Judgment:
Sudhir Narain, J.
1. The petitioner seeks writ of mandamus commanding the respondents to create supernumerary Class III post for his appointment on compassionate ground.
2. The facts, in brief, are that the father of the petitioner Late Uttam Kumar Mishra was working as a Lecturer in Commerce in Puwayan Inter College, Puwayan, district Shahjahanpur. He died in-harneas on 28.11.1995. The petitioner applied for appointment on compassionate ground stating therein that he has passed Intermediate examination and also completed his B.A. Part 1 examination. The Manager of the institution is alleged to have issued appointment letter on 15.9.1997 appointing him as Class III employee in the institution. The papers were forwarded to the District Inspector of Schools, Shahjahanpur, respondent No. 4, He sent a letter dated 19.9.1997 to the Manager of the institution intimating him that the Government, by its order dated 16.8.1996, had directed to create supernumerary Class IV post and not Class III post and, therefore, the appointment, if made, to Class III post may be withdrawn. The Government Order dated 16.8.1996 (Annexure-13 to the writ petition) provides that if Class III posts are not available, supernumerary post be created for Class IV post but not for Class III post.
3. The core question is whether mandamus can be issued commanding the respondents to create supernumerary Class III post. The appointment oncompassionate ground is made to enable the family to tide over the sudden crisis on the death of the deceased employee who was a bread earner in the family. If the post is not available a supernumerary post is to be created. In Smt. Sushma Gosain and others v. Union of India and others. AIR 1989 SC 1976, wherein the widow of the deceased employee made application for appointment on the death of her husband in the year 1982 but she was not given appointment for many years, the Court directed that if there is no suitable post for appointment, supernumerary pus! be created to accommodate the applicant with the following observation :
'We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. 11 is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant,'
4. In Smt. Phoolwati v. Union of India and others, AIR 1991 SC 469, the direction was given by the Apex Court relying upon the decision of Smt. Sushma Gosain's case (supra), for employing the applicant in that case on a suitable post commensurate with her educalional qualification. The test, when Class III or Class IV post or such other supernumerary post has to be created, was considered in Umesh Kumar Nagpal v. State of Haryana and others, JT 1994 (3) SC 525. wherein it was held that if the object of granting compassionate employment is to enable the family to tide over the sudden crisis, as a rule, appointments in public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any consideration is permissible. There are certain exceptions and one such exception is in favour of dependent of an employee dying-in-harness and leaving his family in penury and without any means of life. The posts in Class III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds :
'In such cases, out of pure humanitarian consideration taking into consideration 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 in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Class III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency.'
5. The Government has decided to create supernumerary Class IV post. The direction given by the Government Order dated 16.8.1996 is not in contravention of the principle laid down by the Apex Court referred to in Umesh Kumar Nagpal's case (supra).
6. Learned counsel for the petitioner has placed reliance upon the decision in Rajesh Singh v. Director of Education, Allahabad and another. (1991) 1 UPLBEC 345, wherein it was held that when the employee dies-in-harness and his dependant claims the post according to his qualification, if thequalifications were such where he can be appointed on Class III post, supernumerary Class 111 post has to be created under Rule 5 of U. P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, The Court was not considering as to when mandamus can be issued for creating a Class III supernumerary post when the Government has itself taken decision not to create supernumerary Class III post. The petitioner further relies upon unreported decision of this Court in Navin Kumar Upadhyaya v. Director of Education (Secondary) and others, Writ Petition No. Nil of 1993, decided on 17,5.1993, wherein a direction was given that the petitioner therein, who was qualified for appointment to Class 111 post, should be given appointment to that post. In this case, the question of creation of supernumerary Class 111 post, keeping in view the G.O. dated 16.8.1996, was not considered.
7. The petitioner has passed Intermediate examination and it is stated that he has completed B.A. Part I examination. In case Class III post fails vacant, he can apply for appointment to the said post. The Selection Committee will consider his application and can give preference in the matter of employment. He cannot claim further any right to be appointed on Class III post on compassionate ground alone.
8. In view of the above discussion, the writ petition is dismissed subjectto the observation made above.