IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.2162 (S/S) of 2001 Lokesh Joshi S/o Jeevan Chandra Joshi . .……… Petitioner Versus District Judge, Pithoragarh ……… Respondent Hon’ble Tarun Agarwala, J. Heard Mrs. Pushpa Joshi, the learned counsel for the petitioner and Shri Sharad Sharma, the learned Senior Counsel duly assisted by Siddhartha Sah, the learned counsel for the respondent. The petitioner’s father was employed in the Civil Court, Pithoragarh as a Central Nazir and died in harness in the year 1994. The petitioner was a minor at that time. Upon attaining the age of majority, the petitioner applied in the year 1997 which application was considered and rejected by the District Judge, Pithoragarh by its order dated 17th September, 1999. The petitioner, being aggrieved by the said order, has preferred the present writ petition. The District Judge rejected the application of the petitioner on the ground that the mother of the petitioner was working as an Assistant Teacher in Primary School, Takana in District Pithoragarh and was getting about Rs.6,500/- per month plus family pension and that she also had a dwelling house left by the deceased. The learned counsel for the petitioner submitted that the petitioner is not dependent on her mother and that he is living separately and is surviving by doing tuition and, therefore, was 2 entitled to be considered under the dying in harness rules. An affidavit of the petitioner’s mother has also been filed in which she has reiterated that her son is not living with her. Be that as it may. The mere fact that the petitioner is not residing with her mother is irrelevant for the purposes of consideration of appointment on compassionate ground under the dying in harness rules. Section 5 of the U.P. Recruitment of Dependants of Government Servants Dying In Harness Rules, 1974, which is applicable to the present case, is relevant for the purpose of adjudication of the present dispute. Section 5 of the said rules is extracted 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 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 3 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.] A perusal of the aforesaid rule indicates that where Government servant dies in harness and the spouse of the Government servant is not employed under the Central Government or a State Government or a Corporation in that case one member of the deceased family could be considered for employment in Government service. In the present case, it has come on record and it is admitted by the petitioner that his mother and spouse of the deceased is employed and working as an Assistant Teacher in Primary School, Takana in District Pithoragarh. In view of the aforesaid, the petitioner is not entitled to be considered for appointment under the dying in harness rules. Consequently, the impugned order does not suffer from any error of law. The writ petition fails and is dismissed. (Tarun Agarwala, J.) Dated 23.12.2009 Shiv