The appointment of a deceased employee cannot be adjudged void posthumously and retrospectively, and the dependents are entitled to consideration for compassionate appointment in accordance with the rules.

JUDGMENT :

(J.J. Munir, J.)

This writ petition is directed against the order dated 14.09.2023 passed by the Nagar Swasthya Adhikari, Nagar Nigam, Saharanpur, rejecting the petitioner’s application for compassionate appointment.

2. Heard Mr. Siddharth Khare, learned Counsel for the petitioner, Mr. Surya Pratap Singh, Advocate holding brief of Mr. Jai Bahadur Singh, learned Counsel for respondent Nos. 4, 5 and 6, and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3.

3. The petitioner’s father, Balbir Singh, was a permanent employee, a Safai Karmchari with the Nagar Nigam, Saharanpur. He died in harness on 05.04.2023. The deceased-employee’s father, Chandu Ram, was a government employee with the then Nagar Palika Parishad, Saharanpur. He suffered from indifferent health, and therefore, submitted his resignation. Consequent upon Chandu Ram’s resignation, the petitioner’s father and Chandu Ram’s son, Balbir Singh, was appointed in the year 1990 as a Safai Karmchari, a position he held until his death in harness on 05.04.2023. The petitioner was solely dependant upon his deceased father for his livelihood and sustenance. The petitioner has earned his degree of Master of Arts (M.A.), besides Bachelor of Arts (B.A.) in English. He also holds a Diploma in Elementary Education. The petitioner applied for compassionate appointment commensurate to his educational qualifications. His application has been rejected by the Nagar Swasthya Adhikari by the order impugned dated 14.09.2023.

4. Aggrieved, the petitioner has instituted the present writ petition.

5. A perusal of the impugned order shows that the reason assigned to decline the petitioner’s claim for compassionate appointment is that according to the Government Order dated 15.09.2002, in force at the relevant time, there was no provision to grant the petitioner’s father an appointment for reason that his father had resigned his job. It has been further observed that going by the order of the Nagar Ayukt, Nagar Nigam, Saharanpur dated 12.09.2023, the petitioner cannot be granted appointment in place of his deceased father, because the deceased was not lawfully appointed.

6. The moot question involved in this petition is :

Whether compassionate appointment can be denied to a candidate on ground that the deceased-employee, whose demise gives him a right under the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974/Dying-in-Harness Scheme, was not lawfully appointed?

7. A return has been filed on behalf of respondent Nos. 1, 2 and 3 by the Principal Secretary, Urban Development Department, Government of U.P. and a separate counter affidavit, on behalf of respondent Nos. 4, 5 and 6, by the Apar Nagar Ayukt, Nagar Nigam, Saharanpur. The unanimous stand taken is that the petitioner’s father was appointed de hors the Rules, because his father had resigned his post as a Safai Karmchari, which did not give the petitioner a right to be appointed. Nevertheless, the petitioner’s father was appointed on the sole premise that his father had resigned on account of ill-health.

8. Learned Counsel for the petitioner has contended that the validity of the petitioner’s father’s appointment is irrelevant to judge the petitioner’s claim, because the petitioner’s father, while in harness, was never declared to be unlawfully appointed. Learned Counsel for the petitioner has placed reliance upon the decision of a learned Single Judge of this Court in Karan Addiwal v. State of U.P. and others, Writ -A No. 1941 of 2023, decided on 28.02.2023. He submits that on identical facts, it has been held that validity of appointment of the deceased-employee, whose dependant claims compassionate appointment, cannot be gone into for the purpose of determining the entitlement under the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974,[‘the Rules of 1974’ for short]. It is also pointe