JUDGMENT :

Karunesh Singh Pawar, J.

Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. By this petition, the petitioner has prayed for the following relief :

''(I) A Writ, order or direction in the nature of certiorari quashing the order dated 21.5.2022 passed by the respondent No. 2 (Chief Medical Officer, Firozabad).

(II) A Writ, order or direction in the nature of mandamus directing the respondent No. 2 to consider the claim of the petitioner under the dying-in-harness rules for the suitable post.''

3. Learned counsel for the petitioner submits that the impugned order dated 21.5.2022 passed by the Chief Medical Officer, Firozabad is arbitrary. He also submits that claim of the petitioner has wrongly been denied.

4. It is further submitted that all other legal heirs of the late Sunita Devi have given their no objection certificate in favour of the petitioner.

5. Learned Standing Counsel has opposed the petition submitting that The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 have been framed to provide immediate relief by providing employment to one member of the aggrieved family. In this case at the time of death of the mother of the petitioner, his father was already employed in the Government service and presently after retirement he is receiving the pension and therefore on this ground the representation of the petitioner has rightly been rejected.

6. Perusal of Rule 5 of The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 shows that compassionate appointment is given one of the family member of the deceased Government employee in case a Government servant dies and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government etc. Rule 5 of The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 is extracted below :

''[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) 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:

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.

(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.]''

7. It is admitted case of the petitioner that at the time of the death of the late mother of the petitioner, his father was already employed with the State Government. Rule 5 of The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 shows that compassionate appointment has to be given in that circumstances where the other spouse of the deceased is not already employed in the Central Government or the State Government or otherwise. Since the father of the petitioner was already employed at the time of dea