Usman Khan vs State of Uttarakhand and Others

Sudhanshu Dhulia, J.—The father of the petitioner who was a regular employee in the Agricultural Department in the State of Uttarakhand died while in harness on 26.12.2010, leaving behind his wife, two daughters and two sons including one who is already gainfully employed with the Forest Department of Government of Uttarakhand. The present petitioner, however, applied for appointment on compassionate ground on 2nd February, 2011. This application has been rejected on 27.08.2011 on the ground that one of the sons of the deceased employee is already in employment of Government i.e. in Uttarakhand Forest Department, therefore, appointment on compassionate ground cannot be given to the petitioner and, therefore, this reasoning adopted is totally wrong. In the counter-affidavit filed by respondent Nos. 2, 3 and 4, they have relied upon Rule 5 of the Dying in Harness Rules, which reads as follows:

"(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 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 dependent of the abovesaid deceased Government servant immediately before his death."

Now the contention of the State is that since elder brother of the petitioner, namely, Sri Noman Khan is a Government employee, therefore, the petitioner cannot be granted appointment on compassionate ground under Dying in Harness Rules. This argument of the State Counsel is totally misconceived, inasmuch, as Rule 5 only states that such an appointment shall not be given in case the spouse of the deceased is already employed in the Government service. It is not the case, where the spouse of the deceased was employed in Government service. One who is employed in the Government service is the son of the deceased, who is presently living separately and merely because one of the sons of the deceased is employed, it cannot be a ground of denying the employment to the petitioner. Moreover, what further goes in favour of the petitioner is that the elder son of the deceased is living separately and is not supporting the family (the one who is employed), as such, the son of the deceased should be given an appointment on compassionate ground under Dying in Harness Rules and the appointment of the petitioner.

In view thereof, the writ petition is allowed. The impugned order dated 27.08.2011, passed by the respondent No. 3 is quashed. The Director, Agriculture, Uttarakhand, Dehradun is hereby directed to immediately give appointment to the petitioner on compassionate ground under Dying in Harness Rules, considering the qualification of the petitioner and availability of post. No order as to costs.