M.C. Mehta Vs. Union of India,
A.I.R. 1999 S.C. 2583 (Pr. 18) and in
Canara Bank Vs. V.K. Awasthi J.T. 2005
(4) S.C. 40 (Pr. 18). Therefore in view of
aforesaid settled legal position and
further since the petitioner has already
been
enjoying
the
benefit
of
compassionate employment on the post
of Assistant Master in Primary School of
the
Board
by
virtue
of
his
such
appointment w.e.f. 7.3.1987, therefore,
no interference is called for in the
impugned order dated 27.1.1997.
Case law discussed:
AIR 1966 SC-828
J.T. 2005 (4) 40
AIR 1998 SC2230
1996 (3) UPLBEC-1974
J.T. 1997 (7) SC-324
AIR 1958 SC-282

(Delivered by Hon'ble Sabhajeet Yadav, J.)

The brief facts of the case are that the
father of petitioner namely Sant Bhawan
Shukla
was
a
permanent
Assistant
Teacher in Junior High School in District
252 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Padrauna run and controlled by Basic
Shiksha Parishad U.P., Allahabad, died in
harness
i.e.
during
the
course
of
employment on 5.5.1982. At the time of
his death no other member of family of
petitioner was in the employment to
relieve the family from financial hardship
and distress arose on account of death of
sole bread earner of the family. The
petitioner was also unemployed and has
possessed only Intermediate qualification.
According to him, he was eligible for
being appointed as an untrained teacher in
junior high school. The petitioner has
applied
for
his
compassionate
appointment under dying in harness rules
on the post of Asstt. Teacher in Junior
High School run by U.P. Basic Shiksha
Parishad
but
on
7.3.1987
he
was
appointed as Asstt. Teacher in Primary
School instead of Junior High School. In
pursuance thereof the petitioner joined the
post on 9.3.1987. It is alleged that State
Government has issued several orders
from time to time with regard to its policy
for compassionate appointment under
Dying-in-Harness Rules. In para 3 of such
Government Order dated 2.2.1996 it was
provided that the appointment of a
dependent of a deceased employee would
as possible as be made in the institution
on the post of Assistant Teacher where
the deceased had been working, and if no
post of Assistant Teacher is vacant in that
institution then in any other institution of
that district and in case there is absolutely
no vacancy in the district, then a
supernumerary post be created in the
school where the deceased employee had
been working and one dependent may be
provided employment on the post of
Assistant Teacher provided he is eligible
for being appointed on the said post. It is
stated that in view of clear-cut policy of
the Government, the petitioner was fully
eligible to be appointed as Assistant
Teacher in Junior High School, but
instead thereof he was appointed as
Assistant Teacher in Primary School
contrary to the policy of Government and
against the wishes of the petitioner. It is
further stated that on 13.1.1996 the Head
Master of a Junior High School of District
Padrauna made a request from District
Education Officer for appointing a teacher
in Junior High School on account of
transfer of four teachers from that school
elsewhere, there upon the District Basic
Education Officer, Padrauna vide order
dated
13.1.1996
made
temporary
arrangement appointing the petitioner in
Junior High School on the post of
Assistant Teacher (Sanskrit) Dandopur.
Subsequently thereafter another District
Basic Education Officer took over the
charge of office and passed an order on
16.3.1996
directing
the
petitioner's
posting in Primary School. Feeling
aggrieved against this order of posting
dated 16.3.1996 the petitioner made an
application before Basic Shiksha Adhikari
on 8.4.1996 requesting therein that he
may be given permanent appointment as
Assistant Teacher in Junior High Schools
instead of Primary School, in pursuance
of Govt.Order dated 2.2.1996. Thereafter
petitioner made several reminders to same
effect and ultimately he filed writ petition
No. 35512 of 1996, Kailash Nath Shukla
Vs. Regional Assistant Director, Basic
Education and others, which was disposed
of finally by this Court vide order dated
6.11.1996
with
the
direction
that
representation of petitioner may be
decided expeditiously. In pursuance of the
aforesaid order respondent no.2 has
decided the representation of petitioner
vide order dated 27.1.1997 whereby the
representation of petitioner has been
rejected, hence this petition.
1 All] Kailash Nath Shukla V. The Regional Asstt. Director (Basic), Gorakhpur & others
253
2. On behalf of respondents a detail
counter affidavit has been filed while
justifying the impugned order dated
27.1.1997, contained in Annexure-7 of the
writ petition. In this counter affidavit, the
stand taken by respondents before making
parawise reply of the writ petition, in para
4,5 and 6 of the counter affidavit are as
under:

"4. That it will further not be out of
place to submit before this Hon'ble Court
that there are 2 sets of institutions are
being running by the Board of Basic
Education. One is Junior Basic School
and other is Senior Basic School in which
only the post of Assistant Teacher/Master
in Junior Basic School is post of Direct
Recruitment (In respect of Gents) in
accordance with the procedure given in
rule 14 and 15 of the Basic Education
Teachers Services Rules 1981 whereas
the post of Assistant Teacher in Senior
Basic School or the post of Head Master
in Junior/Senior Basic School are the
promotional post in accordance with the
provisions given in rule 18 of the said
rules. The post of Assistant master in
Senior Basic School or the post of Head
Master in Junior/Senior Basic School
cannot be filled by way of direct
recruitment, which is clear in rule 5 of the
said rules.
For the kind perusal of this Hon'ble
Court a copy of the extract of Rule 5 of
the said rules is being filed herewith and
marked as Annexure C.A. II to this
affidavit.
Here many of the suitable candidates
for promotion from the post of Assistant
Teacher in Junior Basic School to the
post of Head Master in Junior Basic
School or, to the post of Assistant Teacher
in Senior Basic School are already
available and waiting even in District
Kushinagar itself and also in other
district of Province and therefore in view
of rule 5 of the said rules the petitioner
has got no merit at all and his writ
petition is liable to be dismissed with cost
on this ground alone.
5. That it will also be pertinent to
mention before this Hon'ble Court that the
petitioner is illegally claiming for his
Direct Recruitment as Assistant Teacher
in Senior Basic School on account of
misleading/misinterpreting
the
Government
order
dated
2.2.1996
(Annexure no.3 to the writ petition)
whereas in paragraph no.1 of the said
Government order itself it is clearly
mentioned that the said Government
order has been issued in respect of
Director Recruitment of Assistant Teacher
in Junior Basic School on compassionate
ground not in respect of any appointment
in Senior Basic School/Junior High
School. The word "USI VIDYALAYA"
(The same Institution) in paragraph no. 3
of the said Government order has been
given in respect of the location of the
Junior Basic School not in respect of
Senior Basic School.
A copy of the said Government order
dated 2.2.1996 is being filed herewith and
marked as Annexure no. C.A. III to this
affidavit.
6. That prior to issuance of said
Government order dated 2.2.1996 the
Government
has
already
issued
a
Government
order
dated
23.3.1990
directing to make the compassionate
appointment on the post of Assistant
Teacher in Primary Institution not in
Junior High School.
A copy of the said Government order
is also being filed herewith and marked as
Annexure no. C.A. IV to this affidavit.
From the perusal of the both said
orders also it is clear that the petitioner
254 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
has got no merit at all and his so called
claim is void abinitio and therefore the
writ petition is liable to be dismissed."

3.

Having
heard
the
rival
contentions of learned counsel of the
parties and from perusal of records, the
first question arises for consideration as to
whether the petitioner was entitled for
compassionate appointment on the post of
Assistant Master in Primary School
(Junior Basic School) or on the post of
Assistant Master in Junior High School
(Senior
Basic School) which is a
promotional post under relevant service
rules in schools run and controlled by
U.P. Basic Shiksha Parishad under Dyingin-Harness rules?

4. To find out complete and correct
answer to this question it is necessary to
examine the relevant provisions of Dyingin-Harness Rules and/or Govt. Orders
having material bearing on the issue under
which compassionate appointment under
aforesaid
rules
are
made
vis-Ã-vis
provisions of relevant service rules. In
this connection it is necessary to mention
here that U.P. Basic Education Teachers
Service Rules, 1981 is relevant service
Rules dealing with such appointments.
Rule-2 contains definition clause, which
defines and describes various expressions
employed and used under the rules. Rule2 (b) defines the expression "Appointing
Authority", in relation to teachers referred
to in Rule-3, means the District Basic
Education Officer. Rule-2 (c) defines the
expression "Basic School" which means a
school where instructions from class I to
class VIII are imparted. Rule-2(h) defines
expression "Junior Basic School" means a
Basic School where instructions from
class I to class V are imparted. Rule-2 (m)
defines the expression "Senior Basic
Schools", means where instructions from
class VI to class VIII are imparted. Rule-3
provides extent of applicability of rules
which is made applicable to all teachers
of Local Bodies transferred to the Basic
Education Board under Section 9 of the
U.P. Basic Education Act, 1972 and all
teachers employed for the Basic and
Nursery schools established by the Board.
Rule-5 provides sources of recruitment,
which reads as under:

"5. Sources of recruitment.- The
mode of recruitment to the various
categories of posts mentioned below shall
be as follows:
(a) (i) Mistresses
of Nursery Schools

 (ii)
Assistant
Masters
and
Assistant
Mistresses
of
Junior
Basic
Schools
By
direct
recruitment
as
provided in Rules
14 and 15;
Ditto
(b)
(i)
Head
Mistresses
of
Nursery Schools
(ii) Head Masters
and
Head
Mistresses
 of Junior Basic
Schools
(iii) Assistant
Masters of Senior
Basic Schools
(iv)
Assistant
Mistresses
of
Senior Basic
Schools
(v) Head Masters
of
Senior
Basic
Schools
(vi)
Head
Mistresses
of
By promotion as
provided in Rule
18;
Ditto

Ditto

Ditto

Ditto

Ditto
1 All] Kailash Nath Shukla V. The Regional Asstt. Director (Basic), Gorakhpur & others
255
Senior
Basic
Schools

Provided that if suitable candidates
are not available for promotion to the
posts mentioned at (iii) and (iv) above,
appointment may be made by direct
recruitment in the manner laid down in
Rule 15."

5. Rule-8 of Rules 1981 deals with
academic qualifications, sub-rule-3 of
which provides for minimum experience
of candidates for promotion to a post
referred to in clause (b) of rule-5, reads as
under:

"(3) The minimum experience of
candidates for promotion to a post
referred to in clause (b) of Rule 5 shall be
as shown below against each:

Post
Experience
(i) Head Mistress
of Nursery School
At least five years'
teaching experience
as
permanent
Mistress of Nursery
School.
(ii) Head Master
or Head Mistress
of
Junior Basic
School
and
Assistant
Master
or
Assistant
Mistress of Senior
Basic School.

At least five years'
teaching experience
as
permanent
Assistant Master or
Assistant Mistress of
Junior Basic School.
(iii) Head Master
or Head Mistress
of
Senior Basic
School.
At least three years'
experience
as
permanent
Head
Master
or
Head
Mistress of Junior
Basic
School
or
permanent Assistant
Master or Assistant
Mistress of Senior
Basic School, as the
case may be:

Provided that if sufficient number of
suitable
eligible
candidates
are
not
available for promotion to the posts
mentioned at serial number (ii) or (iii) the
field of eligibility may be extended by the
Board by giving relaxation in the period
of experience."

6. Rule-10 of Rules 1981 deals with
relaxation of rules which reads as under:

"10. Relaxation for ex-servicemen
and
certain
other
categories:-
Relaxation, if any, from the maximum
age-limit,
educational
qualifications
or/and any procedural requirements of
recruitment
in
favour
of
the
exservicemen, disabled military personnel,
dependents of military personnel dying in
action, dependents of Board's servants
dying in harness and sportsmen shall be
in accordance with the general rules or
orders of the Government in this behalf in
force at the time of recruitment."

7. Thus on plan reading of Rule-5
(a) of the rules, it is clear that the post of
Assistant Mistresses of Nursery Schools,
Assistant Master and Assistant Mistresses
of Junior Basic Schools are filled up by
direct recruitment as provided in Rule 14
and 15, rests of the posts including the
post of Assistant Master or Assistant
Mistresses of Senior Basic Schools
included in Clause (iii) and (iv) of rule
5(b) of the rules are filled by promotion as
provided under Rule-18. A proviso has
also been appended to the Rule-5(b) of
the rules which provides that if suitable
candidates are not available for promotion
256 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
to the posts mentioned at (iii) and (iv)
above, the appointment may be made by
direct recruitment in the manner laid
down in the Rule-15. Under Rule-8(3) of
the rules only those candidates would be
eligible for promotion on the post of
Assistant Master or Mistresses in Senior
Basic School who have atleast five years
teaching
experience
as
permanent
Assistant Master or Assistant Mistresses
of Junior Basic School. Rules-14 to 17
deals with procedure for preparation of
select list through direct recruitment.
Rule-18
provides
procedure
for
recruitment by promotion. The provisions
of the Rule-10 of the aforesaid rules, deals
some sort of relaxation of rules in favour
of certain category of persons including
dependents of Board's servants dying in
harness, only in respect of maximum age
limit, educational qualification and/or
other procedural requirement of rules of
recruitment in accordance of the general
rules or Government Orders issued in this
behalf at the time of recruitment.

8. Now coming to the relevant
Government orders referred by the
parties, it is to be seen that Govt. Order
No. 480/15-5-90-30/82 dated 23rd March,
1990
whereby
compassionate
appointment under dying in harness rules
are made applicable in respect of
dependents of teaching and non-teaching
employees of the Board, has been issued
under Section 13(1) of U.P. Basic
Education Act, 1972. It has statutory
sanction and backing. In para (1) of said
Govt. Order it is provided that one
unemployed
member
of
family
of
deceased employee died during the course
of employment may be appointed on the
post of Assistant Teacher in Primary
Schools of Board or non-teaching class III
and class IV post, on application made
provided such dependent is eligible and
possesses
minimum
qualification
prescribed for the post. The appointment
shall be made by relaxing the procedural
requirement of the rules of recruitment. In
para-2 of the said Govt. Order it is also
provided that untrained dependent of
deceased employee otherwise eligible and
qualified under U.P. Basic Education
Teachers Service Rules, 1981 would be
appointed on the post of Assistant
Teacher
or
Assistant
Mistresses
in
Primary School with the condition that
they shall obtain necessary training within
five years from the date of such
appointment and on acquisition of such
training his appointment shall be made on
regular basis. Although subsequent Govt.
Order dated 2.2.1996 has been issued by
superseding earlier Govt. Order dated
23.3.1990 but in the same manner under
the same provisions of the Act, 1972. The
provisions contained in para 1 and 2 of
the earlier superseded Govt. Order have
been reiterated in this Govt. Order also by
incorporating the same again with slight
variance in para 2 of the Govt. Order
whereby the untrained teacher is required
to obtain training within three years of
appointment. Other provisions of this
Govt. Order need no detail discussion at
this stage.

9. Thus from a close scrutiny of the
aforesaid
provisions
of
rules
and
Govt.Order it is clear that an eligible and
qualified dependent of deceased employee
can be appointed only on the post of
Assistant Master or Assistant Mistresses
in Primary School i.e. Junior Basic
Schools of the Board or on class III and
IV post of the Board, which is liable to be
filled up by direct recruitment. No such
appointment can be made against a post,
which is liable to be filled up by
1 All] Kailash Nath Shukla V. The Regional Asstt. Director (Basic), Gorakhpur & others
257
promotion. The post upon which the
petitioner
stakes
his
claim
for
appointment i.e. post of Assistant Master
in Senior Basic Schools is promotional
post and is liable to be filled up by
promotion of Assistant Teacher of Junior
Basic School under Rule-18 of the Rules,
1981. The recourse to fill up said post
through direct recruitment under the rule15 of the Rules 1981 can only be made in
a situation envisaged under the proviso to
rule-5 (b) of said Rules and only when the
candidates for promotion are not available
and in no other situation.

10. At this juncture an incidental
question arises for consideration is that
what are functions, object or purpose of
the proviso appended to rule 5(b) of the
said rules? In this regard it is necessary to
point out that it is well settled that a
proviso plays various role in different
situation depending upon the scheme
under lying the statute in question. In this
connection it would be useful to refer a
decision of Hon'ble Apex Court rendered
in
S.
Sundaram
Pillai
Vs.
V.R.
Pattabhiraman, AIR 1985 SC 582,
wherein Hon'ble Apex Court has dealt
with in detail the nature, object and
purpose of the proviso appended to a
statute by making references of several
juristic opinions and law laid down earlier
by the Apex Court in para 26 to 43 of the
decision. The observations made by
Supreme Court in para 26, 42 and 43 of
the decision are as under:

"26. The next question that arises for
consideration is as to what is the scope of
a proviso and what is the ambit of an
Explanation either to a proviso or to any
other statutory provision. We shall first
take up the question of the nature, scope
and extent of a proviso. The wellestablished rule of interpretation of a
proviso is that a proviso may have three
separate functions. Normally, a proviso is
meant to be an exception to something
within the main enactment or to qualify
something enacted therein, which but for
the proviso would be within the purview
of the enactment. In other words, a
proviso cannot be torn apart from the
main enactment nor can it be used to
nullify or set at naught the real object of
the main enactment.
42. We need not multiply authorities
after authorities on this point because the
legal position seems to be clearly and
manifestly well established. To sum up, a
proviso
may
serve
four
different
purposes:
(1) qualifying or excepting certain
provisions from the main enactment;
(2) it may entirely change the very
concept
of
the
intendment
of
the
enactment
by
insisting
on
certain
mandatory conditions to be fulfilled in
order to make the enactment workable;
(3) it may be so embedded in the
Act itself as to become an integral part of
the enactment and thus acquire the tenor
and colour of the substantive enactment
itself; and
(4) it may be used merely to act as
an optional addenda to the enactment
with the sole object of explaining the real
intendment of the statutory provision.
43. These seem to be by and large
the main purport and parameters of a
proviso."

11. Thus from the aforesaid settled
legal position, it is clear that proviso
appended to statute plays different role in
different situation depending upon the
scheme under lying the statute. Applying
the aforesaid principles enunciated by the
Apex Court, it is clear that proviso
258 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appended to rule 5 (b) of the rules 1981
carves out an exception to the enacting
provisions of statute and operates only in
situations envisaged under the proviso
itself, meaning thereby the post of
Assistant Master and Assistant Mistress in
Senior Basic School can be filled up
through direct recruitment in the manner
laid down in rule 15 of the rules, only if
suitable candidates are not available for
promotion to the said posts and in no
other situation. At this juncture it is also
necessary to point out that since the said
proviso has been employed as an
exception to the enacting part of the main
statute, therefore, the same cannot be
construed to nullify the main provisions to
which it is an exception or set at naught
the real object of main enactment. Thus,
there can be no scope for doubt to hold
that the said proviso has to play a role
within the limited field assigned to it by
rule making authority. It cannot be
utilized to achieve an object different and
alien to the purpose contained in the
proviso itself. In my considered opinion
such situation can arise and be satisfied
only when the claim of all the eligible and
qualified persons entitled for promotion
under rule 5 (b) read with rule 8(3) of the
Rules are considered for promotion
according to procedure provided under
rule 18 by selection committee constituted
under rule-16 for promotion as required
under the aforesaid rules and thereafter if
it is found as fact that suitable persons are
not available even by taking recourse of
the proviso of Rule 8 (3) whereby
relaxing the period of experience also
only, in that situation alone the proviso
appended to rule 5 (b) of the rules can be
pressed into service. Taking different and
contrary view in the matter and permitting
the authority concerned to take recourse
of proviso appended to rule 5 (b) of the
Rules
without
undertaking
aforesaid
exercise would render main provision of
rule 5 (b) together with rule 8(3)
redundant and it would also unduly
interfere with the rights of persons
eligible,
qualified
and
entitled
for
promotion inasmuch as open the gate of
favourtism and corruption rampant in the
public life. Therefore, before coming to
such conclusion that suitable candidates
for promotion are not available to the post
mentioned at (III) and (IV) under rule 5
(b) of the Rules, the authority entrusted
with the function must strictly comply and
adhere to the aforesaid rules.

12. Now coming to the provisions
contained in rules-10 of Rules 1981 it is
clear that said rule has also limited scope
of relaxation of the rules only to the
extent indicated thereunder which in
clearest term stipulates, in respect of
maximum
age
limit,
educational
qualification
and
other
procedural
requirement of the rules of recruitment.
Thus from the perusal of rule 10 of the
aforesaid Rules there appears no difficulty
in understanding the true import of rules
of relaxation regarding the maximum age
limit,
educational
qualification
in
common and legal parlance both but so
far as the expression "other procedural
requirement of rules of recruitment" is
concerned
it
requires
some
more
clarification by way of interpretation to
find out true intent and import of the
expression. In this connection it is
necessary to point out that procedure for
recruitment consists of several steps,
normally it starts from advertisement of
vacancy in daily newspapers having wide
circulation
and
asking
names
of
candidates from employment exchange.
Sometime selection also consists of
preliminary examination and thereafter-
1 All] Kailash Nath Shukla V. The Regional Asstt. Director (Basic), Gorakhpur & others
259
main examination and in the main
examination
too
written
test
and
interview. Having regard to the scheme of
statute
for
providing
compassionate
appointment, such long drawn process of
selection would naturally cause undue
delay
in
providing
compassionate
employment under Dying in Harness
Rules, therefore, in order to avoid undue
delay and shorten the process in holding
selection for compassionate appointment
the aforesaid procedural requirement of
recruitment can be relaxed by general
rules or government orders issued in this
behalf. Thus the relaxation of "procedural
requirement of rules of recruitment"
should be understood in the parameters
stated herein above.

13. Now another incidental question
arises as to whether the provisions
regarding the source of recruitment
contained in rule 5 of the rules are
procedural or substantive in nature and
would be covered under rule-10 or not? In
this connection it is necessary to be
pointed out that the provisions regarding
the source of recruitment confer certain
rights and benefit in favour of certain
persons entitled to be considered for
appointment on the post in question either
by way of direct recruitment or through
promotion, therefore, being basic and
fundamental rules of recruitment it cannot
be said to be procedural in nature rather it
would be of substantive in nature. Since
the provisions of rule-5 are substantive in
nature, hence it cannot be covered under
rule-10 for the purposes of the relaxation
of rules of recruitment. Thus the scope of
rule-10 has to be limited only to the extent
of
situations
envisaged
under
the
aforesaid rules indicated herein before
and in no other situation.

14 In this connection it would be
useful to refer some decisions of Hon'ble
Apex Court, wherein the question of
appointment
under
Dying-in-Harness
Rules vis-Ã-vis rules regarding relaxation
of rules of recruitment was under
consideration. In Hira Man Vs. State of
Uttar Pradesh, J.T. 1997 (7) S.C. 324
Hon'ble Apex Court while considering the
scope of rules 4 and 5 of U.P.
Recruitment
of
Dependents
of
Government servant Dying-in-Harness
Rules, 1974 has held that overriding
effect which is given to the rules in
respect of procedure for selection for
appointment on the post for which the
dependent makes an application should
not be read in isolations but it should be
read in context of rule 8 of the aforesaid
Rules, which deals with the situations
under which Rules of Recruitment is
relaxed. The Apex Court has rejected the
claim of compassionate appointment of
respondent no. 4 even on class III posts
falling in the quota of promotion of
appellant therein. For ready reference para
9 of the decision of Hon'ble Apex Court is
reproduced as under:

"9. Rule 5 imposes an obligation on
the State Government to give suitable
employment to the dependent of the
deceased Government servant in the State
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
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
260 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 of the rules, viz., to provide
immediate secure 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 is to be filled up by
following the prescribed procedure under
the normal recruitment rules and to
compete with others, the object of the
rules would get frustrated. Therefore,
such appointment 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
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 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 respects, then it would have been
unnecessary
for
it
to
provide
for
relaxation of the normal recruitment rules
in rules 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 appointment under the
said rules. Sub-rule (2) dispenses with the
requirements 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 it we read rules 4, 5 and 8
together, it becomes clear that overriding
effect which is 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 member must fulfill the
educational qualifications prescribed for
the post and 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 the appointing
authority to interview the candidate in
order to satisfy itself that the candidate
will be able to maintain the minimum
standard of work and efficiency expected
on the post. If the rules are construed in
this manner, and so we do the contention
raised on behalf of the respondents that
notwithstanding the fact that the post of
clerk which 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."

15. In State of Bihar and others
Vs. Samsuzzoba, (1996) 3 UPLBEC
1974, Hon'ble Apex Court has held that
candidates under Dying in Harness Rules
have no vested right to be appointed on
higher
post
according
to
the
1 All] Kailash Nath Shukla V. The Regional Asstt. Director (Basic), Gorakhpur & others
261
qualifications. In para 4 of the decision
Hon'ble Apex Court has held as under:

"4. The question that arises for
consideration is whether the High Court
is right in giving directions to appoint
them afresh or give them promotion? It is
not in dispute that there is no right vested
in
the
candidates
for
particular
appointment on compassionate grounds.
The State had taken policy decision to
appoint all the candidates irrespective of
the qualifications as Class IV post and,
therefore, the committee consisting of the
Secretary,
Addl.
Secretary
and
the
Registrar met and decided the principle
that all the available posts in Class IV
should
be
made
available
to
the
candidates in the awaiting list for
appointment on compassionate grounds.
12 posts available in Class III were
reserved for appointment by promotion to
the Class IV candidates who were entitled
thereto as per the rules. The Principle
adopted by the Government cannot be
said
to
be
unjustified
or
illegal.
Undoubtedly, some candidates had gone
to the Court and obtained orders and in
compliance thereof, at pain of contempt
petition, the Government, instead of
appointing them to Class IV posts since
by then the Class III posts were not
available, upgraded Class IV post as
Class III post and confirmed them as
Class III employees. That order which
was wrongly made by the High Court
cannot be a base in issue directions. In
other words, if the directions are
complied with all the Class IV posts
would be converted into Class III posts
which is against the discipline of the
service. The High Court, therefore, was
not justified in issuing directions in all the
cases for appointment to Class III."

16. In Director of Education
(Secondary) Vs. Pushpendra Kumar,
reported in AIR 1998 Supreme Court,
2230: (1998 All LJ 1525 at p. 1529),
while taking note of the earlier decision of
the Apex Court rendered in the case of
Umesh Kumar Nagpal v. State of
Haryana, reported in 1994(4) SCC 138:
(1994 AIR SCW 2305) in paragraph 8 of
the judgment it was observed that -

"The object underlying a provision
for grant of compassionate employment is
to enable the family of the deceased
employee to tide over the sudden crisis
resulting due to death of the bread earner
which has left the family in penury and
without any means of livelihood. Out of
pure humanitarian consideration and
having regard to the fact that unless some
source of livelihood is provided the family
would not be able to make both ends
meet, a provision is made for giving
gainful appointment to one of the
dependents of the deceased who may be
eligible for such appointment. Such a
provision makes a departure from the
general
provisions
providing
for
appointment on the post by following a
particular procedure. Since such a
provision enables appointment being
made
without
following
the
said
procedure, it is in the nature of an
exception to the general provisions. An
exception can not subsume the main
provision to which it is an exception and
thereby nullifies the main provision by
taking
away
completely
the
right
conferred by the main provision.