Heard Mr. Amish Tiwari, Advocate for petitioner and Mr. N.P. Sah, Standing Counsel for State of Uttarakhand/respondents.

2. This writ petition has been filed by the petitioner claiming appointment under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (from hereinafter referred to as “Dying in Harness Rules”). The case of the petitioner is that his father, who was a permanent employee of Government of Uttarakhand and was working as a Sweeper in the Department of Medical, Health and Family Welfare, Bageshwar, died in harness on 29th July, 2008. The deceased Kallu Ram i.e. father of the petitioner had left behind his wife Smt. Munni Devi and the petitioner. Apart from aforesaid two, another son is namely Rohit, who is minor and daughter namely Poonam. Apart from the aforesaid, the eldest son of the deceased namely Anil Kumar is living separately and he is employed. The department, however, vide order dated 6.11.2008 rejected the application for appointment of the petitioner on compassionate ground stating that the appointment of the petitioner is not covered under Dying in Harness Rules. Aggrieved, the petitioner has filed present writ petition.

3. In the counter affidavit, which the State has filed, they have relied upon Rule 5 of the Dying in Harness Rules, which reads as follows :

“[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 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.]

[(3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government Servant who are incapable for their own maintenance and were dependent of the abovesaid deceased Government servant immediately before his death.”

4. Now the contention of the State is that since elder brother of the petitioner namely Anil Kumar is a Government employee, therefore, the petitioner cannot be granted appointment on compassionate ground under Dying in Harness Rules. This argument of the State Counsel is totally misconceived inasmuch as Rule 5 only states that such an appointment shall not be given in case the spouse of the deceased is already employed in the Government service. It is not the case, where the spouse of the deceased was employed in Government service. One who is employed in the Government service is the son of the deceased, who is presently living separately and merely because one of the sons of the deceased is employed, it cannot be a ground of denying the employment to the petitioner. The only restriction is tha