IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 186 of 2008 Regional Manager, Uttarakhand Transport Corporation & another. .……… Appellants Versus Vinod Kumar & another. .………. Respondents Mr. D.C.S. Rawat, Advocate for the appellants. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) Since Respondent No. 1 had not been appointed on compassionate grounds under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (herein after referred to as “Rules of 1974), he approached this Court by filing Writ Petition (S/S) No. 4325 of 2001. The aforesaid writ petition was allowed by a learned Single Judge of this Court on 30.04.2008. The order passed by this Court, allowing Writ Petition (S/S) No. 4325 of 2001, has been assailed through the instant Special Appeal. 2. The solitary contention advanced by the learned counsel for the appellants during the course of hearing of the instant appeal was, that the appointment of respondent No. 1 on compassionate grounds, under the Rules of 1974, could not have been granted by this Court, in view of the delay at his hands in making a request for appointment on compassionate grounds. 3. In order to deal with the contention advanced by the learned counsel for the appellants, it is necessary to refer to the factual background of the present controversy. The father of respondent No. 1-Vinod Kumar was engaged with the U.P. State Road Transport Corporation as an Assistant Mechanic. He died in harness in 1981. At the time of the death of his father, respondent No. 1 could not have raised a claim for appointment on compassionate grounds in view of the fact, he was then a minor. In this 2 respect, it would be pertinent to mention, that the date of birth of respondent No. 1 is admittedly 25.08.1976. He would, therefore, attain the age of majority on 25.08.1994. 4. Having attained the age of majority, respondent No. 1 moved a representation dated 07.08.1995, claiming appointment on compassionate grounds under the Rules of 1974. The relevant rule, insofar as the present controversy is concerned, is Rule 5 of the Rules of 1974. Rule 5 is accordingly being extracted hereunder: “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 employed 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 Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, 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. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death. (3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government Servant who are incapable for their own maintenance and were dependent of the abovesaid deceased Government servant immediately before his death.” 5. Rule 5(1)(iii) mandates, that an application for employment on compassionate grounds should be received within five years from the date of death of the Government employee. Admittedly, the application filed by respondent No. 1, claiming compassionate appointment, was well after the 3 expiry of the prescribed period of five years. It is, however, pertinent to mention, that under the proviso to Rule 5(1)(iii), it is open to the State Government to relax the requirement of submission of the application within the time stated herein above, in a just and equitable manner, where rejection of employment would cause undue hardship in a particular case. Accordingly, it is open to the State Government to deal with an application in a just and equitable manner. 6. Despite the delay in filing the representation for claiming appointment on compassionate grounds, the claim of respondent No. 1 was duly considered by the Selection Committee constituted under the Rules of 1974, wherein respondent No. 1 was invited for an interview on 08.03.1996. After having been interviewed, respondent No. 1 was informed through a communication dated 18.03.1996, that his name had been placed at Serial No. 1 of the list prepared for appointment of eligible candidates under the Rules of 1974. The very fact, that the name of respondent No. 1 was placed at Serial No. 1 by the Selection Committee reveals, that it was a case of extreme undue hardship, well beyond the cases of others, whose claims were being considered for compassionate appointment. Had that not been so, his name would not have been placed at Serial No. 1 by the Selection Committee. Having considered the claim of respondent No. 1 for compassionate appointment and having issued communications to him, informing him that his name had been placed at Serial No. 1 by the Selection Committee, we are satisfied, that the State Government had exercised its discretion in favour of respondent No. 1, in terms of the proviso under Rule 5(1)(iii). Thereafter, it was not open to the appellants to contest the appointment of respondent No. 1 on compassionate grounds, arising out of delay in filing the request for appointment under the Rules of 1974. 7. For the reasons recorded herein above, we find no merit in the solitary contention advanced by the learned counsel for the appellants. 8. The instant special appeal is accordingly dismissed. Since the instant special appeal has been disposed of on merits, it is not necessary to pass 4 any formal orders disposing of the application for condonation of delay filed on behalf of the appellants. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 15.02.2010 15.02.2010 G