HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 25 of 2003 (SS) Neeraj Kumar Gupta S/o late Satya Prakash Gupta Sheron Wali Haveli, Kankhal, District Haridwar ……… Petitioner Versus District Judge, Haridwar ………… Respondent Sri V.K. Bisht, Sr. Advocate for the petitioner Sri Sharad Sharma, Advocate for the respondent. Dated: 5.5.2006 Hon’ble Rajesh Tandon, J. Heard Sri V.K. Bisht, Sr. Advocate counsel for the petitioner and Sri Sharad Sharma counsel for the respondent. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 20.12.2002 passed by the respondent and further a writ of mandamus directing the respondent to appoint the petitioner on class III post. Briefly stated the father of the petitioner late Sri Satya Prakash Gupta was working as Daftri in District Judge Court, Haridwar who died in harness on 1.3.2002. The petitioner made an application on 16.3.2002 before the respondent for his appointment on compassionate ground. On 5.6.2002 respondent passed the order asking him to complete the formalities. On 19.6.2002 the petitioner filed an application 2 requesting the respondent to appoint on a Class III post as he is qualified for Class III. On 22.6.2002 respondent has passed the order appointment the petitioner on class IV post. On 16.11.2002 the petitioner submitted the representation before the respondent for appointing him on the class III post. Thereafter, on 1.1.2003 the petitioner was informed that his representation- dated 16.11.2002 has been rejected by the respondent on 20.12.2002. Accordingly to the petitioner there are still some vacant posts in Class III in the judgeship and he may be given appointment against one of these posts. Counter affidavit has been filed on behalf of the respondent and it has been asserted that the petitioner has joined as class IV employee on 26.6.2002 while vacancy in class III cadre was created on 31.12.2002. There was no occasion for adjusting the petitioner against the said post because he was already holding a post in Class IV, under the Dying in Harness Rules. Rules 5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules 1974, provides the entitlement of the petitioner to get the employment. Rule 5 of the said Rules is quoted below: 5. Recruitment of a member of the family of the deceased-(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employment under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State 3 Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person- (i) fulfils the educational qualifications prescribed for the post. (ii) is otherwise qualified for Government service, and (iii) makes the application for employment within five years from the date of the death of the Government servant. Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement, as it, may consider necessary for dealing with the case in a just and equitable manner. Under the provisions of Rule 5, the dependant of a deceased employee is entitled for the appointment on a post according to his qualification. It is not the sweet will of the appointing authority to give appointment either on class III post or class IV. The counsel for the petitioner relied upon the observation made by a Division Bench of Allahabad High Court in a similar case in 1994 (24) A.L.R. 11 Rajesh Kumar Morya vs. District Judge, Varanasi & others (II C.) and has observed as under: 4 tuin U;k;k/kh’k }kjk tks vk/kkj ;kph dh fjV ;kfpdk dk fojks/k djds fy;k x;k gS ;g vk/kkj fof/klEer ugh gS fu;ekoyh ds fu;e ‡ dk fuoZpu U;k;ky; us cgqr ls fu.kZ;ksa esa fd;k gSA mijksDr fu.kZ;ksa esa U;k;ky; us ;g vo/kkfjr fd;k gS fd fu;ekoyh ds fu;e ‡ ds vUrxZr vH;FkhZ viuh ;ksX;rk ds vuq:i in ij fu;qfDr fd;s tkus dk vf/kdkjh gSA fu;qfDr vf/kdkjh bl ckr ds fy, LorU= ugh gS fd ;fn vH;FkhZ r`rh; Js.kh ds deZpkjh ds inksa dh ;ksX;rk j[krk gS rks mldks prqFkZ Js.kh deZpkjh ds :i esa fu;qDr djs A fjV ;kfpdk la0 „†Š‰0 o”kZ ƒ‹‹ƒ jkds’k jk; cuke funs’kd ek/;fed f’k{kk ,oa vU; ¼fu.khZr fnukad „‹-Š-‹„½ esa bl U;k;ky; us fuEuor fu.kZ; fd;k gS% “In the instant case, when the petitioner is entitled to be appointed and possessed requisite qualification for a class III post, there is no plausible justification to keep his appointment pending on the ground that post in class III is vacant. If no suitable post is there, it has to be created to adjust the petitioner.” • ***************************** • bl U;k;ky; ds fu.kZ; jkts’k flag ¼mijksDr½ ds vk/kkj ij deZpkjh dh e`R;q lEcU/kh vkink vius ij inl`tu Lo;a gks tkrk gS vkSj tc rd dksbZ in fjDr u gks rc rd vf/kla[; l`ftr in ij e`rd ds vkfJr dks mDr in ij lek;ksftr fd;k tkuk pkfg,A In view of principle of law enumerated above, the respondent was not justified in appointing the petition in class IV post, whenever he possess requisite qualification for class III post. The respondent has acted arbitrarily by holding that the petitioner was only entitled to get class IV post on which his father was employed. The order passed by the respondent rejecting the representation of the petitioner is against the law as well as various Government orders issued from time to time regarding appointment on compassionate ground. 5 In view of above, a writ of certiorari is issued quashing the order-dated 20.12.2002 passed by the respondent. The respondent is directed to appoint the petitioner in a class III post within a month after obtaining certified copy of this order. Accordingly, the writ petition is allowed. No order as to costs. Dated: 5.5.2006 Rajesh Tandon, J.