Judgment 1. This special appeal under Rule 5 Chapter VIII of the High Court Rules has been filed against the judgment and order dated 15-06-2005 passed by the learned Single Judge of this Court in Civil Writ Petition No. 3090/2001 Rajendra Singh Vs. Divisional Forest Officer & others, whereby the learned Single Judge has dismissed the petition. 2. A Civil Writ Petition bearing No. 3090/2001 was filed before the learned Single Judge by the petitioner-Rajendra Singh for the following reliefs :- (a) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos.1-3 to appoint the petitioner in place of his deceased father Khushal Singh as a Tractor Operator according to the provisions framed by the Government of U.P. for its servants under Dying in Harness Rules. (b) Issue a writ, order or direction in the nature of mandamus commanding the respondents to make enquiry into the various representations made by petitioner's mother Ganeshi Devi for appointment of the petitioner i.e. representations dated 16-03-1993, 17-04-1993,24-03-1996, 05-09-1995 and 26-10-1999 according to letter No.2862/25-3 dated 04-052000 and forthwith and appoint the petitioner as per dying in harness Regulations No.6-121 1973 Niyukti (4) dated 07-10-1974. (c) Issue a writ or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case in favour of the petitioner. (d) Award the costs of this writ petition to the petitioner. (e) Issue a writ, order or direction in the nature of certiorari to quash the impugned order passed by the respondent no.1letter No. 3000 dated 17-05-2000 in dismissing the office letter No. 2862/25-3 dated 04-05-2000 (Annexure No.25 dated 17-05-2000) to this writ petitioner. 3. The father of the petitioner late Sri Khushal Singh was working in the Forest Department, Ram Nagar Vriksharopan-Van-Vibhag, Tarai Pashchimi, District Nainital on the post of Tractor Operator. The father of the petitioner died during his service on 18-09-1975 leaving behind his wife Smt. Ganeshi Devi and two sons Pooran Singh and petitioner (appellant) Rajendra Singh. It was further alleged in the petition that the petitioner's date of birth was 10-05-1974 who attained the age of majority on 10-05-1992. Smt. Ganeshi Devi W/o Late Khushal Singh sent a representation dated 16-03-1993 to the Forest Department stating therein that her son be appointed under the Dying-in-Harness Rules, 1974 (hereinafter referred as '1974 Rules'). It was further alleged in the petition that the petitioner's date of birth was 10-05-1974 who attained the age of majority on 10-05-1992. Smt. Ganeshi Devi W/o Late Khushal Singh sent a representation dated 16-03-1993 to the Forest Department stating therein that her son be appointed under the Dying-in-Harness Rules, 1974 (hereinafter referred as '1974 Rules'). The representation of the mother of the petitioner was dismissed on 17-05-2000, hence the petitioner filed the writ petition before the learned Single Judge. 4. The counter affidavit was filed by the respondents against the writ petition stating therein that the wife of Khushal Singh preferred an application on 16-03-1993 stating that her husband Khushal Singh tractor operator died on 18-09-1975 while he was in service and his son Rajendra Singh, petitioner-(appellant) may be appointed on compassionate ground in the department. The said application was rejected on 07-04-1993. Thereafter she again preferred her claim which was again rejected on 07-09-1993 and 14-03-1996. Inspite of the said rejections, she again preferred an application for the compassionate appointment of her son Rajendra Singh, petitioner (appellant) which was again rejected on 27-03-1996 and again on 17-05-2000. It was further pleaded that due to the promotion of Sri Ram Avtar and Kheemanand tractor cleaner to the post of Tractor Operator, two posts of tractor cleaner were vacant and as such the petitioner's elder brother Pooran Singh and on Sri Girish Chandra Pathak who were working as seasonal daily wagers were appointed as tractor cleaner. In fact, the elder brother of the petitioner was a junior in the seasonal daily wagers and because he was entitled to get the service under the dying in harness rules and as such he was appointed as tractor cleaner. Another person Girish Chandra Pathak was appointed as Tractor Cleaner and he was seniormost Seasonal DailyWager and he was entitled to get the appointment on the basis of seniority. Another person Girish Chandra Pathak was appointed as Tractor Cleaner and he was seniormost Seasonal DailyWager and he was entitled to get the appointment on the basis of seniority. It was further alleged that the father of the petitioner died on 18-09-1975 and at that time the Dying in Harness Rules was in enforcement but after a gap of more than three years the elder brother of the petitioner Sri Pooran Singh who was working as seasonal daily wager in the Forest Department applied vide letter dated 16-12-1978 stating therein that he had attained the age of majority as such he may be appointed under tile Dying in Harness Rules and consequently he was appointed as Tractor Cleaner vide Vanadesh No. 34/25-3 dated 05-03-1979. Due to clerical mistake it could riot be mentioned in appointment letter of Pooran Singh that his appointment has been made under the Dying-in-Harness Rules though his appointment was made on 16-12-1978 immediately after attaining the majority by superseding the other Daily Wagers. It was further alleged in the counter affidavit that the main intention of Dying-in-Harness Rules is only to give relief for the time being to the dependants of the deceased employee so that they were not deprived of their livelihood. It was further alleged that the presumption cannot be taken for such family that are deprived of their livelihood for ever even after a long gap. The Government has made an amendment and fixed the limitation of five years for submitting application by the dependant of the deceased employee for compassionate appointment vide its G.O. NO.6-12/1973 (Niyukti)(A). It was further contended that Rule 1974 provides that the application for the employment for the compassionate appointment must be filed within five years. It was further contended that admittedly after the death of his father the petitioner had not filed the application within a period of five years from the date of death of the deceased. It was also contended that the writ petitioner or his mother had not given any application to the Government for seeking relaxation of the above Rule. It was further contended that admittedly the application was filed after a period of five years. It was further contended that there was no need of compassionate appointment as the family of the deceased has survived for a period of 17 years without compassionate appointment. It was further contended that admittedly the application was filed after a period of five years. It was further contended that there was no need of compassionate appointment as the family of the deceased has survived for a period of 17 years without compassionate appointment. A compassionate appointment is made out of pure humanitarian consideration on account of the fact that unless some source of livelihood is provided the family would not be able to make both ends meet. The whole object of granting such appointment is to enable the family to tide over the sudden crisis. Moreover, the elder son of the deceased Pooran Singh was appointed on 16-12-1978 after attaining the majority by-passing the other Senior Daily Wagers. 5. After hearing the parties, the learned Single Judge has dismissed writ petition vide impugned order dated 15-06-2005. It was held by the learned Single Judge that on the date when Khushal Singh died, the petitioner was aged only one year and was not eligible for appointment. Therefore, there cannot be any reservation for a vacancy till such time, as the petitioner becomes a major after a number of years. 6. Feeling aggrieved by the said order, the present special appeal has been preferred by the appellant (petitioner). 7. Heard learned counsel for the parties and perused the record. 8. It was contended on behalf of the appellant (petitioner) that the father of the petitioner died on 18-09-1975 and at that time the petitioner's age was only one year and he became major in the year 1992. The mother of the petitioner sent a representation dated 1603-1993 to the Forest Department stating therein that her son be appointed under the '1974 Rules' as he possessed the qualification of 8th class. The representation of the mother of the petitioner was dismissed on 17-05-2000. Learned counsel for the appellant further contended that the learned Single Judge has erred in holding that the appointment cannot be made under the '1974 Rules' after a long gap and the vacancy cannot be reserved till such time. It was further contended that the appointment of Pooran Singh was not made under Dying-in-Harness Rules. Sri N.B. Tiwari learned Additional Advocate General refuted the contention and contended that the father of the petitioner died in the year 1975 and the petitioner became major in the year 1993. It was further contended that the appointment of Pooran Singh was not made under Dying-in-Harness Rules. Sri N.B. Tiwari learned Additional Advocate General refuted the contention and contended that the father of the petitioner died in the year 1975 and the petitioner became major in the year 1993. When the petitioner attained the majority, an application was submitted in the year 1993 for compassionate appointment of the petitioner after a lapse of 17 years. 9. Before dealing with the respective contention of the parties, we would like to refer the relevant rules in this regard. Rule 5 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 provides 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) fulfills the educations 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 servent : 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.” 10. Perusal of the aforesaid Rule, it is revealed that the dependant of the deceased can make the application for compassionate appointment within five years from the date of the death of the Government servant. Admittedly, the mother of the petitioner •sent the representation in the year 1993 after a lapse of 16 years. Perusal of the aforesaid Rule, it is revealed that the dependant of the deceased can make the application for compassionate appointment within five years from the date of the death of the Government servant. Admittedly, the mother of the petitioner •sent the representation in the year 1993 after a lapse of 16 years. It is true that the wife of the deceased has been prosecuting her claim since 1993. But, at the same time, this fact cannot be denied that the family of the deceased had survived for a period of 23 years as on today. It is pertinent to mention here that the appointment in public services on compassionate ground has been carved out as an exception, in the interest of justice, to the general rule that appointments in the public services should be made strictly on the basis of open invitation of applications and merit and no other mode of appointment nor any other consideration is permissible. A compassionate appointment is made out of pure humanitarian consideration on account of the fact that unless some source of livelihood is provided the family would not be able to make both ends meet. The whole object of granting such appointment is to enable the family to tide over the sudden crisis. It is also well settled position of law that an appointment on compassionate ground has to be given in accordance with the relevant rules and guidelines that have been framed by the authority concerned and no person can claim appointment on compassionate grounds in disregard of such rules or guidelines. Learned counsel for the appellant (petitioner) did not dispute that his brother Pooran Singh was appointed in the department in the year 1978 after the death of the deceased. It was also not disputed by the learned counsel that Pooran Singh was appointment after the death of his father after attaining the age of majority and ignoring the seniority of the other senior Daily Wagers. The appointment of Pooran Singh had provided them the livelihood even if the family was in distress. It is not the purpose of the 1974 Rules that each and every member is entitled to get the compassionate appointment. 11. The Apex Court, in the case of Umesh Kumar Nagpal Vs. State of Haryana 1994 (4) see p/138, held in para 2 :- "2. ............ It is not the purpose of the 1974 Rules that each and every member is entitled to get the compassionate appointment. 11. The Apex Court, in the case of Umesh Kumar Nagpal Vs. State of Haryana 1994 (4) see p/138, held in para 2 :- "2. ............ 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 Class III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, 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 lower 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." 12. In State of J&K & others Vs. Sajad Ahmed Mir 2006(5) SCC 766, the father of the writ petitioner was working as a Lineman in the Power Development Department, Civil Secretariat, Srinagar. He died on 06-03-1987 while he was in services. An application was preferred by the writ petitioner on 20-09-1991 for getting appointment on compassionate ground against the vacant post which resulted due to the death of his father. His application though was recommended but rejected by the administrative department on 08-06-1991 and conveyed the decision to the applicant and he preferred a writ petition before the court in the year 1999. The said writ petition was dismissed on the ground of the latches. His application though was recommended but rejected by the administrative department on 08-06-1991 and conveyed the decision to the applicant and he preferred a writ petition before the court in the year 1999. The said writ petition was dismissed on the ground of the latches. Thereafter, the writ petitioner preferred a Letters' Patent Appeal before the Division Bench of the High Court and the Division Bench directed the department to provide the appointment. As such, the appeal was allowed. An appeal was preferred before the Hon'ble Apex Court. The Hon'ble Apex Court while allowing the appeal held that the writ petition was preferred in the year 1999 and thereafter, the Division Bench decided the matter and a period of 15 years had passed from the date of the death of the father of the petitioner. The said fact was indeed a relevant and material fact which shows that the family survived inspite of the death of the employee. The Hon'ble Apex Court observed as under: "11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought "compassion", the Bench ought to have considered the larger issue as well as it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interest of several others ignoring the mandate of Article 14 of the Constitution. 12. In State of Haryana V. Rani Devi (1996) 5 SCC p/308 it has been held that the claim of the applicant for appointment on compassionate ground is based on the premise that the was dependent on the deceased employee. 12. In State of Haryana V. Rani Devi (1996) 5 SCC p/308 it has been held that the claim of the applicant for appointment on compassionate ground is based on the premise that the was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative instructions which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. 13. In LIC of India V. Asha Ramchhandra Ambekar, (1994) 2 SCC p/718 it was indicated that the High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. 14. In Umesh Kumar Nagpal Vs. State of Haryana (1994) 4 SCC p/138 it was ruled that public services appointment should be made strictly on the basis of open invitation of applications and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crises. Such appointments on compassionate ground, therefore, have to be made in accordance with rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. This favourable treatment to the dependant of the deceased employee must have clear nexus with the object sought to be achieved thereby i.e. relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased, there are millions and millions of other families which are equally, if not more, destitute. This favourable treatment to the dependant of the deceased employee must have clear nexus with the object sought to be achieved thereby i.e. relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased, there are millions and millions of other families which are equally, if not more, destitute. 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 expectation, and the change in the status and affairs of the family engendered by the erstwhile employment, which are suddenly upturned. 15. In Sushma Gosain Vs. Union of India (1989) 4 SCC p/468 it was observed that in the claims of appointment on compassionate grounds, there should be no delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the breadwinner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. 16. Recently, in Commr. Of Public Instructions Vs. K.R. Vishwanath, (2005) 7 SCC p/206, one of us (pasayat, J.) had an occasion to consider the above decisions and the principles laid down therein have been reiterated. " 13. Apart this, the petitioner has not averred in the writ petition that his mother has not received the money towards the terminal benefits accrued to the dependants after the death of the deceased. It is admitted to the learned counsel for the appellant that the wife of the deceased never applied for the compassionate appointment. The other son of the deceased Pooran Singh has been appointed in the year 1978 after the death of his father. Consequently, the petitioner cannot automatically become entitled to get employment on compassionate ground. The right that accrues on the petitioner is a right to get preferential treatment against the general principle of appointment subject to the discretion of the department. The possession of the relevant qualification does not create any vested right on the applicant to get appointment to a post specified by the scheme. Another son Pooran Singh has got an appointment in the year 1978 after the death of his father in the department. The possession of the relevant qualification does not create any vested right on the applicant to get appointment to a post specified by the scheme. Another son Pooran Singh has got an appointment in the year 1978 after the death of his father in the department. The claim of a person to be appointed under 1974 Rules on compassionate ground is based on premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 and 16 of the Constitution. However, such claim can only be considered in accordance with the guidelines of 1974 Rules to tide over the sudden crisis due to the death of the deceased. If the family of the deceased employee has been able to tide over the crisis by any means and the family survives and the other dependent member of such family gets job in the same department or the other department, the other dependants cannot claim the appointment under the 1974 Rules after a lapse of long gap. Such compassionate appointment under 1974 Rules are provided only on the compelling circumstances, such as death of the sole bread-earner and livelihood of the family suffering because of the set back. Once it is established that despite the death of the bread-earner, the family had survived for a long period and substantial period is over, the dependant of the deceased cannot claim the appointment as a right. We cannot forget that as against the destitute family of the deceased, there are millions other families which are equally destitute. Thus the compassionate appointment cannot be a source of recruitment. In the case in hand as pointed out earlier Pooran Singh the son of the deceased who was a Daily Wager in the department was given regular appointment after the death of his father after attaining his majority. Such appointment, though it mayor may not be compassionate appointment had enabled the family to get over the sudden financial crisis. The employee died in the year 1975 and the appellant (petitioner) attained the majority in the year 1992 and the mother applied for his appointment in the year 1993. Thus a period of 22 years has lapsed. Now after a lapse of 22 years, he cannot seek appointment under 1974 Rules. The employee died in the year 1975 and the appellant (petitioner) attained the majority in the year 1992 and the mother applied for his appointment in the year 1993. Thus a period of 22 years has lapsed. Now after a lapse of 22 years, he cannot seek appointment under 1974 Rules. Rule 5 (supra) of 1974 clearly provides that the application for compassionate appointment must be made within five years from the date of the death of the employee. It was not brought to our notice that any relaxation had been sought in this regard from the State Government. Admittedly, the representation of the petitioner was made after a lapse of 17 years and the compassionate appointment is only intended to enable the family of the deceased employee to tide over the sudden crises resulting due to death of the bread-earner who has left the family in penury and without any means of livelihood. In the case of Sanjay Kumar Vs. State of Bihar & others reported in 2000 (7) SCC p/192, the petitioner was 10 years old when his mother died, while she was working as an Excise Constable. The petitioner made an application on 2-6-1988, soon after the death of his mother, seeking compassionate appointment, but the same was rejected on 10-12-1996 as time-barred. When the matter came up before the Hon'ble Apex Court it has been held as follows :- "2. Learned Senior Counsel appearing on behalf of the petitioner has placed strong reliance on the decision of a learned Single Judge of the Patna High Court in Chandra Bhushan v. State of Bihar 1997 (1) Pat. LJR 626 (Pat). Learned Senior Counsel points out that it was held in that case that an applicants right cannot be defeated on the ground of delay caused by authorities which was beyond the control of the applicant. Learned Senior Counsel further points out that instead of following the above judgment, the same learned Judge has now held on 21-4-1997 that the application is time-barred. Learned counsel has placed before us a judgment of this Court in Director of Education (Secondary) v. Pushpendra Kumar 1998(5) SCC 192. He submits that, in this case, a direction was given to create supernumerary post. 3. We are unable to agree with the submission of the learned Senior Counsel for the petitioner. Learned counsel has placed before us a judgment of this Court in Director of Education (Secondary) v. Pushpendra Kumar 1998(5) SCC 192. He submits that, in this case, a direction was given to create supernumerary post. 3. We are unable to agree with the submission of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 2-6-1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief. 4. We are, therefore, unable to agree with the view expressed in Chandra Bhushan (supra)." 14. In view of the above, we are of the view that the learned Single Judge was justified in holding that the petitioner is not entitled for compassionate appointment. Therefore, the special appeal is devoid of merit and is liable to be dismissed. 15. Accordingly, the special appeal is dismissed. No order as to costs.