HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.7136 of 2001 (S/S) Smt. Parvati Devi W/o late Kotwal Singh … Petitioner Versus The State of Uttarakhand & others … Respondents Dated:- 23rd April, 2010 Hon’ble Tarun Agarwala, J. Heard Sri U. P. S. Negi, the learned counsel for the petitioner, Sri Subhash Upadhyaya, the learned Brief Holder for the State of Uttarakhand and Smt. Beena Pandey, the learned Standing Counsel for the State of Uttar Pradesh. 2. The petitioner’s husband was working as a Peon in the Revenue Department of District Pauri Garhwal and died in harness on 08th July, 1993. The petitioner applied in the year 1994 for an appointment of her son on compassionate grounds. In this application, it was stated that the petitioner’s son was a minor. The District Magistrate, Pauri Garhwal by an order dated 01st June, 1994 held that no appointment could be issued unless her son reaches the age of 18 years and directed the petitioner to apply afresh upon her son reaching the age of majority and further assured the petitioner that the appointment on compassionate grounds would be made at that stage. On 28th June, 1999, the petitioner moved an application before the District Magistrate indicating that her son Ravindra Singh would attain the age of 18 years on 01st July, 1999 and, therefore, requested the authority to appoint her son on compassionate grounds under the Dying in Harness Rules. The District Magistrate by an order dated 05th October, 1999 referred the matter to the State Government as the application was moved beyond 5 years. When no response was made by the District Magistrate, the petitioner approached the Commissioner, who by an order dated 10th May, 2000 directed the District Magistrate to proceed with the process of appointment under the Dying in Harness Rules. Inspite of such direction, no action was made and, eventually, the petitioner filed the present writ petition in the year 2001 seeking a writ of mandamus commanding the respondents to appoint the petitioner’s son on compassionate grounds. 2 3. The State of Uttar Pradesh has not filed any affidavit. The counter affidavit filed by the State of Uttarakhand only indicates that the application of the petitioner is belated since it was made after six years from the date of the death of petitioner’s husband and, therefore, no relief can be granted. 4. Under Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, a dependant of a government servant could file an application for employment on compassionate grounds within five years from the date of the death of government servant. Under the proviso to Rule 5, an application beyond five years could be entertained, but, in that case, the delay can only be condoned by the State Government. Admittedly, the first application was moved by the petitioner in the year 1994 and the same was returned by the District Magistrate by an order dated 01st June, 1994 directing the petitioner to move an appropriate application upon his son reaching the age of majority. This fact has not been denied by the respondents in their counter affidavit. The petitioner’s son reached the age of majority on 01st July, 1999 and an application was moved two days before on 28th June, 1999. In paragraph 8 of the writ petition, it has been stated that the District Magistrate referred the application to the State Government for condoning the delay. This fact has not been denied by the respondents in paragraph 7 of their counter affidavit. The only ground taken by the respondents is that the application filed by the petitioner is belated by one year and, therefore, the application for appointment on compassionate grounds cannot be entertained. 5. In my view, the stand taken by the respondents is patently misconceived. Under Rule 5 of the Rules of 1974, an application beyond five years could always be entertained and it is upon the State Government to see as to whether the application was bonafide and should be condoned or not depending on the case and hardship of an individual person. 6. This Court finds that the District Magistrate by an order dated 07th July, 2000 had referred the application of the petitioner for appointment on compassionate grounds to the Special Secretary, Revenue Dept., State Government of Uttar Pradesh. The State of 3 Uttarakhand was created on 09th November, 2000 and, consequently, the petitioner’s application remained pending on account of the creation of the State of Uttarakhand. 7. In view of the aforesaid, the writ petition is allowed. A mandamus is issued to the District Magistrate, Pauri Garhwal respondent no.3 to refer the petitioner’s application dated 28th June, 1999 to the appropriate department of the State Government of Uttarakhand within two weeks from the date of production of the certified copy of this order. The State Government of Uttarakhand is, thereafter, directed to decide the petitioner’s application for condoning the delay, if any, within three months thereafter. If the delay is condoned, the District Magistrate will decide the petitioner’s application of the petitioner on merits within another six weeks from the date of communication of the order of the State Government. (Tarun Agarwala, J.) Dated 23.04.2010 LSR