The main legal point established is that the employment status of one family member in a government job does not automatically disqualify other family members from seeking compassionate appointment, as the earnings of the employed family member may not be available for the sustenance of the remaining family.

JUDGMENT :

(Manjive Shukla, J.) :

1. Heard learned counsel appearing for the petitioner, learned Standing Counsel appearing for the Respondents No. 1 and 2 as well as Mr. Ashish Kumar Nagvanshi, learned counsel appearing for the Respondents No. 3 & 4.

2. Petitioner through this writ petition has challenged the order dated 26.12.2022 passed by the District Basic Education Officer, Gorakhpur, whereby petitioner’s application for her compassionate appointment has been rejected.

3. Facts of the case, in brief, are that father of the petitioner while working on the post of Head Master at Primary School Manikapur, Block Belghat District Gorakhpur, died in harness on 07.12.2019. On the date of death of petitioner’s father, there remained widow (mother of the petitioner), two unmarried sons and unmarried daughter in the family. Petitioner is permanently disabled and her disability has been quantified to the tune of 75% and further she has been completely dependent on the earnings of her father.

4. Petitioner’s elder brother Mr. Deepak Kumar is a government servant in the Provincial Armed Constabulary (PAC) of U.P. and is posted at District Jaunpur. Mr. Deepak Kumar along with his family is residing at District Jaunpur.

5. Petitioner after the death of her father submitted application for her compassionate appointment and along with the said application, she also filed an affidavit given by her elder brother, wherein he has categorically stated that he is in government job but is residing separately from his parents and he has no objection if the compassionate appointment in lieu of death of his father is offered to the petitioner.

6. The District Basic Education Officer, Gorakhpur has rejected the application of the petitioner for her compassionate appointment vide order dated 26.12.2022. The ground for rejection of the petitioner’s application for compassionate appointment is that the eldest son of late Indra Dev (father of the petitioner) is employed in the Provincial Armed Constabulary (PAC) of the State of U.P. and therefore, there is no financial stress with the family of late Indra Dev and further since eldest son of the deceased teacher is employed with the State Government, the compassionate appointment of the member of the family is not permissible under U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 (hereinafter referred to as "the Rules of 1974”).

7. Learned counsel appearing for the petitioner has submitted that petitioner’s brother in his affidavit filed before the District Basic Education Officer, Gorakhpur has categorically stated that though he is employed but is residing separately from his parents therefore, there was no material available with the District Basic Education Officer, Gorakhpur to infer that the petitioner’s brother is providing sufficient financial support to the family of late Indra Dev (deceased teacher).

8. Learned counsel appearing for the petitioner has also submitted that the legislature while making amendment in the Rules of 1974 by promulgating Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness (Fifth) Amendment Rules, 1999, was conscious of the fact that even if one son of the deceased government servant is in employment, that cannot be a reason for denying the compassionate appointment to other son or daughter (as the case may be) as the earnings of the employed son may be utilized for his family alone and may not be available for the sustenance of the remaining family of the deceased government servant therefore, only one exception has been carved out and it has been provided that where surviving spouse of deceased government servant is in government job, compassionate appointment shall not be offered to any other family member of the deceased government servant.

9. Learned counsel appearing for the petitioner has argued that once there is no such prohibition either under the Rules of 1974 or under the Government order dated 04.09