Uttarakhand High Court
Dev Chandra vs State Of Uttarakhand And Another on 5 December, 2023
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 2104 of 2022
Dev Chandra ........Petitioner
Versus
State of Uttarakhand and another ........Respondents
Present:-
Mr. N.S. Pundir, learned counsel for the petitioner.
Mr. Sachin Mohan Singh Mehta, learned Brief Holder for the State.
Hon'ble Pankaj Purohit, J. (Oral)
By means of this writ petition, the petitioner has
challenged the order dated 19.09.2022 (Annexure no.14), whereby
claim of the petitioner seeking compassionate appointment in place of
his deceased father was rejected.
2. It is case of the petitioner that his father was working with
the Education Department of State of Uttarakhand as Class IVth
Employee/Daftari in Government Intermediate College, Saliyana,
Chamoli. It is undisputed that father of the petitioner was in regular
government service and he died on 06.12.2016 survived by his widow,
elder brother and the petitioner, while still in service.
3. Petitioner moved an application before respondent no.4
for his compassionate appointment in place of his father on
21.02.2017. The said application of the petitioner for compassionate
appointment, purportedly under the provisions of the Dying-in-
Harness Rules, 1974 as amended up to date, was rejected by
respondent no.4 vide impugned order dated 19.09.2022 (Annexure
no.14).
4. From perusal of the rejection order it is reflected that
claim of the petitioner was rejected simply on the ground that the elder
brother of the petitioner was employed with the State Government.
5. Learned counsel for the petitioner submitted that the
ground which has been taken by respondent no.4 for rejecting
application of the petitioner, is highly arbitrary, illegal and against law
and does not find support from the Dying-in-Harness Rules, 1974.
6. It is further submitted by learned counsel for the
petitioner that similar controversy has been dealt with by this Court in
Writ Petition (S/S) No.2808 of 2019, Dinesh Chanda Garkoti Vs. State
of Uttarakhand through Secretary School Education Department and
others, wherein on the similar set of facts rejection of the claim for
compassionate appointment was not found favour with the Court and
the writ petition was allowed vide judgment and order dated
23.10.2021.
7. It is further pointed out by learned counsel for the
petitioner that the said judgment was taken up to the Apex Court by
the State Government through Division Bench after filing a SPA
No.175 of 2022, but unsuccessfully. Thus judgment rendered by the
Co-ordinate Bench of this Court attained finality. It is further
submitted by the petitioner that the Co-ordinate Bench of this Court
very recently in Writ Petition (S/S) No.581 of 2023 dated 24.04.2023
has also confronted with the same issue and after analyzing the Rule 5
of the Rules of 1974, it has been held by the Co-ordinate Bench in para
no.7 that a dependent of government servant who dies in harness may
not be considered for appointment, if spouse of such deceased
Government Servant is already employed under State/Central
Government. Only restriction which is there in the Rules is with regard
to the fact that spouse of the Government Servant should not be in
Government Service.
8. Here in the case in hand the person who is in Government
service is not the spouse of the deceased Government Servant i.e.
father of the petitioner, rather it is elder brother of the petitioner, who
is Government Service.
9. Para no.7 of WPSS No.581 of 2023 is quoted
hereinbelow:-
"Rule 5 of the aforesaid Rule unequivocally provides that dependent
of a government servant, who dies in harness, may not be considered for
appointment, if spouse of the deceased government servant is already
employed under the State/Central Government. This is not the case here.
Thus, the ground taken for rejecting petitioner's claim is not referable to
provision contained in applicable Rules and is also in teeth of the earlier
order passed by this Court."
10. On the basis of the aforesaid judgment, learned counsel
for the petitioner submits that the issue has no longer remain res-
integra, therefore the rejection of the claim of the petitioner at the
hands of respondent no.4 is arbitrary, illegal and unreasonable and
cannot sustain for a moment.
11. The respondent-State filed its counter affidavit in the writ
petition and supported the impugned order passed by respondent no.4.
12. In para no.10 of counter affidavit Rule 5 (3) of the Rules
of 2002 (Dying-in-harness Rules, 1974 as amended up to date) has
been quoted as under:-
"उपिनयम (1) के अधीन की गयी प्र�ेक िनयु�� इस शत� के अधीन होंगी िक
उपिनयम (1) के अधीन िनयु� , मृतक सरकारी सेवक के प�रवार के अ� सद�ों का
अनुर�ण करेगा, जो िक �यं का अनुर�ण करने म� असमथ� है और उ� सरकारी सेवक पर
उसकी मृ�ु से ठीक पहले आिश्रत थे।"
13. On the strength of the aforesaid Rules, it is submitted by
the State in its counter affidavit that the since elder brother of the
petitioner is a Government Service as per the application submitted by
the petitioner himself before respondent no.4, the petitioner and other
family members cannot be given appointment under Dying-in-Harness
Rules, 1974.
14. It is also the stand of learned State counsel in the counter
affidavit that the mother of the petitioner is getting family pension.
15. Having heard learned counsel for the parties and perusal
of the judgment as referred above and the Rule 5 of Rules of 1974, this
Court is of the opinion that the controversy could only be settled on the
interpretation of the Rule 5 of the Rules of 1974, which is quoted
hereinbelow:-
"[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.]"
16. Rule 5, nowhere prohibits that appointment under
compassionate ground will not be given to a family member, if any
member of the family is in Government Service or in service of the
Centre or in corporation owned and controlled by the State
Government or Central Government. Only restriction which is there in
the Rule is with regard to the fact that the spouse of the Government
Servant should not be in Government Service. Here in the case in hand
since elder brother of the petitioner is in Government Service, that
cannot preclude the petitioner to get employment under Dying-in-
Harness Rules, 1974 on compassionate ground.
17. Learned counsel for the respondent-State even could not
deny this fact that the Rule prohibits only appointment of the spouse, if
she is in Government Service of State or Central Government and
Corporation owned by the State or Central Government.
18. Moreover the controversy stands resolved by the
judgment and order passed by Co-ordinate Bench of this Court as
referred hereinabove. There is nothing left to be decided in the writ
petition. The writ petition is allowed. The order dated 19.09.2022 is
hereby quashed. The respondents are directed to consider case of the
petitioner and to give him appointment under Dying-in-Harness Rule,
1974 not later than the period of eight weeks from the date of
production of certified copy of this order.
(Pankaj Purohit, J.)
05.12.2023
SK
