IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) No. 321 of 2011 Anil Kumar Arya ………….Petitioner Versus State of Uttarakhand and others. ……...Respondents. Present : Mr. Subhash Upadhyaya, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. Subhash Upadhyaya, Advocate for the petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. The father of the petitioner was an employee in State of Uttarakhand in its department of Medical Health and Family Welfare. At the time when the father of the petitioner died in harness, he was employed as a Chief Pharmacists at T.B. Sanitarium, Bhowali which was under the B.D. Pande Hospital, Nainital. After the death of the petitioner’s father on 8.9.2008, the petitioner moved an application under Rule 5 of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (from hereinafter referred to as “Dying in Harness Rules) before the appropriate authority praying that he should be appointed on a suitable post being the son of the deceased. Since no appointment was made the petitioner was constrained to file a writ petition before this Court being Writ Petition No. 1191 of 2009 (S/S). The aforesaid writ petition was disposed of by a learned Single Judge of this Court on 7.9.2010 giving direction to respondent no. 2 to consider the application of the 2 petitioner in accordance with Dying in Harness Rules, 1974 within a period of 8 weeks from the date of production of a certified copy of that order. Consequently representation of the petitioner was decided by the Director General, Medical Health and Family Welfare, Uttarakhand, Dehradun vide order dated 12.11.2010. The Director General, Medical Health and Family Welfare rejected the claim of the petitioner on two grounds – (a) brother of the petitioner is already in Government service and (b) the financial condition of the petitioner’s family is not such that they cannot survive and therefore the petitioner is not an eligible candidate for appointment. The State in its counter affidavit has defended the stand of the Director General and stated that the appointment to the petitioner on compassionate ground has rightly been denied. After reading the relative submission of the parties, this Court is of the considered view that rejecting the claim of the petitioner on the above two grounds is not proper. Firstly, merely because the brother of the petitioner is in Government service cannot disentitle the petitioner for being appointed on compassionate ground. Admittedly the brother of the petitioner who is an employee of Government of Uttarakhand in Education Department on class III post is married and has his own family. Moreover, this is not the ground on which the claim of the petitioner can be rejected as Rule 5 of Dying in Harness Rules clearly says that such appointment shall not be given in case the spouse of the deceased was already employed in Government service. In view of this Court the denial of the appointment to the petitioner on this ground is not a proper ground. 3 The second ground for denying the appointment to the petitioner is also not proper. First and foremost, the appointment on compassionate ground in the present case has to be made in accordance with the Dying in Harness Rules. The reason given by the respondents that the family of the deceased has been given the post retirement dues and as such they are not impoverish, is not proper. The financial condition of the family of the deceased is not one of the reasons for denying the appointment to the petitioner. What the family has received as the post retirement benefits is family pension which is their right. It is not a bounty being given to the family by the State Government. On the other hand, appointment under the Dying in Harness Rules has a distinct criteria. Moreover, the Hon’ble Apex Court in paragraph 13 of its judgment in Balbir Kaur and another (2000) 6 SCC 493, has stated thus :- “…Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of a Family Benefit Scheme by the employees’ union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief- stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation.” 4 As such, the order dated 12.11.2010 passed by the Director General, Medical Health and Family Welfare, Uttarakhand, Dehradun rejecting the claim of the petitioner has been passed on wholly untenable grounds, the order dated 12.11.2010 (Annexure No. 11 to the writ petition) is hereby quashed. Director General Medical Health and Family Welfare is hereby directed to reconsider giving appointment to the petitioner on a class III or a class IV post by passing an order within a period of three months from the date a certified copy of the order is given to him. It is clarified that the compliance, as above, must be made in terms of what has already been stated above. Writ Petition is disposed of accordingly. No order as to costs. (Sudhanshu Dhulia, J.) 22.7.2011 Avneet