( 1 ) HEARD Sri S. K. Chaturvedi, learned counsel for the petitioner and Sri V. K. Verma, learned counsel holding brief of Sri V. K. Singh, learned counsel for the respondents, and with the consent of learned counsels for the parties writ petition is decided finally at this stage in view of the Second Proviso to Rule 2 of Chapter XXII of the Allahabad High Courts Rules, 1952.

( 2 ) IN this petition prayer has been made for quashing the order dated 13. 6. 2001, whereby the petitioners application for getting appointment on compassionate ground has been rejected, and further prayer has been made for issuance of mandamus commanding the respondents to consider the application of the petitioner for compassionate appointment.

( 3 ) ACCORDING to the petitioner, the mother of the petitioner, while deployed as Class IV employee in U. P. State Road Transport Corporation, died on 31. 8. 1995. On the death of his mother the petitioner, whose date of birth is 18. 2. 1982, being eldest male member in the family submitted his earlier application on 24. 11. 1997 as a minor, and subsequently on 13. 7. 2000, i. e. , within five years from the date of death of his mother submitted his application for getting employment on compassionate ground. The Regional Manager, U. P. S. R. T. C. , Agra Region, Agra by its letter dated 2. 12. 2000 directed the petitioner to appear with his testimonials for physical test. In compliance thereto the petitioner presented himself before the said authority, however, the petitioner was informed by letter dated 13. 6. 2001 that his claim for getting employment on compassionate ground has been rejected.

( 4 ) ACCORDING to the petitioner he is class 8th pass and has 5 feet 4 and 1/2 inches height and the application was presented within five years, therefore, he could be appointed by relaxing the criteria of appointment as a driver. According to the petitioner he could be given appointment to the Class IV post under Dying-in-Harness Rules on compassionate ground, for which the petitioner is fully in possession of qualification and is also competent to be appointed as a driver, and the rejection of the petitioners claim is illegal, without application of mind and is derogation to the spirit of the Dying-in-Harness Rules.

( 5 ) COUNTER-AFFIDAVIT has been filed, wherein it has been indicated that the strength of working class IV employee is more than the sanctioned posts, as such there is no post available to give appointment to the petitioner. According to the respondents as a driver the petitioner cannot be given appointment because for appointment as a driver minimum qualification is High School and height should be 5 feet 5 inch, however, the petitioner is only High School pass and his height is only 5 feet 4 and 1/2 inch, this stand of the respondents has been denied by the petitioner.

( 6 ) ON behalf of petitioner rejoinder-affidavit has been filed controverting the averments of the counter-affidavit and reiterating the stand taken in the writ petition.

( 7 ) FOR convenience Rule 5 of rules, 1974 is extracted below ;

"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 qu