Hon’ble Suneet Kumar, J.—The mother of the petitioner Smt. Saroj Kumari was working as an Assistant Teacher in Primary School Guchawali, Jahangirabad, District Bulandshahar, died in harness on 1.10.2008 leaving behind two sons including the petitioner. According to the petitioner, he is qualified and eligible for appointment on the post of Assistant Teacher in a Primary School, run by Basic Siksha Parisad, Allahabad. The respondent No. 3, Secretary U.P. Basic Education Board, Allahabad rejected the application of the petitioner for appointment under the dying in harness rules on 27.4.2010, for the reason, that the father of the petitioner is an employee of the State Government and was drawing salary, hence the petitioner is not entitled to appointment.

2. The order dated 27.4.2010 and the consequential order dated 3.5.2010 passed by respondent No. 2, Secretary, Basic Education Board, Allahabad and respondent No. 3, District Basic Siksha Adhikari, Bulandshahar, respectively, is being questioned in the present writ petition.

3. I have heard the learned counsels for the parties and perused the records.

4. It is not disputed that the provisions of Uttar Pradesh Recruitment of Dependants of Government Servants (Dying in Harness) Rules 1974 (the Rules) is applicable upon the petitioner. Rule 5 provides for recruitment of a member of the family of the deceased. Rule 5(1) reads as follows :

“5. Recruitment of a member of the family of the deceased : (I) 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:”

5. It is evident from the Rule 5 that if any member of the family is already employed with the Central Government/State Government/Corporation owned and controlled by the Central Government or State Government shall not be entitled for employment in Government Service.

6. Rule 6 provides the contents that is to be disclosed by the applicant in his application for employment, which reads as follows :

“6. Contents of application for employment:

(a) .......................

(b) .......................

(c) details of the financial condition of the family; and

(d) ......................”

7. The submission of learned counsel for the petitioner is that, the reason assigned that the father of the petitioner was working as a teacher and drawing salary from the State Exchequer is not correct, as the father of the petitioner retired on 7.7.2008 i.e. before the death of his mother. The learned counsel for the petitioner contends that the father of the petitioner is receiving pension from the State Exchequer, but is no longer in employment of the State, hence, petitioner is entitled to appointment under the Rules.

8. According to the learned counsel for the petitioner Rule 5 shall not be applicable upon an employee who has already retired and is drawing pension.

9. The contention of the learned counsel for the petitioner cannot be accepted, Rule 5 and Rule 6 read together, the financial condition of the family is to be taken into consideration, since, the father of the petitioner is receiving pension, which is, deferred p