Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Writ Petition (S/S) No.7178/2001. Naveen Chand Bridhkoti ……… Petitioner Versus The State of Uttaranchal through Secretary, Education (Madhyamik Siksha) Civil Secretariat, Dehradun. …….. Respondents …………….. Sri P.C.Bisht, learned counsel for the petitioner. Sri Paresh Tripathi, learned State Counsel for the respondents. Date: May 02,2008. Hon’ble P.C.Verma,J. By means of this petition the petitioner prays for a writ in the nature of mandamus commanding the respondents to consider his case for appointment on compassionate ground under the Dying in Harness Rules, 1974. 2. It is stated that Sri Dhara Dutt Bridhkoti, father of the petitioner was posted as Head Clerk in Inter College Syalde, Almora, which was a recognized and Government aided College. He died on 05.10.1978 during his service period. The said institution became the Government Inter College on 01.03.1979 and since then it is being run by the Government. At the time of death of his father the petitioner was minor (4-year-old) and when he attained the majority, he made an application for his 2 appointment on compassionate ground as a Clerk in accordance with the provisions of Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, but since no action was taken on the representation of the petitioner, he preferred writ petition in the High Court Allahabad, bearing No.6814 of 1997 (S/S) seeking relief for appointment under the aforesaid rules. The said writ petition was disposed of on 17.12.1997 with the direction to respondent No.2 to consider the representation filed by the petitioner within a period of two months. In pursuance of the aforesaid order the respondent No.2 has decided the representation of the petitioner on 04.03.1998 rejecting his claim for compassionate appointment on the ground that on the date of death of petitioner’s father late Sri Dhara Dutt Bridhkoti, the institution i.e. Inter College, Syalde, Almora, was in grant in aid. The said College was taken over by the Government on 01.03.1979 and thereafter it is being run as Government Inter College. Hence late Sri Dhara Dutt Bridhkoti does not come within the category of Government servant and the provisions of Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, are not applicable in the case of the petitioner. Against the said order dated 04.03.1998 passed by respondent No.2, the petitioner made representations on 31.03.1998, 22.10.1999 and 16.10.2000 and lastly on 31.10.2001, but since no action was taken on the representations of the petitioner, he has preferred the present writ petition for above mentioned relief. 3 3. The contention of the respondents is that in pursuance of the order passed by High Court Allahabad in Writ Petition No.6814 of 1997 the representation of the petitioner was considered sympathetically but the claim of the petitioner does not come within the purview of Government Order as well as under the Dying in Harness Rules because on the date 05.10.1978 when the petitioner’s father died the said institution was in grant in aid and was under the control of private management. The Dying in Harness Rules is applicable after 01.01.1981 in the said School/Colleges. 4. I have heard the learned counsel for the parties and perused the record. The sole controversy in this petition revolves on the point that whether the Dying in Harness Rules are applicable to the Government aided institutions or not? 5. The contention of the learned counsel for the petitioner is that the respondent No.2 wrongly held that the Dying in Harness Rules 1974 is applicable to the Government servants only. It is an admitted case that the institution, in which the father of the petitioner has worked, was an aided college. The said institution became the Government Intermediate College on 01.03.1979. It is also contended by the learned counsel for the petitioner that being an aided college the benefit of the Dying in Harness Rules 1974 should have been given to the petitioner. In support of his case, reliance has been placed in a case Hira Man versus State of U.P. and others, reported in (1997) 11 Supreme Court Cases, Page 630, in which the Apex Court has held that the Rule 4 of the Dying in Harness Rules, 1974 gives an overriding 4 effect to those Rules by providing that they shall have the effect notwithstanding anything to the contrary contained in any Rules, Regulations or orders in force at the commencement of those Rules. Para 7 of the said judgment reads as under:- “7. The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 have been framed in exercise of the powers conferred by Article 309 of the Constitution of India. Rule 3 of the said rules makes these rules applicable to the recruitment of dependents of the deceased government servants to public services and posts in connection with the affairs of State of Uttar Pradesh, except services and posts which are within the purview of the Uttar Pradesh Public Service Commission. Rule 4, on which heavy reliance has been placed by the learned counsel for Respondent No.4, gives an overriding effect to those Rules by providing that they shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of those rules. It was contended that so far as recruitment of such dependents to public services and posts is concerned, Dying in Harness Rules override all other recruitment Rules and that would necessarily imply that even if quota for promotion and direct recruitment is fixed under those Rules, they will have to give way and the dependent of the deceased government servant will have to be accommodated on the first available 5 vacancy irrespective of whether it is to be filled up by promotion or by direct recruitment.” 6. The Dying in Harness Rules are made under Article 309 of the Constitution of India. Article 309 empowers the appropriate legislatures to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or the State. In para 8 of the aforesaid judgment, the Apex Court has held that obviously this provision in Rule 5 of Dying in Harness Rules has been made with a view to achieve the object of the Rules, viz., to provide immediate succour to family of the deceased Government servant when it is put in a difficult financial situation as a result of his death. In Para 9 the Apex Court has also held as under:- “9. ……..The rule-making authority after providing generally in Rule 4 that Dying in Harness Rules and any orders issued thereunder shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of the rules has thereafter in Rules 5 and 8 specifically provided what is to be relaxed and to what extent it is to be relaxed. If the intention of the rule making authority was to give the Dying in Harness Rules an overriding effect over all other recruitment rules or regulations in all respects, then it would have been unnecessary for it to provide for relaxation of the normal recruitment rules in Rule 5 and relaxation of 6 age and the procedural requirements for selection in Rule 8……” 7. Hence in view of the above position of law laid down by the Apex Court in case of Hira Man (supra), it has wrongly been held by the respondent No.2 that the petitioner could not be given benefit of Dying in Harness Rules 1974. 7. The petition is allowed. The order dated 04.03.1998 rejecting the application of the petitioner is quashed. The respondents are directed to re-consider the application of the petitioner for compassionate appointment, keeping in view the aforesaid provision and other attending circumstances and take appropriate decision in the matter, within a period of two months from the date of production of certified copy of this order. (P.C.Verma,J.) 02.05.2008 P.singh