IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 142 of 2009 State of Uttarakhand and others …Appellants. Versus Ved Prakash Kala …Respondent. Mr. H.M. Raturi, Advocate for the appellants. Mr. Rakesh Thapliyal, Advocate for the respondent. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) 1. The father of the respondent i.e. Sri A.P. Kala, was working in the Department of Health and Family Welfare as a senior clerk. He died in harness on 28.1.1974. It is, therefore, apparent that he died while the Department of Health and Family Welfare was in the composite State of Uttar Pradesh. 2. The respondent Ved Prakash Kala was born posthumously on 5.6.1974 i.e. four months after the death of his father. The respondent’s mother is stated to have informed the appellants, that her son being a minor, should be allowed appointment on compassionate grounds after attaining the age of majority. The instant pleadings, however, reveal that the respondent’s mother i.e. the widow of Sri A.P. Kala did not seek appointment on compassionate grounds on her own account. 3. The respondent attained the age of majority on 5.6.1992. It is the case of the learned counsel for the respondent that he applied for appointment on compassionate grounds on 1.9.1993. The instant claim was raised by the respondent almost twenty years after the death of his father. Although there seem to have been some recommendations made in favour of the claim raised by the respondent, yet the competent authority vide an order dated 17.9.2002 declined the claim of the respondent for appointment on compassionate grounds. It is, therefore, that the respondent approached this Court by filing Writ Petition (S/S) No. 1440 of 2002. By the time the instant writ petition was filed 28 years had passed by since the death of the father of the respondent in harness. 4. Despite the fact that the appellants contested the claim raised by the respondent for appointment on compassionate grounds on account of delay, a learned Single Judge of this Court relying on the proviso under Rule 5 (1) of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the 1974 Rules) allowed the writ petition by setting aside the impugned order dated 17.9.2002. The learned Single Judge required the authorities to reconsider the claim of the respondent by ignoring the delay at the hands of the respondent in approaching the authorities for claiming appointment on compassionate grounds. The learned Single Judge recorded the aforesaid conclusion, on account of the fact that the respondent had raised the claim for appointment on compassionate grounds immediately on attaining the age of majority. In sum and substance, it was concluded that the period during which the respondent had remained a minor deserved to be condoned. 5. Writ Petition (S/B) No. 1440 of 2002 was allowed on 29.4.2008. The order dated 29.4.2008 has been assailed by the appellants through the instant special appeal. 6. We have heard learned counsel for the rival parties. The solitary contention advanced by the learned counsel for the appellants is, that the concession of appointment on compassionate grounds is available to an individual who has been subjected to extreme financial hardship on account of, the sudden and unexpected death of the sole bread-winner of the family, in harness. It is submitted, firstly, that the pleadings recorded in the writ petition at the hands of the respondent do not disclose any financial hardship. Secondly, it is submitted, that appointment on compassionate grounds cannot be doled out to an individual who raises a claim, after a lapse of about two decades of the death of the bread-winner. 7. Learned counsel for the respondent, in order to repudiate the submission advanced by the learned counsel for the appellants, has again placed reliance on Rule 5 of the 1974 Rules. Rule 5 of the 1974 Rules is 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.” The 1974 Rules were enforced with effect from 21.12.1973. As such, it is apparent that the same were applicable at the time of the death of the respondent’s father on 28.1.1974. Rule 5 with the original notification of the Rules did not contain the proviso recorded under Rule 5 (1) thereof. The instant proviso came to be introduced in the year 1993 vide notification dated 16.4.1993. The aforesaid proviso cannot be invoked by the respondent to claim appointment on compassionate grounds, on account of the fact that the death of the father of the respondent occurred on 28.1.1974. The aforesaid proviso could be invoked only prospectively. Rule 5 (1) of the 1974 Rules for purposes of adjudicating the claim of the respondent has, therefore, to be examined without taking into consideration the proviso under Rule 5 of the 1974 Rules. Since, the learned Single Judge placed reliance only on the aforesaid proviso to record the conclusion to the effect that the delay at the hands of the respondent in raising his claim for appointment on compassionate grounds could be overlooked, we are satisfied that the aforesaid determination based on the proviso under Rule 5 (1) of the 1974 Rules which could not have been taken into consideration for considering the claim of the respondent for appointment on compassionate grounds, was clearly unjustified. 8. Inspite of the conclusion drawn by us herein above, we have examined the claim of the petitioner, by assuming that the proviso under Rule 5(1) extracted above could have been relied upon by the respondent, for claiming appointment on compassionate grounds. We are satisfied that the aforesaid proviso can be invoked, if the dependent claiming appointment on compassionate grounds, either attains the age of majority, or acquires the educational qualification, or fulfills such other / similar condition of eligibility, within a reasonable duration of time, after the death of the bread-winner in harness. The aforesaid relaxation is clearly impermissible to the respondent, who applied for appointment on compassionate grounds after almost two decades of the death of his father. 9. Besides the aforesaid conclusion, having perused the pleadings in Writ Petition (S/B) No. 1440 of 2002, we are satisfied that the respondent has not substantiated the factum of his financial hardship. In the absence of financial hardship, a claim of appointment on compassionate grounds is clearly not made out. Even otherwise, we are satisfied that appointment on compassionate grounds is permissible to tide over unexpected financial hardship caused to the dependants of an employee, who dies in harness, immediately upon or soon after his death. Such a claim cannot be raised after a period of 18 years so as to await an individual dependent to attain the age of majority. The undisputed factual position is that the father of the respondent died on 28.1.1974. He claims to have submitted a representation for appointment on compassionate grounds for the first time on 1.9.1993 i.e. almost two decades after the death of his father. When his claim was rejected by the authorities, he approached this Court in 2002 i.e. almost twenty eight years after the death of his father in harness. Appointment on compassionate grounds cannot be allowed in the facts and circumstances in this case. We are, therefore, satisfied that the order passed by the learned Single Judge deserves to be set aside. The same is accordingly hereby set aside. 10. The instant special appeal is disposed of in the aforesaid terms. Avneet (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 22.4.2010