[Per: Hon’ble Sudhanshu Dhulia, J.]

1. Heard Ms. Seema Sah, Advocate for the appellants and Mr. Anil Kumar Joshi, Advocate for the respondent.

2. This Special Appeal has been referred to this Full Bench by an order of the Division Bench of this Court, since it was the opinion of the Division Bench that the view of the learned Single Judge of this Court in Writ Petition (S/S) No. 88 of 2003 is contrary to the view of the Division Bench of Hon’ble Allahabad High Court on the issue as to whether the dependants of a daily wage employee can be given appointment on compassionate grounds under Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, (from hereinafter referred to as the Rules or “Dying in Harness Rules”) and, therefore, according to the Division Bench the matter required reconsideration.

3. The brief facts of the present case are that the petitioner Suresh Chandra Auli (respondent in the present special appeal) filed a writ petition before this Court with the prayer that a direction be issued to the respondent to appoint him on the compassionate ground as his father was a daily wage employee in the Forest Development Corporation and the petitioner being his dependant is entitled for compassionate appointment under the said rules. Learned Single Judge of this Court allowed the writ petition quashing the impugned order by which the concerned authorities have rejected the claim of the petitioner, and directed the authorities “to consider the appointment of the petitioner under Government Servant Dying in Harness Rules, 1974 within a period of three months from the filing of the certified copy of the order”. This order was challenged by the Forest Development Corporation in Special Appeal and the Division Bench in special appeal has referred the matter to the present Full Bench for the reasons already referred above.

4. Public appointments as a rule have to be made on the basis of “merit”. Nevertheless, certain exceptions have been created to this rule, such as reservation to certain class of people as given under the Constitution of lndia. There is another exception to this rule with which we are presently concerned i.e. appointment made in public service on “compassionate grounds”. The underlying principle for making appointment on compassionate grounds is that a Government servant who has died in harness leaves behind a family which has now to face hardship due to the death of its only bread-winner. This can be mitigated to some extent, if one of the dependants of the deceased employee is given appointment on “compassionate grounds”.

5. In the erstwhile State of Uttar Pradesh as well as in the State of Uttarakhand Rules have been framed under Article 309 of the Constitution of India for the above purposes, known as “Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974". In the year 2002 these rules have been adopted in the State of Uttarakhand. Rule 5 of the said rules which is in fact the main provision 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 Govemment 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 Go