The interpretation and application of Rule 5(1) of U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974, hinge on the employment and pension status of the deceased's spouse and the family's financial condition.

JUDGMENT :

1. There is no need to call for a counter affidavit in the matter as the facts as stated in the impugned order, if they are taken on their face value, even then the same cannot sustain.

2. Counsel for the petitioner, learned Standing Counsel and Mr. Ravi Singh, learned counsel for opposite party no. 2 have been heard.

3. The petitioner filed an application seeking compassionate appointment consequent to the death of her mother, namely, Vimla, who died on 11.06.2018. Annexure-3 is the death certificate mentioning the date of death of Vimla as 11.06.2018. The claim of the petitioner has been denied by relying upon Rule 5 (1) of U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 on the ground that husband of late Vimla was employed as Sweeper under UPSRTC, therefore, in view of the exception carved out in the said Rule, the petitioner is not entitle to compassionate appointment. Though the said Rules are applicable to Government Servants, but, it appears that they have been applied in Nagar Nigam also as this is the Rule which is referred in the impugned order. Rule 5 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 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) fulfills 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:

Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay take the appropriate decision.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.

(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.

(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."

4. Rule very clearly says that 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