The Allahabad High Court held that the statutory condition for not granting compassionate appointment if the spouse of the deceased employee is already in government employment is only limited to the spouse and cannot be extended to children of the deceased employee and the son being in government employment at the time of the death of his father would be irrelevant since his earning may be utilized for providing for his own family, wife and children.
Brief Facts:
The Petitioner's father died in service while working as Head Master of the Primary School Manikapur, Block Belghat District Gorakhpur, leaving behind a widow (mother of the petitioner), two unmarried sons and an unmarried daughter. The petitioner is 75% permanently disabled and was completely dependent on the earnings of her father. The petitioner applied for a compassionate appointment. Along with the application, she submitted an affidavit that her elder brother is in a government job but living separately from the family. It was also stated that he had no objection if the petitioner was granted a compassionate appointment in lieu of the death of their father. The District Basic Education Officer, Gorakhpur rejected the petitioner's application on the grounds that the eldest son of the deceased is a government employee, and there is no financial stress on the family. Further, it was stated that since the eldest son is in government employment, 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.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that there was evidence to show that her elder brother was providing for the family. It was argued that a specific exception regarding spouse being in government servant was specifically carved out in the Rules of 1974. However, no such exception was made for the elder son being in government employment as the son may have his own family, for which his earnings may be utilized. Accordingly, it was argued that there is no such prohibition in law to prevent the second dependent child from getting a compassionate appointment if the first was in government employment.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent contended that y argued that the Rules of 1974 were amended in the year 1999 and it has been provided that if the surviving spouse of the deceased government servant is in a government job, then the other family members dependent on the deceased government servant shall not be entitled for compassionate appointment and therefore, the spirit of the Rules of 1974 and the Government order dated 04.09.2000 is apparent that if any member of the family is in government job then the family of the deceased government servant shall not be in financial stress and accordingly the other dependent family members cannot claim compassionate appointment
Observations of the court:
The court referred to Rule 5(1) and stated that initially it provided for compassionate appointment to one family member dependent on the deceased government servant provided he is not in a government job meaning thereby that there was only one condition where the compassionate appointment could have been refused i.e. person seeking compassionate appointment was already in a government job. Later on, Rule 5(1) of the Rules of 1974 was amended in the year 1999 and Rule 5(1) provides that if the surviving spouse of the deceased government servant is in a government job then the other family members dependent on the deceased government servant shall not be entitled for compassionate appointment.
The court added that the legislature while amending Rule 5(1) of the Rules of 1974 was conscious of the fact that if one son of the deceased government servant is in a government job, his earnings may not be available for the survival of the remaining family members of the deceased government servant for the reason that the earnings of the son are meant for survival of his own family (his wife and children) and therefore only one prohibition has been incorporated that if the surviving spouse of the deceased government servant is in government job, the other dependent family members are not entitled for compassionate appointment.
The Court held that in view of the amendment as well as the Government order dated 04.09.2000, the petitioner's claim for a compassionate appointment cannot be rejected as it has been specifically stated in the affidavit that the brother is in a government job and residing separately from the family (mother and siblings). The Court held that in the absence of any material on record to show that the brother's earnings were enough for the sustenance of the family, the order of the District Basic Education Officer, Gorakhpur is not sustainable.
The decision of the Court:
The court allowed the petition and remitted the matter back to the respondent to consider the petitioner’s matter afresh.
Case Title: Kumari Nisha vs. State of U.P. and Ors.
Coram: Hon’ble Mr. Justice Manjive Shukla
Case No.: WRIT - A No. - 16068 of 2023
Advocate for the Petitioner: Mr. Amit Kumar Singh
Advocate for the Respondent: C.S.C., Ashish Kumar
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