TARUN AGARWALA, J.

The petitioners father was a permanent employee in the office of the Executive Engineer, Betwa Canal Division Orai in Jalaun. He died in harness on 25-2-1989. Upon his death, the petitioners mother, Smt. Kewal, was given an appointment as a Class IV employee under the Dying in Harness Rules. She also died in harness on 25-11-1999. The petitioner was a minor at the time of the death of her mother and upon reaching the age of majority submitted an application before the Executive Engineer on 5-7-2003 which was also within the stipulated period of 5 years, for an appointment on compassionate ground under the Dying in Harness Rules. The petitioner was informed that the appointing authority, in cases of appointments under the Dying in Harness Rules, was the Superintending Engineer and accordingly the petitioner vide an application dated 28-9-2003 represented the Superintending Engineer for an appointment on compassionate ground. The Executive Engineer by an order dated 2-9-2003 intimated the petitioner that it was not possible for the department to appoint the petitioner on compassionate ground. Aggrieved, the petitioner filed Writ Petition No. 7945 of 2004 which was allowed and the order dated 2-9-2003 was quashed. The High Court, directed the authority concerned to decide the matter with regard to the appointment of the petitioner in accordance with law by a reasoned and speaking order. Based on the direction of the High Court in its judgment dated 26-2-2004, the Executive Engineer by an order dated 28-4-2004 has again rejected the application of the petitioner on the ground that the petitioner cannot be given an employment under the Dying in Harness Rules inasmuch as, the petitioners mother was given an appointment upon the death of the petitioners father and therefore, upon the death of the petitioners mother no second appointment could be given to the petitioner. The petitioner has assailed this order by filing the present writ petition and has prayed for the quashing of the said order and for a direction commanding the respondents to issue a letter of appointment to the petitioner under the Dying in Harness Rules.

2. Heard Sri L. P. Singh, the learned Counsel for the petitioner and the Standing Counsel appearing for the respondents.

The learned Counsel for the petitioner submitted that once the petitioners mother became a Government employee, she became entitled to all the rights and benefits which pertained to that office or post and the conditions of service applicable upon the petitioners mother also included the benefits that could be availed by her heirs under the Dying in Harness Rules.

3. The learned Standing Counsel submitted that the Dying in Harness Rules nowhere provides that family members of a deceased employee could be given successive appointments. The learned Counsel submitted that upon the death of the father, his widow was given an appointment on compassionate ground and, therefore, the provisions of Dying in Harness Rules came to an end and the said Rules could not be utilised again upon the death of the mother of the petitioner. In view of the aforesaid, the petitioner was not eligible to be given an appointment under the Dying in Harness Rules.

4. In the present case, the U. P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 are applicable which has been framed under the proviso to Article 309 of the Constitution of India. Rule 5 of the aforesaid Rules relates to the procedure for the recruitment of a member of family of the deceased which reads as under:

"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

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