JUDGMENT Hon’ble Rajiv Sharma, J.—Heard learned counsel for the petitioner and learned Standing Counsel. 2. The present writ petition has been filed by the wife of Tufail Ahmad for a direction to the competent authority to consider her case for compassionate appointement against a post of Category IV and for quashing the communique/order dated 23.2.2001, passed by the Secretary, Basic Shiksha Parishad. 3. Factual matrix of the case are that deceased Tufail Ahmad had solemnised marriage with Smt. Qamar Jahan and out of the said wedlock, three children were born, i.e. two sons and a daughter. Smt. Qamar Jahan wife of Tufail Ahmad died on 14.3.1973. Thereafter, late Tufail Ahmad married the present petitioner and was blessed with ten children. Mohammad Azmal (respondent No. 4) and his brother, who are the sons of Tufail Ahmad from the first wife, started living separately and respondent No. 4 started doing the business of fruits. The daughter born out of the wedlock from the first wife was got married by the deceased in his life time. Tufail Ahmad husband of the petitioner expired on 13.11.1999 leaving behind the petitioner and ten children. A succession certificate was also obtained by the petitioner from the District Magistrate. 4. Counsel for the petitioner pointed out that since the name of the petitioner was recorded as wife of Tufail Ahmad in service record, admissible dues were paid to the petitioner and now family pension is also being paid to her. After the death of the husband, the petitioner moved an application for granting appointment in relaxation to normal rules on compassionate grounds for her son Zunaid Ahmad. However, since he wanted to study further, the petitioner then applied for her own appointment on 31.3.2000. In the meantime, the respondent No. 4, who was born from the first wife without impleading the petitioner, filed a writ peition No. 28995 of 2000 before this Court seeking a direction to consider his case for compassionate appointment. Consequent to the order of this Court, the Zila Basic Shiksha Adhikari, Allahabad issued a letter dated 29.9.2000 to the respondent No. 4 to appear before him. Consequent to the order of this Court, the Zila Basic Shiksha Adhikari, Allahabad issued a letter dated 29.9.2000 to the respondent No. 4 to appear before him. When the present petitioner came to know about the said letter, she also gave an application staking her claim in preference to that of respondent No. 4 as her financial condition was more precarious because she has to take care and support ten children and it has become very difficult for her to maintain all the members of the family in a meagre amount of pension and as such she is in dire need of a job. On 16.10.2000, the petitioner as also the respondent No. 4 appeared before Zila Basic Shiksha Adhikari, who after hearing the respective claims, was satisfied that the claim of the petitioner is bona fide and asked her to give application in writing, which was given by the petitioner on 18.10.2000. 5. Later on, Secretary, U.P. Basic Shiksha Parishad, Allahabad vide letter dated 23.3.2001 directed for giving appintment to respondent No. 4 mentioning therein that in para 9 of the Government Order, the dependent son of deceased has got first preference. The said order of the Secretary, U.P. Basic Shiksha Parishad has been assailed in the present writ petition inter alia on the grounds that the Secretary wrongly interpreted that the son is at the top of the list of preference vide order dated 23.3.2001. The Secretary did not consider the vital fact that it is the petitioner who is looking after the children of late Tufail Ahmad. The petitioner has no other source of livelihood except the meagre pension which she is getting. Her husband was the only bread earner of the family. 6. Counsel for the petitioner further submitted that the impugned order is arbitrary and unjust as the same has been passed without considering the attending circumstances and the important fact that the deceased Tufail Ahmad left behind a widowed wife (petitioner) and ten children. The reasoning that the son is at the top of the list as given in the Government Order dated 4th September, 2000, reference of which has been given in the impugned order, is incorrect. In fact, the wife or husband is to be given top priority/preference in such compassionate appointment. 7. Mohd. The reasoning that the son is at the top of the list as given in the Government Order dated 4th September, 2000, reference of which has been given in the impugned order, is incorrect. In fact, the wife or husband is to be given top priority/preference in such compassionate appointment. 7. Mohd. Ajmal, son of Tufail Ahmad, who has been arrayed as respondent No. 4 in the present writ petition and in whose favour the impugned order dated 23.3.2001 has been issued, filed a counter affidavit denying the allegations made in the writ petition. 8. In the counter affidavit, it has been mentioned that he is the only person entitled to get job after the death of his father. It is incorrect to say that he is engaged in the business of fruits and is well of. As a matter of fact, he is doing labour work in order to sustain him and is in dire need of job. There is no infirmity in the impugned order which has been passed after considering the fact that the claim of the respondent No. 4 is genuine for compassionate appointment. It has further been indicated that the petitioner is not even Class 5th passed, whereas under the Government Order, it is provided that one should have educational qualification upto Class 5th and, therefore, the petitioner cannot be considered for appointment. Furthermore, the financial condition of the petitioner is much better than the answering respondent No. 4 as he is at the verge of starvation and is unable to provide food to the family. He also pointed out that it is incorrect to say that he is having two wives, as alleged by the petitioner. 9. Refuting the allegations of answering respondent No. 4, counsel for the petitioner submitted that after the death of Tufail Ahmad, the petitioner being his legally wedded wife has stronger claim than answering respondent No. 4. Further, for compassionate appointment, the educational qualification, do not have meaning at all. The educational qualification and age bar are usually relaxed in such cases otherwise the very purpose of appointment on compassionate ground would be frustrated. 10. Further, for compassionate appointment, the educational qualification, do not have meaning at all. The educational qualification and age bar are usually relaxed in such cases otherwise the very purpose of appointment on compassionate ground would be frustrated. 10. At the outset, it would be relevant to point out that on 13.4.2001, this Court directed all the respondents to file counter affidavit and passed a detailed order staying the operation and implementation of the order dated 23.3.2001 issued by the Secretary, U.P. Basic Shiksha Parishad. 11. In order to appreciate the rival submissions, it is relevant to peruse the relevant rules. 12. The Uttar Pradesh Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974 has been framed in exercise of the powers conferred by Article 309 of the Constitution of India. The Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (in short referred to as “Dying in Harness Rules, 1974”) are special set of rules, which have been made for providing a source of livelihood, and to give some respite to the members of the deceased Government servant’s family at a time when the family is suddenly struck with a calamity where the sole bread earner dies. The overall idea and concept of these rules is to keep the family in main streamline of the society for which economic security and social status is to be provided by the State Government. 13. Initially, these Rules were applicable to the Government Servant, deceased Government Servant and the family. Rule 2(C) where the word ‘family’ has been defined reads as under : “family” shall include the follwing relations of the deceased Government Servant : (i) wife or husband; (ii) sons; (iii) unmarried and widowed daughters. 14. Rule 3 of the said rules makes these rules applicable to the recruitment of dependants of the deceased government servants to public services and posts in connection with the affairs of the State of Uttar Pradesh, except services and post which are within the purview of the Uttar Pradesh Public Service Commission. 15. Rule 4 gives an overriding effect to those rules by providing that they shall have the effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of those rules. 16. 15. Rule 4 gives an overriding effect to those rules by providing that they shall have the effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of those rules. 16. Rule 5 of the Dying in Harness Rules, 1974 deals with the recruitment of the member of the family of the deceased on a suitable post. 17. Rule 6 provides that an application for appointment under these Rules shall be addressed to the appointing authority in respect of the post for which appointment is sought. 18. Rule 7 which is relevant for the purposes of adjudicating the present controversy reads as under : “7. Procedure when more than one member of the family seeks employment.—If more than one member of the family of the deceased Government servant seeks employment under these rules, the Head Officer shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interest of the welfare of the entire family particularly the widow and the minor members thereof.” 19. It is pertinent to mention that Dying in Harness Rules, 1974 were amended from time to time and by Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness (Sixth Amendment) Rules, 2001, the relations included in the family of the deceased government servant have been described, which reads as under : 1. Wife or Husband 2. Son 3. Unmarried daughters and widowed daughters. 4. Dependant unmarried brother, unmarried sister and widowed mother of the deceased government servant, if the was unmarried. 20. On 28th June, 2006, the State Government brought Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness (Seventh Amendment) Rules, 2006, whereby in Rule 5 it has been inserted in clause (3) and (4) as under : "(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 service may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time." 21. Here, it would be relevant to point out that the State Government issued a Government Order No. 5193/15.5.2000-400(222)/99, dated 4th September, 2000 with regard to the appointment of dependants of teachers/employees in the establishment of Basic Shiksha Parishad. The said Government Order lays down the conditions and the procedure to be followed for such appintment. Para 9 of the said Government Order says that the dependants of teachers/employees of U.P. Basic Shiksha Parishad means the son of the employee, unmarried or widowed daughter, wife or husband of the deceased. 22. In the said Government Order either in Para 9 or any other Paragraphs there is no mention of any preference to be given to the dependants of the deceased. Para 9 of the Government Order dated 4th September, 2000 on which reliance has been placed by respondent No. 1, while issuing directions vide order dated 23.3.2001. It only provides the meaning of the words dependants of teachers/employees. Mere mentioning the son of the employee first, will not lead to an inference that it is the seriatum which is to be followed while considering the appointment on compassionate ground. The inference drawn by the Secretary, U.P. Basic Shiksha Parishad that as the deceased’s son is mentioned first, as such, the respondent No. 4 is entitled to be given appointment, is wholly erroneous and unjustified. The impugned order is also against Rule 7 of the 1974 Rules as while considering the appointment where more than one member of the family claims employment, the appointing authority is under an obligation to decide the same keeping in view of the overall interest of the welfare of the entire family particularly the widow and the minor members thereof. Moreover, the law is well settled that the executive instructions cannot override the Rules and as such the concerned authority should have given due regard to the relevant Rules, 1974 while passing the impugned order. 23. Undisputedly, the petitioner is a widow who has to sustain ten children, out of which most of them are minors. Moreover, the law is well settled that the executive instructions cannot override the Rules and as such the concerned authority should have given due regard to the relevant Rules, 1974 while passing the impugned order. 23. Undisputedly, the petitioner is a widow who has to sustain ten children, out of which most of them are minors. Therefore, had the concerned authority applied its mind correctly to the materials on record and given consideration to the provisions of Rule 7 of 1974 Rules, it is the petitioner whose claim is much stronger in comparison to respondent No. 4 and she should have been given suitable appointment on Class IV post. The impugned order dated 23.3.2001 has been passed without considering the relevant Rules and wrongly giving too much weightage to the provisions of Paragraph 9 of the Government Order dated 4.9.2000. It is also relevant to point out that in the said impugned order dated 23.3.2001, there is no mention that the comparative hardship was considered and the claim of respondent No. 4 was found genuine. It is to be kept in mind that while considering as to who is to be given employment, the paramount factor which shall be taken into consideration is the overall interest of the welfare of the entire family. 24. In the instant case, income out of meagre pension was not sufficient to maintain, and, therefore, to tide over the financial crisis on the sudden death of the employee refusing appointment on compassionate ground to the petitioner is wholly unjustified. I am of the view that the financial position of the family of the deceased employee requires such compassionate appointment on the facts of the case. It may be added that the receipt of family pension by the widow cannot be taken to be a good ground for rejecting the case for appointment on compassionate ground. It may be mentioned that this Court in the case of Committee of Management, R.B. Rao Intermediate College, Deoria and others v. Joint Director of Education, Gorakhpur and others, (2001) 1 UPLBEC 706 took a view that a widow cannot be denied appointment on compassionate ground just because of its illiteracy. 25. Looking to the pathetic condition of the family and financial stress and strain that it has undergone all these years, the order dated 23.3.2001 was not justified and reflects non-application of mind. 25. Looking to the pathetic condition of the family and financial stress and strain that it has undergone all these years, the order dated 23.3.2001 was not justified and reflects non-application of mind. The respondents have not at all taken into account the tremendous difficulties that the petitioner and his family faced upon the death of their head of family way back in the year 1999. 26. For the reasons aforesaid, the order dated 23.3.2001, passed by the Secretary, U.P. Basic Shiksha Parishad is hereby quashed. The concerned authorities (respondent Nos. 1 to 3) are directed to consider the claim of the petitioner for compassionate appointment after considering the provisions of Rules of Dying in Harness Rules, 1974, in the light of the observations made hereinabove. The authorities shall pass the appropriate orders within a maximum period of six weeks’ considering the fact that the poor widowed lady is litigating this matter since last seven years to get justice. 27. For the foregoing reasons, writ petition is allowed. ————