IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case WRIT PETITION NO. 434 of 2009 SS Ajay Kumar Versus State of Uttarakhand and others Approved for reporting -------------------------------- Not approved for reporting Date of Decision : 04.11.2009 Initial of Judge (Sudhanshu Dhulia, J.) IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 434 OF 2009 (SS) Ajay Kumar …………Petitioner. Versus State of Uttarakhand and others. ……..Respondents. Mr. Amish Tiwari, Advocate for petitioner. Mr. N.P. Sah, Standing Counsel for State of Uttarakhand/respondents. 4th November, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Mr. Amish Tiwari, Advocate for petitioner and Mr. N.P. Sah, Standing Counsel for State of Uttarakhand/respondents. This writ petition has been filed by the petitioner claiming appointment under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (from hereinafter referred to as “Dying in Harness Rules”). The case of the petitioner is that his father, who was a permanent employee of Government of Uttarakhand and was working as a Sweeper in the Department of Medical, Health and Family Welfare, Bageshwar, died in harness on 29th July, 2008. The deceased Kallu Ram i.e. father of the petitioner had left behind his wife Smt. Munni Devi and the petitioner. Apart from aforesaid two, another son is namely Rohit, who is minor and daughter namely Poonam. Apart from the aforesaid, the eldest son of the deceased namely Anil Kumar is living separately and he is employed. The department, however, vide order dated 6.11.2008 rejected the application for appointment of the petitioner on compassionate ground stating that the appointment of the petitioner is not covered under Dying in Harness Rules. Aggrieved, the petitioner has filed present writ petition. In the counter affidavit, which the State has filed, they have relied upon Rule 5 of the Dying in Harness Rules, which reads as follows: “[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 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.” Now the contention of the State is that since elder brother of the petitioner namely Anil Kumar is a Government employee, therefore, the petitioner cannot be granted appointment on compassionate ground under Dying in Harness Rules. This argument of the State Counsel is totally misconceived inasmuch as Rule 5 only states that such an appointment shall not be given in case the spouse of the deceased is already employed in the Government service. It is not the case, where the spouse of the deceased was employed in Government service. One who is employed in the Government service is the son of the deceased, who is presently living separately and merely because one of the sons of the deceased is employed, it cannot be a ground of denying the employment to the petitioner. The only restriction is that such son or daughter shall not be given appointment, under the Dying in Harness Rules. Moreover, what further goes in favour of the petitioner is the report of the District Magistrate, Bageshwar dated 8th December, 2008, who had conducted an inquiry on his own level and has found that after the death of the deceased Kallu Ram, his family is living in hardship. The eldest son of the deceased is living separately and is not supporting the family (the one who is employed). As such the son of the deceased should be given an appointment on compassionate ground under Dying in Harness Rules and the appointment of the petitioner was recommended. Therefore, it is a case where the family of the deceased is living in hardship. It is also an admitted fact that the deceased died during harness. The State has objected the appointment of the petitioner on compassionate ground and has relied upon Umesh Kumar Nagpal Vs. State of Haryana and others reported in (1994) 4 SCC 138, where the Apex Court has observed as under: “The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post must 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…” However, the facts are not applicable to the present case inasmuch in the present case not only the application was filed promptly for appointment on compassionate ground but also there is a report of the District Magistrate, which shows that the family of the deceased is living in hardship. The facts of the case referred above are not applicable in the present case. The writ petition is, therefore, allowed. The impugned order dated 6.11.2008 passed by the respondent no. 3 is quashed. The Director General of Medical, Health and Family Welfare, Dehradun is directed to immediately give appointment to the petitioner on compassionate ground under Dying in Harness Rules on the post of Sweeper in the Medical, Health and Family Welfare Services. (Sudhanshu Dhulia, J.) 04.11.2009 Rathour