# S.T. No. 147/08, State v. Brajnandan

- **Citation:** (2011) 3 ILRA 1029
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-23
- **Case number:** Civil Misc. Writ Petition No. 148 of 2008
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-t-no-147-08-state-v-brajnandan-42027
- **Pages:** 14

## Headnote

Servants Dying in Harness-Rules 1974Rule-5-(1)-compassionate
appointmentclaimed by widow-within time-requesting
her elder son (Petitioner) be appointed on
attaining the age of majority few days
after 5 years-again request made-rejection
on
ground
of
time
barred
without
consideration
of
family
crisis-held-not
proper matter remitted back for fresh
consideration within time bound period.

Held:Para 22

From a plain reading of the provisions of
Rule 5 (1) of the Dying-in-Harness Rules, it
is clear that in a case Government servant
dies in harness after commencement of
the said rules and the spouse of deceased
government
servant
is
not
already
employed under Central Government or a
State Government or a Corporation owned
or controlled by Central Government or a
State Government one member of his
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
family, who is not already employed under
the
Central
Government
or
a
State
Government or a Corporation owned or
controlled by Central Government or State
Government,
shall
be
given
suitable
employment in government service on a
post except the post which is within the
purview of U.P. Public Service Commission
in relaxation of the normal recruitment
rules, if such person - (i) fulfils educational
qualification prescribed for the purpose;
(ii) is otherwise qualified for government
service; and (iii) makes the application for
employment within five years from the
date of death of government servant. The
proviso attached with the said rule further
provides that where the State Government
is satisfied that the time limit fixed for
making 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. In other words where
the State Government is satisfied that
aforesaid time limit of 5 years fixed for
making application for employment from
the date of death of government servant
causes undue hardship in any particular
case it may dispense with or relax the
requirement of said time limit of 5 years,
as it may consider necessary for dealing
with the case in a just and equitable
manner. Thus, in my opinion, if the
situation
of
any
particular
case
so
warrants, the period of 5 years limitation
provided
for
making
application
for
employment can be further extended
beyond the said period.
Case law discussed:
AIR 1989 SC 1976; AIR 1991 SC 469; (1994) 4
S.C.C. 138; (2010) 11 SCC 661; 2010 (7) ADJ
page 1; (2001) 2 U.P.L.B.E.C., 1597; 2003 (2)
U.P.L.B.E.C. 1134

## Text

_Characters 0–39,471 of 47,043. This is a partial read: ask again with offset=39471 for what follows._

3 All] Pramod Kumar Rajak V. Registrar General, High Court Allahabad and others
1029
have
been established
against the
appellants. The record further indicate
that conviction u/s 201 IPC is difficult
to be sustained and the mother of the
deceased turned hostile and did not
support prosecution version. Impugned
judgement further indicates that both the
appellants were on bail during the trial
which liberty they have not misused. It
is further noted that there is no
likelihood of the appeal being heard in
near future and case of the appellants is
distinguishable from the case of the
husband Brajnandan Prasad alias Lallan.
On an overall facts and circumstances, I
consider it appropriate to release the
appellants on interim bail for a period of
two months, pending consideration of
their final bail prayer.

35. Let the appellants Smt. Tara
Devi and Shivdan Gaur be released on
interim bail on their furnishing a
personal bond of Rs. one lakh and two
sureties each in the like amount to the
satisfaction of trial court concerned in
S.T. No. 147/08, State Vs. Brajnandan
Prasad alias Lallan and others, u/s 498A, 306, 201 IPC, P.S. Mohammadabad
Gohana, district Mau, starting from
17.9.2011, on which date they shall be
released from jail. Their interim bail
shall lapse on 16.11.2011, on which
date
they
shall
surrender,
unless
meanwhile, their prayer for final release
on bail is allowed or rejected by this
court, and in that eventuality both the
appellants shall be bound by that order.
Further, office of this court is directed
to get the record of trial court within
three weeks. Learned AGA is allowed
two weeks time to file objection on the
bail prayer of the appellants. List this
appeal at the top of the list for
consideration of final bail prayer of the
appellants on 10.10.2011.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2011

BEFORE
THE HON'BLE SABHAJEET YADAV,J.

Civil Misc. Writ Petition No. 148 of 2008

Pramod Kumar Rajak

 ...Petitioner
Versus
Registrar General, High Court Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri A.N. Srivastava
Sri Sandeep Kumar
Sri A.K. Singh

Counsel for the Respondent:
Sri Amit Sthalekar
Sri Rajeev Gupta
C.S.C.

U.P. Recruitment of Dependent of Govt.
Servants Dying in Harness-Rules 1974Rule-5-(1)-compassionate
appointmentclaimed by widow-within time-requesting
her elder son (Petitioner) be appointed on
attaining the age of majority few days
after 5 years-again request made-rejection
on
ground
of
time
barred
without
consideration
of
family
crisis-held-not
proper matter remitted back for fresh
consideration within time bound period.

Held:Para 22

From a plain reading of the provisions of
Rule 5 (1) of the Dying-in-Harness Rules, it
is clear that in a case Government servant
dies in harness after commencement of
the said rules and the spouse of deceased
government
servant
is
not
already
employed under Central Government or a
State Government or a Corporation owned
or controlled by Central Government or a
State Government one member of his
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
family, who is not already employed under
the
Central
Government
or
a
State
Government or a Corporation owned or
controlled by Central Government or State
Government,
shall
be
given
suitable
employment in government service on a
post except the post which is within the
purview of U.P. Public Service Commission
in relaxation of the normal recruitment
rules, if such person - (i) fulfils educational
qualification prescribed for the purpose;
(ii) is otherwise qualified for government
service; and (iii) makes the application for
employment within five years from the
date of death of government servant. The
proviso attached with the said rule further
provides that where the State Government
is satisfied that the time limit fixed for
making 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. In other words where
the State Government is satisfied that
aforesaid time limit of 5 years fixed for
making application for employment from
the date of death of government servant
causes undue hardship in any particular
case it may dispense with or relax the
requirement of said time limit of 5 years,
as it may consider necessary for dealing
with the case in a just and equitable
manner. Thus, in my opinion, if the
situation
of
any
particular
case
so
warrants, the period of 5 years limitation
provided
for
making
application
for
employment can be further extended
beyond the said period.
Case law discussed:
AIR 1989 SC 1976; AIR 1991 SC 469; (1994) 4
S.C.C. 138; (2010) 11 SCC 661; 2010 (7) ADJ
page 1; (2001) 2 U.P.L.B.E.C., 1597; 2003 (2)
U.P.L.B.E.C. 1134

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. Heard Sri A.K. Singh, learned
counsel for the petitioner and Sri Rajeev
Gupta Advocate for the respondents.

2. By this petition, the petitioner has
challenged the order dated 22.8.2007
passed by District Judge, Sonebhadra
contained in Annexure-7 of the writ
petition,
whereby
the
claim
of
compassionate appointment of petitioner in
Judgeship, Sonebhadra under the U.P.
Recruitment of Dependents of Government
Servants Dying-in-Harness Rules, 1974
hereinafter referred to as the Dying in
Harness Rules has been rejected. A further
writ in the nature of mandamus is sought
for directing the respondent no.2 to appoint
the petitioner on the post of peon under
said rules in Judgeship Sonebhadra.

3. The brief facts leading to the case
are that one Sri Gopi Chandra Rajak
working as peon in the office of District
Judge, Sonebhadra died on 1.6.2002 while
in service, leaving behind him Smt. Munna
Devi his widow, Smt. Anita Devi married
daughter, Sri Pramod Kumar Rajak, Sri
Rajesh Kumar Rajak and Sri Kamlesh
Kumar Rajak minor sons. At the time of
death of Gopi Chandra Rajak the petitioner
was only 12 years 11 months and 6 days
old and was not eligible to get appointment
under Dying-in-Harness Rules, therefore,
his mother Munna Devi moved an
application on 31.7.2002 contained in
Annexure-1 of the writ petition, whereby
she
had
sought
her
compassionate
appointment on a suitable post under
Dying-in-Harness Rules. Thereupon on the
basis of report of 1st Additional District
Judge, the District Judge, Sonebhadra
(respondent no.2) had passed an order on
9.12.2002,
stating
that
under
the
recruitment rules educational qualification
for Class 4th post is 8th class pass whereas
Smt. Munna Devi has not at all received
any education and under the provisions of
Dying in Harness Rules, the educational
qualification cannot be relaxed. It was also
3 All] Pramod Kumar Rajak V. Registrar General, High Court Allahabad and others
1031
stated that the elder son of Smt. Munna
Devi namely Pramod Kumar Rajak
(petitioner) is near about 14 years old and
after 4 years he will be eligible for such
appointment hence two options were given
to Smt. Munna Devi; first was that if Smt.
Munna Devi insists for her appointment
then the permission shall be taken from the
Hon'ble High Court and second was that if
she will like her son namely Pramod
Kumar Rajak to be appointed as dependent
of her husband his claim can be considered
after completion of 18 years of his age on
the expiry of 4 years only, accordingly she
was asked to give her consent within 15
days. True copy of the order of respondent
no.2 dated 9.12.2002 is on record as
Annexure-2 of the writ petition.

4. It is stated that in pursuant to the
said order, Smt. Munna Devi moved an
application before the respondent no.2 on
23.12.2002 requesting that if she is not
eligible for appointment as dependent of
her husband then she gives her consent to
appoint her son Sri Pramod Kumar Rajak,
after completion of his 18 years age.
Thereafter Smt. Munna Devi moved
another application on 21.3.2006 as per
direction
of
respondent
no.2
dated
9.12.2002 requesting to appoint her son
(petitioner) as dependent of her husband
when he would attain the age of majority
i.e. 18 years by 5.6.2007. On 22.6.2006 the
District Judge had passed an order on the
said application directing to put up the
same before him when the petitioner would
attain the age of 18 years. A copy of said
application moved by the mother of the
petitioner bearing order dated 22.6.2006
passed by the District Judge, Sonebhadra is
on record as Annexure-4 of the writ
petition.

5. It is stated that on completion of
his age of 18 years the petitioner has also
moved an application on 3.7.2007 before
the respondent no.2 for his appointment
under Dying-in-Harness Rules, annexing
his High School pass mark sheet and High
School certificate and other certificates
including no objection certificate of his
mother. Thereupon on the same day the
District Judge directed the Incharge Officer
Nazarat Civil Judge (Senior Division),
Sonebhadra to submit report and after
going through the report dated 21.8.2007
submitted
by
Incharge
Officer,
Nazarat/Civil Judge (Senior Division),
Sonebhadra, he has passed the impugned
order dated 22.8.2007 served to the
petitioner on 12.9.2007, rejecting the claim
of compassionate appointment of the
petitioner. True copy of application of the
petitioner
along
with
no
objection
certificate filed by his mother and true
copy of the impugned order dated
22.8.2007 are on record as Annexures-5, 6
and 7 of the writ petition.

6. It is submitted that immediately
after attaining the age of majority the
petitioner filed his representation on
3.7.2007 only one month 2 days later on
expiry of five years period of limitation
provided under rule from the date of death
of his father. Although the proviso of said
rules further empowers the Government to
consider the compassionate appointment
even after expiry of said prescribed period
of 5 years from the date of death of the
deceased Government servant by relaxing
the aforesaid time limit, but respondent did
not consider the said proviso of rules and
illegally
and
arbitrarily
rejected
the
representation filed by the petitioner by
impugned order dated 22.8.2007 holding
that the same was not maintainable.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

7. It is stated that the father of the
petitioner died on 1.6.2002 leaving behind
his widow, one daughter and three sons.
All the three sons are unemployed and still
unmarried, therefore, a lot of financial and
social liability are lying upon the petitioner
but for want of employment the petitioner
is unable to bear the liability suddenly fell
upon him. It is also stated that the mother
of the petitioner Smt. Munna Devi is a
patient of heart and diabetes and lot of
money was spent in her treatment. Besides
this, two other brothers of the petitioner
namely Rajesh Kumar Rajak and Kamlesh
Kumar Rajak are students of Class 11th
and 8th respectively and there is no other
source of income for survival of the
family, therefore, the petitioner is entitled
to get the compassionate appointment on
the post of peon.

8. A detailed counter affidavit has
been filed in writ petition on behalf of
District Judge, Sonebhadra, whereby the
action taken by the District Judge has been
sought to be justified mainly on the ground
that when the mother of the petitioner has
moved
representation
for
the
compassionate
appointment
of
the
petitioner on the dates mentioned in the
writ petition including on 21.3.2006 the
petitioner was minor at that time and not
eligible for appointment on the post in
question and the petitioner has moved the
application
for
his
compassionate
appointment first time on 3.7.2007 after
expiry of five years period of limitation
prescribed for appointment under Rule 5 of
Dying in Harness Rules and power of
relaxation after the aforesaid period lies
with the State Government but the
petitioner did not make any prayer for
forwarding his application to the State
Government, therefore, no appointment
could be given to him under the said rules.

9. For ready reference the stand taken
by the respondents in paragraphs 6, 7, 13
and 16 of the counter affidavit is disclosed
as under:-

"6. That on the application of Shri
Pramod Kumar Razak the then District
Judge, called for the report from Officer
In-Charge-Nazarat/Civil
Judge
(S.D.).
Report was submitted by Officer InCharge-Nazarat/Civil Judge (S.D.) on
21.8.2007. On the report of Officer InCharge Nazarat/Civil Judge (S.D.) an
order was passed by the then District
Judge dated 22.8.2007, in which the then
District Judge rejected the application of
Shri Pramod Kumar Razak mainly on the
ground that the applicant Pramod Kumar
Razak did not attain the age of majority by
31.5.2007. It is relevant to mention here
that the applicant's father Late Gopi
Chand Razak died on 1.6.2002 and the
applicant had to apply within the period of
5 years i.e. on or before 31.5.2007, but
applicant
moved
an
application
on
3.7.2007. Thus, it is clear that the
applicant
moved
the
application
in
question after the expiry of limitation
period.

7. That it is relevant to mention here
that as per said Rules, only the Stage
Government has power to relax the period
of limitation. And it is still open for the
petitioner to move an application before
the State Government for relaxing the
period of limitation as prescribed under
above mentioned Rules.

13. That in reply to the contents of
paragraph 12 of the writ petition, it is
stated that it is correct to say that Smt.
Munna Devi gave her consent on
23.12.2002 for her son's appointment. It is
also true that Smt. Munna Devi filed an
3 All] Pramod Kumar Rajak V. Registrar General, High Court Allahabad and others
1033
application on 21.3.2006 for considering
the appointment of her son. But on that
date petitioner was minor. It is relevant to
mention here that the father of the
petitioner did on 1.6.2002 and the period
of limitation to move an application under
rule 5 of U.P. Dying in Harness Rules,
1974 (Anx. 9 to w.p.) was available to him
till 31.5.2007 only. He attained the age of
majority
on
4.6.2007.
Thus,
before
31.5.2007 he was not eligible for said
appointment as the petitioner was minor.
Hence there is no illegality in the order
passed by the then District Judge dated
22.8.2007. The true copy of the order
passed by the then District Judge is being
annexed herewith and marked as Annexure
No.C.A.2 to this counter affidavit. The true
copy of this order which has been filed as
Annexure
no.7
to
writ
petition
is
incomplete as two lines since 31.5.2007 to
31.5.2007 are missing in it.

16. That in reply to the contents of
paragraph 16 of the writ petition, it is
stated that the petitioner did not attain the
age of majority as on 31.5.2007, but he
attained the age of majority on 4.6.2007,
which is also admitted by the petitioner's
mother in her letter dated 3.7.2007. It is
further stated that in application given by
the petitioner on 3.7.2007, there was no
prayer to forward the application to State
Government for the purpose of relaxing the
limitation period. It is pertinent to mention
here that the petitioner still has right to
move
the
application
to
the
State
Government as to relaxation of the
limitation period."

10. In given facts and circumstances
of the case, learned counsel for the
petitioner has submitted that at any view of
the matter the application moved by the
petitioner and his mother could not be
rejected by the District Judge, Sonebhadra
on the ground that the same was not
maintainable at all. At the most, when the
last application dated 21.3.2006 moved by
the mother of the petitioner was found to
be incompetent on the said date on the
ground that at that time the petitioner could
not attain the age of majority i.e. 18
years/minimum
age
prescribed
for
Government employment, the appointing
authority could have kept the aforesaid
application of mother of the petitioner
pending till he attains the age of majority
i.e. till 4.6.2007 and thereafter would have
considered the case of the petitioner on
merit. It is no doubt true that by that time
the application could be barred by time by
3-4 days after expiry of prescribed period
of five years limitation from the date of
death of father of the petitioner but having
regard to the financial hardship of the
family of the deceased employee the
matter could be referred before the High
Court for relaxing the period of limitation
as provided under the proviso (1) of Rule 5
(1) of Dying in Harness Rules.

11. Learned counsel for the petitioner
further submitted that while considering
the financial condition of family of
deceased Govt. servant for the purpose of
compassionate appointment, payment of
family
pension,
leave
encashment,
provident fund, insurance etc. to the widow
of deceased Govt. servant should not be
taken into account and may not be made
ground for refusal of such appointment. In
support of his aforesaid submissions, he
has placed reliance upon the several
decisions, which will be referred at
relevant places hereinafter.

12.

Thus,
in
view
of
rival
submissions of the parties, first question
arises for consideration is that as to
1034 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
whether in given facts and circumstances
of the case the District Judge, Sonebhadra
was justified in rejecting the claim of
compassionate
appointment
of
the
petitioner
holding
it
to
be
not
maintainable?

13. In order to answer this question,
it is necessary to notice some case law and
statutory
provisions
having
material
bearing on the question in controversy
involved in the case. In Sushma Gosain
V. Union of India - AIR 1989 SC 1976,
the Apex Court held that ".....in all claims
for
appointment
on
compassionate
grounds, there should not be any delay in
appointment. The purpose of providing
appointment on compassionate ground is
to mitigate the hardship due to death of the
bread
earner
in
the
family.
Such
appointment should, therefore, be provided
immediately to redeem the family in
distress. It is improper to keep such case
pending for years. If there is no suitable
post for appointment supernumerary post
should be created to accommodate the
applicant."

[emphasis supplied]

14. The aforesaid decision was also
followed in Phoolwati Vs. Union of
India-AIR 1991 SC 469 wherein it has
been held that " the reason for making
compassionate appointment, which is
exceptional, is to provide immediate
financial assistance to the family of a
government servant who dies in harness,
when there is no other earning member in
the family.

15. In Umesh Kumar Nagpal Vs.
State of Haryana & others, (1994) 4
S.C.C. 138, while dealing with the nature
and
object
of
the
compassionate
appointment, the posts against which, and
period under which such appointment may
be offered, in para 2, of the decision the
Hon'ble Apex Court held that the whole
object
of
granting
compassionate
employment is thus to enable the family to
tide over the sudden crisis. The object is
not to give a member of such family a post
much less a post for post held by the
deceased. What is further, mere death of
an employee in harness does not entitle his
family to such source of livelihood. The
Government or the public authority
concerned has to examine the financial
condition of the family of the deceased,
and it is only if it is satisfied, that but for
the provision of employment, the family
will not be able to meet the crisis that a job
is to be offered to the eligible member of
the family. The posts in Classes III and IV
are the lowest posts in non-manual and
manual categories and hence they alone
can be offered on compassionate ground,
the object being to relieve the family, of the
financial destitution and to help it get over
the
emergency.
The
provision
of
employment in such lowest posts by
making an exception to the rule is
justifiable and valid since it is not
discriminatory. The favourable treatment
given to such dependant of the deceased
employee in such posts has a rational
nexus with the object sought to be
achieved, viz., relief against destitution. No
other posts are expected or required to be
given by the public authorities for the
purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . The exception to the rule made in
favour of the family of the deceased
employee is in consideration of the
services
rendered
by him
and
the
legitimate expectations, and the change in
the status and affairs, of the family
engendered by the erstwhile employment
which are suddenly upturned."
3 All] Pramod Kumar Rajak V. Registrar General, High Court Allahabad and others
1035

16. In para 6 of the said decision
Hon'ble Apex Court, further held that; "For
these very reasons, the compassionate
employment cannot be granted after a
lapse of a reasonable period which must be
specified in the rules. The consideration for
such employment is not a vested right
which can be exercised at any time in
future. The object being to enable the
family to get over the financial crisis which
it faces at the time of the death of the sole
breadwinner,
the
compassionate
employment cannot be claimed and offered
whatever the lapse of time and after the
crisis is over."

17. In State Bank of India and
another Vs. Raj Kumar (2010) 11 SCC
661, the applicability of old scheme for
compassionate appointment, vis-a-vis new
substituted scheme for ex gratia payment,
was under consideration before the Apex
Court. While dealing with the nature and
scope of compassionate appointment, and
impact
of
new
scheme
for
such
appointment, in paragraphs 8 of the said
decision the Apex Court held as under:

"8. . . . . . . . .The claim for
compassionate appointment is therefore
traceable only to the scheme framed by the
employer for such employment and there is
no right whatsoever outside such scheme.
An appointment under the scheme can be
made only if the scheme is in force and not
after it is abolished/withdrawn. It follows
therefore that when a scheme is abolished,
any
pending
application
seeking
appointment under the scheme will also
cease to exist, unless saved. The mere fact
that an application was made when the
scheme was in force, will not by itself
create a right in favour of the applicant.

18. Thus, in view of legal position
stated by Hon'ble Apex Court it is
necessary to examine the scheme of Dying
in Harness Rules applicable to the
Government employees and employees of
Subordinate
judiciary
with
necessary
modifications.

19. Rule 5 of Dying in Harness Rules
deals with eligibility criteria and time limit
for making application for compassionate
appointment of members of family of
deceased Government servant. The same is
quoted 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 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
1036 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(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.

Provided further that for the purpose
of the aforesaid proviso, the person
concerned shall explain the reasons and
give
proper
justification
in
writing
regarding the delay caused in making the
application for employment after the
expiry of the time limit fixed for making the
application for employment along with the
necessary documents/proof in support of
such delay and the Government shall, after
taking into consideration all the facts
leading to such delay take the appropriate
decision.

(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) Every appointment made under
sub-rule (1) shall be subject to the
condition that the person appointed under
sub-rule (1) shall maintain other members
of the family of deceased Government
servant, who were dependent on the
deceased Government servant immediately
before his death and are unable to
maintain themselves.

(4) Where the person appointed under
sub-rule (1) neglects or refuses to maintain
a person to whom he is liable to maintain
under sub-rule (3), his services may be
terminated in accordance with the Uttar
Pradesh Government Servant (Discipline
and Appeal) Rules, 1999, as amended from
time to time."

20. Rule 6 deals with the contents of
application for employment as under:

6. Contents of application for
employment.-
An
application
for
appointment under these rules shall be
addressed to the appointing authority in
respect of the post for which appointment
is sought but it will be sent to the Head of
Office where the deceased Government
servant was serving prior to his death. The
application shall, inter alia, contain the
following information:

(a) the date of the death of the
deceased
Government
servant;
the
department in which he was working and
the post which he was holding prior to his
death;

(b) names, age and other details
pertaining to all the members of the family
of the deceased, particularly about their
marriage, employment and income.

(c) details of the financial condition of
the family; and

(d)
the
educational
and
other
qualifications, if any, of the applicant.

21. Rule 7 deals with procedure when
more than one member of the family seeks
employment. Rule 8 deals with relaxation
from
age
and
other
procedural
requirements. It would be useful to extract
the provisions contained in Rule 8 of
Dying in Harness Rules as under:-
3 All] Pramod Kumar Rajak V. Registrar General, High Court Allahabad and others
1037

"8. Relaxation from age and other
requirements.- (1) The candidate seeking
appointment under these rules must not be
less than 18 years at the time of
appointment.

(2) The procedural requirements for
selection, such as written test or interview
by a selection committee or any other
authority, shall be dispensed with, but it
shall be open to the appointing authority to
interview the candidate in order to satisfy
itself that the candidate will be able to
maintain the minimum standards of work
and efficiency expected on the post.

(3) An appointment under these rules
shall be made against an existing vacancy
only."

22. From a plain reading of the
provisions of Rule 5 (1) of the Dying-inHarness Rules, it is clear that in a case
Government servant dies in harness after
commencement of the said rules and the
spouse of deceased government servant is
not already employed under Central
Government or a State Government or a
Corporation owned or controlled by
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 Central Government or State
Government, shall be given suitable
employment in government service on a
post except the post which is within the
purview
of
U.P.
Public
Service
Commission in relaxation of the normal
recruitment rules, if such person - (i) fulfils
educational qualification prescribed for
the purpose; (ii) is otherwise qualified for
government service; and (iii) makes the
application for employment within five
years from the date of death of government
servant. The proviso attached with the said
rule further provides that where the State
Government is satisfied that the time limit
fixed
for
making
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. In other words
where the State Government is satisfied
that aforesaid time limit of 5 years fixed
for making application for employment
from the date of death of government
servant causes undue hardship in any
particular case it may dispense with or
relax the requirement of said time limit of
5 years, as it may consider necessary for
dealing with the case in a just and
equitable manner. Thus, in my opinion, if
the situation of any particular case so
warrants, the period of 5 years limitation
provided for making application for
employment can be further extended
beyond the said period.

23. Rule-8 deals with the relaxation
from age and other requirements, but it
specifically stipulates that the candidate
seeking appointment under these rules
must not be less than 18 years at the time
of
appointment,
which
implies
that
minimum age limit of 18 years prescribed
for Government employment cannot be
relaxed by the authority, whereas upper
age limit fixed for employment can be
relaxed in suitable cases. Similarly in view
of Rule-5 (1) of Dying-in-Harness Rules,
the educational qualification prescribed for
the posts can also not be relaxed by the
authorities concerned. However, other
procedural requirement for selection such
as written test or interview by any selection
committee or authority shall be dispensed
with.
1038 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

24. Thus, a harmonious construction
of the aforestated rules, reveals that in
case, a member of family of deceased
Government servants makes an application
under Dying in Harness before he attains
the age of 18 years or an application is
moved on his behalf before attaining his
age of 18 years, although such candidate
cannot be given appointment unless he
attains the minimum prescribed age of
Government employment i.e. 18 years, but
his application should not be rejected
outrightly, instead thereof the proper
course of action would be that his
application should be kept pending and be
considered on merit only when he/she
attains 18 years age, provided he attains
the age of 18 years within a period of 5
years
time
limit
fixed
for
making
application for compassionate appointment
from the date of death of government
servant and if it is found that five years
prescribed
time
limit
for
making
application for employment from the date
of death of government servant has expired
prior to the date of attaining his 18 years
age, then the case of such applicant
should be considered on attaining his
age of majority i.e. on completion of his
18 years age under the proviso of Rule 5
(1) of Dying in Harness Rules only,
which empowers the State Government
to relax the aforesaid time limit of five
years and for that purpose, in my
opinion, it is to be seen that as to
whether family of deceased Government
servant still continues to suffer financial
distress or hardship occasioned by death
of bread earner so as to relax the period
within
which
application
for
employment could be made and family
can not be relieved from such financial
crisis or distress unless compassionate
appointment is given to a member of the
family of deceased government servant.
(Emphasis)

25. While considering the content
and import of proviso to Rule-5(1) of
Dying-in-Harness Rules a Division Bench
of this court in Vivek Yadav Vs. State of
U.P. and others, 2010 (7) ADJ page 1 in
para 7 and 8 of the decision has observed
as under:-

"7. ........ The proviso, in our opinion,
which confers power to relax the delay in
making an application within five years,
also must be read to include consideration
of an application even after expiry of 5
years if the applicant was a minor at the
time of death of the deceased employee
and
makes
an
application
within
reasonable time of attaining majority.

8.
The
power
to
relax
itself
contemplates that in a particular case, the
matter has to be dealt with in a just and
equitable manner. In other words, the test
to be applied is does the family of the
deceased continue to suffer financial
distress and hardship occasioned by the
death of the breadwinner so as to relax the
period within which the application could
be made. These are matters of fact, which
the competent authority would have to
consider. In the instant case, what we find
is that the application was rejected merely
because
it
was
beyond
the
time
prescribed."

26. Now next question arises for
consideration is that as to whether while
examining the financial stringency or
hardship of the family of deceased
government servant for the purpose of
compassionate appointment, the payment
of terminal dues like family pension,
gratuity, leave encashment, provident fund,
3 All] Pramod Kumar Rajak V. Registrar General, High Court Allahabad and others
1039
general insurance to the family of deceased
government servant can be taken into
account or can be made ground for refusal
of such employment to a member of the
family of deceased government servant?

27. This question has directly come
under consideration of this court earlier at
several occasions. In State Bank of India
and others Vs. Ram Piyarey and others,
(2001) 2 U.P.L.B.E.C. 1597, a Division
Bench of this court in paras 8 and 11 of the
decision observed as under:-

"8. It is well settled that the
Government or the public authority
concerned has to examine the financial
condition of the family of the deceased and
it is only if it is satisfied, that but for the
provision of employment, the family will
not be able to meet the crisis that a job is
to be offered to the eligible member of the
family.

11. In our opinion, the learned Single
Judge was correct in holding that the
receipt of family pension by the widow and
a sum of Rs. 1.42 lacs paid to widow after
deducting the loan cannot be taken to be a
good ground for rejecting the case for
appointment on compassionate ground. It
is common knowledge that the widow is
entitled to family pension and other
benefits in the event her husband dies in
harness. If the plea of the Bank is accepted
then no appointment can be made on
compassionate ground and the scheme of
the Bank shall have no meaning. We are of
the view that the learned Single Judge was
quite justified in allowing the writ petition.

28. The aforesaid decision has been
followed by this court in Sharda Devi
(Smt.) Vs. District Magistrate/Collector,
Ghaziabad
and
others,
2003
(2)
U.P.L.B.E.C. 1134 and these decisions are
binding upon this court, therefore, this
court can not take different view in the
matter.

29. Thus, in view of afore-stated
legal position, it is clear that while
considering the case of compassionate
appointment of dependent of government
servant, question of financial hardship or
stringency, which the family of deceased
government servant faces, has to be
considered and while doing so, it is to be
seen that whether the family of deceased
government
servant
suffers
financial
distress or hardship occasioned by death of
bread earner and family cannot be relieved
from such financial crisis without giving
compassionate
appointment
to
any
member of the family of deceased
Government servant. However, while
considering the financial stringency it is
not open for the appointing authority to
take into account the terminal dues of
deceased government servant payable to
his family for the refusal of compassionate
appointment to a member of his family,
otherwise the provisions of Dying in
Harness
Rules
would
be
rendered
meaningless for the reason that widow of
deceased Government servant always
receives family pension and other service
benefits like gratuity, leave encashment,
G.P.F. and other terminal dues on account
of death of Government servant. It is no
doubt true that while ascertaining the
financial condition of the family of
deceased government servant the current
income of the family accrued from
different sources should be ascertained and
be taken into account, thereupon, if it is
found that said income is not sufficient to
maintain and to tied over financial crisis of
the family caused on account of sudden
death of employee, in such situation, in my
1040 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
considered opinion, it is not open for the
appointing
authority
to
refuse
compassionate appointment to a member
of family of deceased government servant
on that count, if the dependent of the
government servant is otherwise eligible
and qualified for the post.

30. At this juncture it is also to be
noted that while applying the Dying-inHarness Rules to the employees of High
Court
and
Sub-ordinate
courts,
the
provisions of said Rules should be applied
with necessary modification. Thus, in case
of compassionate appointment in Subordinate courts, the power to relax the
rules, in my opinion, shall lie with the
High Court instead of State Government
for the reason that sub-ordinate courts are
under direct control and supervision of
High Court and not the State Government.

31. Now applying the aforesaid legal
proposition
in
given
facts
and
circumstances of the case, I find that it is
not in dispute that on the date of death of
Sri Gopi Chandra Rajak on 1.6.2002, the
petitioner was only 12 years 11 months
and 6 days old and was not eligible to get
appointment
under
Dying-in-Harness
Rules, therefore, his mother Munna Devi
moved an application on 31.7.2002
seeking her appointment on compassionate
basis on a suitable post but since she was
not qualified for any post in the District
Judgeship, therefore, an option was given
to her to seek compassionate appointment
of his elder son (petitioner) as dependent of
her husband on completion of his 18 years
age on expiry of four years. Accordingly,
she
has
given
her
consent
for
compassionate appointment of his son
(petitioner)
vide
applications
dated
23.12.2002 and 21.3.2006. On the said
application dated 21.3.2006 District Judge,
Sonebhadra had passed an order on
22.6.2006 directing to put up the same
before him when the petitioner would
attain the age of 18 years. But on
completion of his age of 18 years the
application of petitioner for compassionate
appointment dated 3.7.2007 was rejected
by the District Judge vide impugned order
dated 22.8.2007 on the ground that the
same was not maintainable.

32. It is not in dispute that period of
limitation for making an application for
compassionate appointment under rule 5(1)
of Dying-in-Harness Rules is prescribed as
five years from the date of death of
government servant. The aforesaid period
of limitation from the date of death of Gopi
Chandra Rajak expired on 31.5.2007. The
petitioner has attained the age of majority
i.e.