SPA/175/2022
2022 Latest Caselaw 1960 UK

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                                  SPA No.175 of 2022
                                  Shri Vipin Sanghi, C.J.
                                  Shri Ramesh Chandra Khulbe, J.

Shri S.S. Chaudhary, learned Brief Holder for the State/appellants.

Mr. Bhagwat Mehra, learned counsel for respondent.

Since the delay condonation application is of 02 of 2022, issue notice.

Counsel for the respondent appears and accepts notice.

By this application, the appellant seeks condonation of 24 days' delay in filing the present special appeal.

Learned counsel for the respondent fairly does not oppose the application.

The same is accordingly allowed. Delay is condoned.

The present special appeal is directed against the judgment dated 23.10.2021 rendered by learned Single Judge in Writ Petition (S/S) No.2808 of 2019, "Dineh Chanda Garkoti Vs. State of Uttarakhand through Secretary, School Education Department and others." The respondent-writ petitioner had preferred this writ petition seeking appointment on the post, on compassionate ground. The father of the respondent, who was a confirmed employee and was working as a Class- IV employee as Anusewak in School Education Department died in-harness, on 16.02.2019. The petitioner being a family member of his family sought appointment on compassionate ground, based on his qualification. His request was declined on 02.07.2019, on the ground that his elder brother, i.e. elder son of the deceased, was already employed in I.T.B.P. The appellant claimed that the respondent was not entitled to appointment on compassionate grounds under Rule 5 of the Dying-in-harness Rules, 1974.

Learned Single Judge while allowing the writ petition has taken note of the said Rule 5 as also the judgment of learned Single Judge of this Court in Writ Petition (S/S) No.434 of 2009, "Ajay Kumar Vs. State of Uttarakhand and others", decided on 04.11.2009, which was upheld by the Division Bench in Special Appeal No.25 of 2010 vide its judgment dated 30.04.2010.

In Similar facts, the Division Bench held that the mere fact that another son of the deceased was already working in a Government Department in his own capacity does not debar the second son of the deceased from applying under the Dying-in-harness Rule.

Following the said decision, the learned Single Judge directed the appellant to reconsider the matter for appointment of the writ-petitioner on compassionate grounds, in accordance with the 1974 Rules. It was clarified that the engagement of the elder son with the I.T.B.P. shall not come in the way of the respondent, while considering this case for appointment on compassionate ground.

Before us, learned counsel for the appellant has again sought to urge that the elder son of the deceased of the government servant was already serving in I.T.B.P and therefore, there was no ground made out for grant of appointment on compassionate ground as the family of the deceased could not be said to have suffered financial crisis, on account on the death of government servant, while in harness.

In the light of the decision of the Division Bench in Special Appeal No.25 of 2010 dated 30.04.2010, the aforesaid submission of the appellant cannot be accepted.

It is not necessary that the elder son, who was already serving in I.T.B.P when the government servant died would necessarily take care of either his widowed mother or the respondent i.e. his younger brother. Therefore, in our view, the direction issued by learned Single Judge does not call for interference.

We, therefore, find no merit in this appeal and same is dismissed.

(R.C. Khulbe, J.) (Vipin Sanghi, C.J.) 04.07.2022 SK/RB