# Harshit Prakash v. State of U.P. & Ors. 808 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2022) 10 ILRA 807 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-08-23 - **Case number:** Writ-A No. 12181 of 2022 - **Bench:** Karunesh Singh Pawar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harshit-prakash-v-state-of-u-p-ors-808-indian-law-reports-allahabad-series-47851 - **Pages:** 4 ## Headnote Law - Compassionate Appointment - U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974: Rule 5 - The very language of Rule 5 of 1974 Rules is explicitly clear that it shall apply only in those cases where the government servant dies in harness and his/her spouse is not already employed with the government, only in that case the application for compassionate appointment shall be considered. (Para 6) It is admitted case of the petitioner that his father was working with the State Government at the time of death of his mother who was already a government servant, therefore, in view of the clear statutory provision of Rule-5 of 1974 Rules, the petitioner is not entitled for being considered on compassionate grounds and therefore his candidature has rightly been rejected by the impugned order. (Para 7) Perusal of the impugned order dated 17.10.2016 shows that the candidature of the petitioner has not been rejected on the ground of his sound financial status rather has been rejected as the other spouse i.e. father of the petitioner was in government service at the time of death of the deceased (mother of the petitioner) who was also in government service. (Para 8, 9) Writ petition dismissed. (E-4) Present petition assails order dated 17.10.2016, passed by Director, Directorate of Child Development, Nursing and Nutrition, U.P., Lucknow and orders dated 21.10.2016 and 13.06.2022, passed by District Program Officer, Kanpur Nagar. ## Text 10 All. Harshit Prakash Vs. State of U.P. & Ors. 807 contents of F.I.R. lodged against the petitioners. 19. On instructions, it has been stated at Bar by learned counsel for parties that in criminal case, investigation is still not concluded, therefore, as held earlier stage has still not come for consideration of Regulations No. 492 and 493. The contents of charge in the departmental proceedings are referred in paragraph No. 11 of this judgment that are of negligence and due process was not followed by the petitioners when victim was kept under detention, so much as no medical facility was provided as well as he was not produced before the Magistrate within 24 hours as prescribed under Criminal Procedure Code whereas in the first part of F.I.R., there was no allegation against petitioners, however, in later part of F.I.R., an allegation against the petitioners was also made that deceased was kept under detention illegally and no medical treatment was given to him. 20. Therefore, it cannot be said that departmental proceedings and criminal case are based on absolutely identical set of facts, though, similar to some extent. In the memo of charge, proposed witnesses are mentioned, however, till date investigation is not concluded. Therefore, outcome of the investigation is not on record and details of proposed witnesses are unknown at present stage. 21. At this stage to take a definite view that proposed witnesses, if any, be identical in the criminal case would not be a correct approach and since trial is not commenced till date and therefore, even the contents of Regulation No. 492 and 493 does not bar to continue with the departmental proceedings. However, during proceedings, the petitioners are at liberty, in case investigation is concluded and further in case any charge sheet is filed, and the proposed witnesses are same and the petitioners are able to show that continuance of departmental proceedings would cause prejudice to them, the concerned authority, if such departmental proceedings are not concluded, would be under obligation to consider grievance of the petitioners and at that stage, appropriate decision could be taken to continue with the departmental inquiry or not. 22. However, at this stage, the Court is of the view that there is no bar to continue with the departmental proceedings. 23. In view of above, the prayers made in this petition are rejected and the respondents are directed to proceed further with the departmental proceedings. However, after filing of the charge sheet, if any, and at the stage of commencement of trial the petitioners would have liberty to bring subsequent event on record in departmental proceedings, that continuation of the departmental proceedings may cause prejudice to them and in that case, the respondents shall take an appropriate decision. 24. In view of above and also considering the law on issue as well as facts of the present case, this writ petition is dismissed with aforesaid observations. ---------- (2022) 10 ILRA 807 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.08.2022 BEFORE THE HON'BLE KARUNESH SINGH PAWAR, J. Writ-A No. 12181 of 2022 Harshit Prakash ...Petitioner Versus State of U.P. & Ors. ...Respondents 808 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Petitioner: Sri Jitendra Kumar Counsel for the Respondents: C.S.C. A. Service Law - Compassionate Appointment - U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974: Rule 5 - The very language of Rule 5 of 1974 Rules is explicitly clear that it shall apply only in those cases where the government servant dies in harness and his/her spouse is not already employed with the government, only in that case the application for compassionate appointment shall be considered. (Para 6) It is admitted case of the petitioner that his father was working with the State Government at the time of death of his mother who was already a government servant, therefore, in view of the clear statutory provision of Rule-5 of 1974 Rules, the petitioner is not entitled for being considered on compassionate grounds and therefore his candidature has rightly been rejected by the impugned order. (Para 7) Perusal of the impugned order dated 17.10.2016 shows that the candidature of the petitioner has not been rejected on the ground of his sound financial status rather has been rejected as the other spouse i.e. father of the petitioner was in government service at the time of death of the deceased (mother of the petitioner) who was also in government service. (Para 8, 9) Writ petition dismissed. (E-4) Present petition assails order dated 17.10.2016, passed by Director, Directorate of Child Development, Nursing and Nutrition, U.P., Lucknow and orders dated 21.10.2016 and 13.06.2022, passed by District Program Officer, Kanpur Nagar. (Delivered by Hon'ble Karunesh Singh Pawar, J.) 1. Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for respondent no. 1 to 4. 2. Through this petition the petitioner has prayed for the following relief:- "a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.10.2016 (Annexure - '1' to this writ petition) passed by the respondent no.2 as well as impugned order dated 21.10.2016 and 13.06.2022 (Annexure - '2' & '3' respectively to this writ petition) passed by the respondent no.3. b) Issue a writ, order or direction in the nature of mandamus commanding upon the respondents to grant compassionate appointment to the petitioner in the respondent department, forthwith." 3. Learned counsel for the petitioner submits that the mother of the petitioner who was a government servant and was serving as Mukhya Sevika in the office of Child Development Project Kanpur (Pratham), Kanpur Nagar has died on 20.02.2016 while she was in service. The petitioner being the elder son along with two sisters in the family submitted an application for compassionate appointment on 03.05.2016 along with requisite documents. The Director Child Development, Nursing and Nutrition, U.P. Lucknow rejected the petitioner's application for compassionate appointment vide impugned order dated 17.10.2016 and by a consequent order, the District Program Officer Kanpur has also issued impugned order dated 21.10.2016. Thereafter he gave a representation before the authorities that was also rejected vide order dated 10 All. Harshit Prakash Vs. State of U.P. & Ors. 809 13.06.2022 by the District Program Officer, Kanpur. 4. Learned Standing Counsel has opposed the petition submitting that both the parents of the petitioner were in government service. The mother Munni Devi @ Munni Kushwaha who was working as Mukhya Sevika in the office of Child Development Project Kanpur (Pratham), Kanpur Nagar died in the year 2016, however, Shri Umesh Kumar who is the father of the petitioner was working in the State Secretariat, therefore, the authorities found that since the father of the petitioner who is the bread earner of the family was still employed with the State Government, there is no occasion for giving the benefit of compassionate appointment to the petitioner. 5. The compassionate appointment to the dependents of the deceased, government servant is provided under Rule-5 of The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred as 1974 Rules) 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." 6. Perusal of Rule 5 of 1974 Rules shows that in case the death of the government servant during service after the commencement of the rules and the spouse of the deceased government servant is not already employed under the Central Government or the State Government etc. then on making an application by the dependent of the deceased government servant for the purpose of giving suitable appointment in government service he can be appointed on compassionate ground. The very language of Rule 5 of 1974 Rules is explicitly clear that it shall apply only in those cases where the government servant dies in harness and his/her spouse is not already employed with the government, only in that case the application for compassionate appointment shall be considered. 810 INDIAN LAW REPORTS ALLAHABAD SERIES 7. It is admitted case of the petitioner that his father was working with the State Government at the time of death of his mother who was already a government servant, therefore, in view of the clear statutory provision of Rule-5 of 1974 Rules, the petitioner is not entitled for being considered on compassionate grounds and therefore his candidature has rightly been rejected by the impugned order. 8. Learned counsel for the petitioner at this stage has drawn attention of the Court towards government order dated 17.06.2014 which is on record at page no. 32 of the petition and has submitted that the appointment under the Rules 5 of 1974 Rules cannot be refused merely on the ground that financial status of the applicant is sound. 9. Perusal of the impugned order dated 17.10.2016 shows that the candidature of the petitioner has not been rejected on the ground of his sound financial status rather has been rejected as the other spouse i.e. father of the petitioner was in government service at the time of death of the deceased (mother of the petitioner) who was also in government service and thus, the authority has rejected the claim of the petitioner on the ground that since the other spouse of the deceased was already in government service at the time of death of the mother of the petitioner, therefore, as per Rule - 5 of 1974 Rules, there was no occasion for providing compassionate appointment to the petitioner. 10. The petition being devoid of merits and is accordingly dismissed. ---------- (2022) 10 ILRA 810 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.08.2022 BEFORE THE HON'BLE NEERAJ TIWARI, J. Writ A No. 4174 of 2022 Km. Mohini ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Prakhar Tandon Counsel for the Respondents: C.S.C., Sri Shravan Kumar Pandey, Sri Shyam Narain Pandey, Sri Yashwant Singh A. Service Law - Compassionate Appointment - U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974; The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness (Twelfth Amendment) Rules, 2021 - Language of Rules is very much clear, which provides that first right of appointment on compassionate ground goes to husband or wife as the case may be in case of death of Government employee. (Para 6) In the present case, there is no dispute of fact that deceased-employee was married and his wife is alive and also claiming appointment on compassionate ground. Therefore, under the Rules, she is only entitled for appointment and no relief can be granted to petitioner-sister, which is at Serial No. 4 in order of hierarchy given in Rules, 1974 read with amended Rules 2021, in case deceased Government employee is unmarried. Therefore, petition is having no force and liable to be dismissed. (Para 7) Writ petition dismissed. (E-4) (Delivered by Hon'ble Neeraj Tiwari, J.)