The main legal point established in the judgment is that the rejection of a claim for compassionate appointment should be based on the specific provisions of the Dying-in-Harness Rules, and in this case, the employment of the petitioner's elder brother was not a valid ground for rejection.

JUDGMENT :

1. Petitioner’s father, who was an employee in Education Department, died while in service. Petitioner applied for compassionate appointment. His application for compassionate appointment has been rejected only on the ground that his elder brother is employed in Bank of Baroda. Petitioner has challenged the said rejection order in this writ petition.

2. It is contended by learned Counsel for the petitioner that petitioner’s elder brother, who is employed in Bank of Baroda, has been living separately with his family since before death of petitioner’s father. Therefore, petitioner’s request for compassionate appointment could not have been rejected on the ground that his elder brother is employed. Learned Counsel further submits that the case is governed by Dying-in-Harness Rules, 1974. He relied upon Rule 5 of the said rules which 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.]

(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 dependant of the abovesaid deceased Government servant immediately before his death.]”

3. Based on aforesaid rule, learned counsel for the petitioner submits that petitioner’s claim for compassionate appointment could have been rejected had the petitioner’s mother been employed under the Central Government or State government, as the said rule prescribes, and then alone compassionate appointment can be denied.

4. It is not the case of the respondents that petitioner’s mother is employed under Central Government or State Government. Therefore, ground taken for rejecting the claim for compassionate appointment is unsustainable.

5. This Court finds substance in the submission made by learned Counsel for the petitioner. Since the rule prescribes that claim for compassionate appointment can be denied only if spouse of the deceased government servant is employed, which is not the case here, therefore impugned rejection order is unsustainable and is liable to be set aside. This view is supported by the judgment rendered by a coordinate Bench of this Court in the case of Ajay Kumar v. State of Uttarakhand, 2009 (2) UD 556, wherein it has been held as under:

“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 Dy