# Kumari Nisha v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 654
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-08
- **Case number:** Writ A No. 16068 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumari-nisha-v-state-of-u-p-ors-51727
- **Pages:** 6

## Headnote

Law
-
Compassionate
Appointment
-
Eligibility
under
U.P.
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974 -
Petitioner, a permanently disabled unmarried
daughter
of
a
deceased
Head
Master,
challenged the rejection of her compassionate
appointment application on the ground that her
brother was employed in government service -
Held, the District Basic Education Officer's
rejection
order
dated
26.12.2022
was
unsustainable as it incorrectly assumed financial
stability of the deceased's family based on the
brother's employment - The Rules of 1974, as
amended in 1999, only prohibit compassionate
appointment if the surviving spouse is in
government service, not if another family
member like a son is employed - No evidence
showed the brother's earnings supported the
family, especially as he resided separately, as
per his affidavit. (Paras 6, 14, 15, 16, 17)

B. Service Law - Interpretation of Rules of
1974 - Financial Dependency - The District
Basic Education Officer rejected the petitioner's
application assuming the family was not in
financial stress due to her brother's government
job - Held, the amended Rule 5(1) of the Rules
of
1974
does
not
bar
compassionate
appointment for dependent family members
when a son is employed, as his earnings may be
utilized for his own family and not the
deceased's dependents - The rejection order
lacked material evidence to support the finding
of financial sufficiency, rendering it contrary to
the Rules of 1974 and the Government Order
dated 04.09.2000. (Paras 8, 9, 15, 16)

C. Service Law - Remittance for Fresh
Consideration - The Court quashed the
rejection order dated 26.12.2022 for being
legally unsustainable - Held, the matter is
remitted to the District Basic Education Officer
to reconsider the petitioner's compassionate
appointment application in light of the correct
interpretation of the Rules of 1974, ensuring
compliance with principles of fairness and the
absence of prohibition against appointment
when a sibling is employed - Fresh order to be
passed within two months. (Para 17)
Writ Petition Allowed .
Order Dated 26.12.2022 Quashed - Matter
Remitted for Fresh Consideration.

## Text

654 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner from the stage of the chargesheet,
holding
inquiry
de
novo
in
accordance with law and the guidance in
this judgment. It will also be open to the
respondents, if they so think fit, to place the
petitioner
under
suspension
pending
inquiry, immediately after his reinstatement
and conclude the inquiry expeditiously. If
the respondents elect to place the petitioner
under suspension, they will pay the
petitioner subsistence allowance regularly,
and without fail. If the respondents elect to
undertake the inquiry proceedings afresh,
but
not
place
the
petitioner
under
suspension and assign him duties at
whatever station they desire, the petitioner
shall be paid his current salary with effect
from the date of his reinstatement. In either
event, the entitlement of the petitioner to
consequential benefits of arrears etc. shall
abide by the outcome of the disciplinary
proceedings and the orders made therein.

28. There shall be no order as to costs.
----------
(2024) 3 ILRA 654
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2024
BEFORE
THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 16068 of 2023

Kumari Nisha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Ashish Kumar (Nagvanshi)

Service
Law
-
Compassionate
Appointment
-
Eligibility
under
U.P.
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974 -
Petitioner, a permanently disabled unmarried
daughter
of
a
deceased
Head
Master,
challenged the rejection of her compassionate
appointment application on the ground that her
brother was employed in government service -
Held, the District Basic Education Officer's
rejection
order
dated
26.12.2022
was
unsustainable as it incorrectly assumed financial
stability of the deceased's family based on the
brother's employment - The Rules of 1974, as
amended in 1999, only prohibit compassionate
appointment if the surviving spouse is in
government service, not if another family
member like a son is employed - No evidence
showed the brother's earnings supported the
family, especially as he resided separately, as
per his affidavit. (Paras 6, 14, 15, 16, 17)

B. Service Law - Interpretation of Rules of
1974 - Financial Dependency - The District
Basic Education Officer rejected the petitioner's
application assuming the family was not in
financial stress due to her brother's government
job - Held, the amended Rule 5(1) of the Rules
of
1974
does
not
bar
compassionate
appointment for dependent family members
when a son is employed, as his earnings may be
utilized for his own family and not the
deceased's dependents - The rejection order
lacked material evidence to support the finding
of financial sufficiency, rendering it contrary to
the Rules of 1974 and the Government Order
dated 04.09.2000. (Paras 8, 9, 15, 16)

C. Service Law - Remittance for Fresh
Consideration - The Court quashed the
rejection order dated 26.12.2022 for being
legally unsustainable - Held, the matter is
remitted to the District Basic Education Officer
to reconsider the petitioner's compassionate
appointment application in light of the correct
interpretation of the Rules of 1974, ensuring
compliance with principles of fairness and the
absence of prohibition against appointment
when a sibling is employed - Fresh order to be
passed within two months. (Para 17)
Writ Petition Allowed .
Order Dated 26.12.2022 Quashed - Matter
Remitted for Fresh Consideration.

(Delivered by Hon'ble Manjive Shukla, J.)
3 All. Kumari Nisha Vs. State of U.P. & Ors.
655

1. Heard learned counsel appearing
for the petitioner, learned Standing Counsel
appearing for the Respondents No. 1 and 2
as well as Mr. Ashish Kumar Nagvanshi,
learned
counsel
appearing
for
the
Respondents No. 3 & 4.

2. Petitioner through this writ petition
has challenged the order dated 26.12.2022
passed by the District Basic Education
Officer, Gorakhpur, whereby petitioner's
application
for
her
compassionate
appointment has been rejected.

3. Facts of the case, in brief, are that
father of the petitioner while working on
the post of Head Master at Primary School
Manikapur,
Block
Belghat
District
Gorakhpur, died in harness on 07.12.2019.
On the date of death of petitioner's father,
there remained widow (mother of the
petitioner),
two
unmarried
sons
and
unmarried daughter in the family. Petitioner
is permanently disabled and her disability
has been quantified to the tune of 75% and
further she has been completely dependent
on the earnings of her father.

4. Petitioner's elder brother Mr.
Deepak Kumar is a government servant in
the Provincial Armed Constabulary (PAC)
of U.P. and is posted at District Jaunpur.
Mr. Deepak Kumar along with his family is
residing at District Jaunpur.

5. Petitioner after the death of her
father
submitted
application
for
her
compassionate appointment and along with
the said application, she also filed an
affidavit given by her elder brother,
wherein he has categorically stated that he
is in government job but is residing
separately from his parents and he has no
objection if the compassionate appointment
in lieu of death of his father is offered to
the petitioner.

6. The District Basic Education
Officer,
Gorakhpur
has
rejected
the
application of the petitioner for her
compassionate appointment vide order
dated 26.12.2022. The ground for rejection
of
the
petitioner's
application
for
compassionate appointment is that the
eldest son of late Indra Dev (father of the
petitioner) is employed in the Provincial
Armed Constabulary (PAC) of the State of
U.P. and therefore, there is no financial
stress with the family of late Indra Dev and
further since eldest son of the deceased
teacher is employed with the State
Government,
the
compassionate
appointment of the member of the family is
not permissible under U.P. Recruitment of
Dependants of Government Servant Dying
in
Harness
Rules,
1974
(hereinafter
referred to as "the Rules of 1974").

7. Learned counsel appearing for the
petitioner has submitted that petitioner's
brother in his affidavit filed before the
District
Basic
Education
Officer,
Gorakhpur has categorically stated that
though he is employed but is residing
separately from his parents therefore, there
was no material available with the District
Basic Education Officer, Gorakhpur to
infer that the petitioner's brother is
providing sufficient financial support to the
family of late Indra Dev (deceased teacher).

8. Learned counsel appearing for the
petitioner has also submitted that the
legislature while making amendment in the
Rules of 1974 by promulgating Uttar
Pradesh Recruitment of Dependants of
Government Servant Dying in Harness
(Fifth) Amendment Rules, 1999, was
conscious of the fact that even if one son of
the deceased government servant is in
employment, that cannot be a reason for
denying the compassionate appointment to
656 INDIAN LAW REPORTS ALLAHABAD SERIES
other son or daughter (as the case may be)
as the earnings of the employed son may be
utilized for his family alone and may not be
available for the sustenance of the
remaining
family
of
the
deceased
government servant therefore, only one
exception has been carved out and it has
been provided that where surviving spouse
of deceased government servant is in
government
job,
compassionate
appointment shall not be offered to any
other family member of the deceased
government servant.

9. Learned counsel appearing for the
petitioner has argued that once there is no
such prohibition either under the Rules of
1974 or under the Government order dated
04.09.2000 that if one son or daughter is in
government
job,
the
compassionate
appointment shall not be given to other son
or daughter (as the case may be) dependent
on the deceased government servant
therefore,
apparently
order
dated
26.12.2022 passed by the District Basic
Education Officer, Gorakhpur is against the
spirit of the Rules of 1974 and the
Government order dated 04.09.2000 and
accordingly cannot sustain in the eyes of
law.

10. Learned counsel appearing for the
petitioner has also vehemently argued that
once brother of the petitioner Mr. Deepak
Kumar has given affidavit before the
District
Basic
Education
Officer,
Gorakhpur categorically mentioning therein
that he is residing separately from his
parents
therefore,
unless
there
was
sufficient evidence, there was no occasion
for the District Basic Education Officer,
Gorakhpur to reject petitioner's application
for compassionate appointment on the
ground that brother's income is being
utilized for sustenance of the family of late
Indra Dev (deceased teacher) accordingly,
order dated 26.12.2022 cannot sustain in
the eyes of law.

11. Per contra, Mr. Ashish Kumar
Nagvanshi, learned counsel appearing for
the Respondents No.3 and 4 has contended
that the District Basic Education Officer,
Gorakhpur has considered the entire matter
and has found that on the date of death of
petitioner's father, her brother was in
government job and therefore, surviving
family of late Indra Dev (deceased teacher)
was not in financial stress and accordingly
petitioner's
case
for
compassionate
appointment has been rejected vide order
dated 26.12.2022.

12. Mr. Ashish Kumar (Nagvanshi),
learned
counsel
appearing
for
the
Respondent Nos. 3 & 4 has vehemently
argued that the Rules of 1974 have been
amended in the year 1999 and it has been
provided that if the surviving spouse of the
deceased
government
servant
is
in
government job, then the other family
members dependent on the deceased
government servant shall not be entitled for
compassionate appointment and therefore,
the spirit of the Rules of 1974 and the
Government order dated 04.09.2000 is
apparent that if any member of the family
is in government job then the family of the
deceased government servant shall not be
in financial stress and accordingly the other
dependent family members cannot claim
compassionate appointment.

13. Mr. Ashish Kumar Nagvanshi,
learned
counsel
appearing
for
the
Respondent Nos. 3 & 4 has thus concluded
his arguments by submitting that the
compassionate appointment cannot be
claimed as a matter of right and in the
present case, the District Basic Education
3 All. Kumari Nisha Vs. State of U.P. & Ors.
657
Officer, Gorakhpur has considered the
entire material available on record and has
recorded a finding that the surviving family
of the deceased teacher is not in financial
stress and thus has rejected the petitioner's
case for compassionate appointment vide
order dated 26.12.2022 therefore, the order
dated 26.12.2022 does not call for any
interference by this Court and the writ
petition filed by the petitioner is liable to be
dismissed.

14. I have considered the rival
submissions advanced by the learned
counsels appearing for the parties and I find
that the District Basic Education Officer,
Gorakhpur has rejected the petitioner's case
for
compassionate
appointment
on
following two grounds :

(i) Petitioner's brother is in
government job and therefore, she is not
entitled for compassionate appointment
under the Rules of 1974.

(ii) Since petitioner's brother was
in government job on the date of death of
her father and he was unmarried therefore,
his earnings were sufficient for sustenance
of the surviving family.

15. For arriving at a correct
conclusion in this matter, it is necessary to
have a brief look over the provisions made
for compassionate appointment in the Rules
of 1974. Unamended Rule 5 (1) of the
Rules of 1974 reads as under :-

"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, 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
or which was previously within the purview
of the Uttar Pradesh Public Service
Commission and has later on, been placed
within the purview of the Uttar Pradesh
Subordinate Service Selection Commission
in relaxation of the normal recruitment
rules, if such person-

(1)
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.

16. Later on, the aforesaid Rule 5(1)
of the Rules of 1974 has been amended by
U.P.
Recruitment
of
Dependants
of
Government Servant Dying in Harness
(Fifth) Amendment Rules, 1999 and the
amended Rule 5(1) reads as under :-

"5(1) 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
658 INDIAN LAW REPORTS ALLAHABAD SERIES
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 recruitment as it may consider
necessary for dealing with the case in a just
and equitable manner."

17. This Court finds that initially Rule
5(1) of the Rules of 1974 provided for
compassionate appointment to one family
member
dependent
on
the
deceased
government servant provided he is not in
government job meaning thereby that there
was
only
one
condition
where
the
compassionate appointment could have
been
refused
i.e.
person
seeking
compassionate appointment was already in
government job. Later on, Rule 5(1) of the
Rules of 1974 has been amended in the
year 1999 and amended Rule 5(1) provides
that if the surviving spouse of the deceased
government servant is in government job
then the other family members dependent
on the deceased government servant shall
not
be
entitled
for
compassionate
appointment.

15. This Court further finds that the
legislature while amending Rule 5(1) of the
Rules of 1974 was conscious of the fact
that if one son of the deceased government
servant is in government job, his earnings
may not be available for survival of the
remaining family members of the deceased
government servant for the reason that the
earnings of the son are meant for survival
of his own family (his wife and children)
and therefore only one prohibition has been
incorporated that if the surviving spouse of
the deceased government servant is in
government job, the other dependent family
members are not entitled for compassionate
appointment.

16. This court is of the view that once
there is no prohibition under the Rules of
1974 and the Government order dated
04.09.2000 wherein identical provision has
been
made
for
the
compassionate
appointment on the death of a teacher, that
if one son of the deceased teacher is in
government job, the other dependent family
member of the deceased teacher is not
entitled for compassionate appointment,
there cannot be any occasion for the
District Basic Education Officer, Gorkhpur
to reject petitioner's case for compassionate
appointment on the ground that her brother
is in government job. Petitioner's brother
has given his affidavit, wherein he has
categorically stated that though he is in
government job but is residing separately
from his parents, therefore, unless there
was some material before the District Basic
Education Officer, Gorakhpur, he could not
have
recorded
a
finding
that
since
petitioner's brother is in government job,
his earnings are sufficient for sustenance of
surviving family of the deceased teacher
3 All. Smt. Neetu Sharma Vs. State of U.P. & Ors.
659
accordingly, order dated 26.12.2022 is not
sustainable in the eyes of law.

17. In view of the aforesaid reasons,
this writ petition is allowed. Order dated
26.12.2022 passed by the District Basic
Education Officer, Gorakhpur is quashed.
Matter is remitted to Respondent No. 4 to
consider the petitioner's matter afresh in
the light of this order and to pass fresh
order within a period of two months from
the date of presentation of certified copy of
this order.
----------
(2024) 3 ILRA 659
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2024
BEFORE
THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 16473 of 2023

Smt. Neetu Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Kumar Kesherwani

Counsel for the Respondents:
C.S.C., Sri Rama Nand Pandey

Service
Law
-
Compassionate
Appointment - U.P. Government Order
Dated 04.09.2000 - Petitioner challenged the
rejection of her compassionate appointment
application following the death of her mother-inlaw, an Assistant Teacher, on 28.12.2017 -
Held, the District Basic Education Officer's order
dated 08.09.2023 rejecting the petitioner's
application was valid, as her husband's prior
application for compassionate appointment on a
clerical post was registered but not fulfilled due
to lack of vacancies within the five-year period
prescribed under Clause 5 of the Government
Order dated 04.09.2000 - His refusal to opt for
a Class-IV post and the expiration of the fiveyear period led to the automatic rejection of his
claim, precluding a second application by the
petitioner. (Paras 5, 15, 16, 17, 18)

Service Law - Limitation on Successive
Applications
for
Compassionate
Appointment - The petitioner's husband
applied for compassionate appointment on a
clerical post, which was not granted due to
unavailability of vacancies, and his claim lapsed
after five years as per the Government Order
dated 04.09.2000 - Held, there is no provision
under the Government Order for a second
application by another family member after the
initial claim is extinguished - The petitioner's
application, filed after her husband's death on
11.04.2023, was not maintainable, as successive
applications for compassionate appointment are
not permissible. (Paras 16, 17, 18)

Service Law - Non-Compliance with Court
Orders and Financial Stress - The petitioner
argued that her husband's application was not
decided despite a court order dated 23.11.2022,
and her family faced financial stress - Held, the
respondents' failure to comply with the court
order did not alter the fact that the husband's
claim lapsed after five years due to nonavailability of clerical posts and his refusal to opt
for
a
Class-IV
post
-
Compassionate
appointment is not a matter of right, and the
petitioner's claim could not be treated as a
continuation of her husband's application - The
rejection order dated 08.09.2023 was upheld as
legally sound. (Paras 6, 7, 8, 16, 18)

Writ Petition Dismissed .

Order Dated 08.09.2023 Upheld.

(Delivered by Hon'ble Manjive Shukla, J.)

1.

Heard
Mr.
Kamal
Kumar
Kesherwani, learned counsel appearing for
the petitioner, learned Standing Counsel
appearing for the Respondents No. 1 to 3
and Mr. Rama Nand Pandey, learned
counsel appearing for the Respondents No.
4 & 5.

2. Petitioner through this writ
petition has assailed the order dated
08.09.2023 passed by the District Basic