Anil Tripathi vs State Of Uttarakhand & Another

Manoj Kumar Tiwari, J

Heard learned counsel for the parties.

Petitioner’s father was serving as Assistant Teacher in a Government Primary School in District Almora, who passed away on 30.06.2014.

Petitioner applied for compassionate appointment, in view of financial hardships faced by his family, on account of death of sole bread-winner. Petitioner’s request for compassionate appointment was earlier rejected by Additional Director, Primary Education, Kumaon, vide order dated 30.10.2014, on the ground that petitioner’s elder brother is employed in Indian Army, therefore, he cannot be given compassionate appointment.

Petitioner challenged the said rejection order by filing Writ Petition (S/S) No. 3831 of 2018, which was disposed of vide order dated 24.07.2020 by holding that rejection order was passed by an officer, who was not competent for the purpose and the matter was relegated to Director, Primary Education to take decision afresh.

Now   by   the   impugned   order   dated 20.11.2020, petitioner’s claim has again been rejected. Thus feeling aggrieved by rejection order dated 20.11.2020, petitioner has filed this writ petition.

The sole ground taken for rejecting petitioner’s claim for compassionate appointment is that his elder brother is serving as Soldier in Indian Army, therefore, in view of provision contained in Rule 5 of the Dying-in-Harness Rules, 1974, petitioner cannot be appointed on compassionate ground.

Learned counsel for the petitioner contends that the ground for rejection, taken in the impugned order, is unsustainable. He has drawn attention of this Court to Rule 5 of the Dying-in-Harness Rules, 1974, which are 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.]”

From perusal of Rule 5, it is apparent that appointment on compassionate ground can be denied to the dependent of a deceased employee, if spouse of the deceased employee was serving under the State or Central Government. It is not the case here, as it is nobody’s case that petitioner’s mother is serving under the Central Government or the State Government.

Learned counsel appearing for petitioner has drawn attention of this Court to a judgment rendered by a Co-ordinate Bench of this Court on 04.11.2009 in Writ petition (S/S) No. 434 of 2009.

Learned Brief Holder appearing for the State contends that substantial amount was paid to petitioner’s mother as terminal benefits, therefore, petitioner has no vested right of appointment, on compassionate ground, as his family cannot be said to be indigent.

The said submission is unacceptable for the simple reason that the field is covered by Dying-in-Harness Rules, 1974 and the said Rules do not provide for assessment of financial status of the family of the applicant, moreover no ceiling on income or assets of the applicant is provided in the Rules. Respondents cannot import a condition from scheme of compassionate appointment applicable in Nationalized Banks or Public Sector Undertakings.

Even otherwise also, this is not a ground of rejection of petitioner’s claim in the impugned order.

When the field is covered by statutory Rules, then consideration of claim for compassionate appointment has to be made, strictly, as per provisions of the said statute.

Since, the issue involved in this case is already decided by Co-ordinate Bench of this Court, therefore, present writ petition is decided in terms of judgment dated 04.11.2009 rendered in Writ Petition (S/S) No. 434 of 2009. Respondents are directed to re-consider petitioner’s claim for compassionate appointment, as per law, within four weeks from the date of production of certified copy of this order.