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2008 DIGILAW 2232 (ALL)

SHIV KUMAR v. STATE OF UTTAR PRADESH

2008-11-07

DILIP GUPTA

body2008
JUDGMENT Honble Dilip Gupta, J.—The petitioner seeks the quashing of the order dated 15th May, 2008 by which his claim for compassionate appointment under the provisions of the U.P. Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as the Rules) has been rejected by the Executive Officer of the Nagar Palika Parishad, Bulandshahr on the ground that the son of the deceased was working in the Nagar Palika Parishad, Bulandshahr. 2. Learned Standing Counsel appearing for the respondents had stated that the petition may be decided without calling for any counter affidavit as only the relevant Clause of the Rules in question have to be interpreted. It is, in such circumstances, that the petition is being finally decided without calling for any counter affidavit. 3. The records indicate that the mother of the petitioner late Smt. Chandravati, who was working as a Sweeper in the Nagar Palika Parishad Bulandshahr, died-in-harness on 8th April, 2008 and immediately thereafter the petitioner moved an application on 11th April, 2008 for granting compassionate appointment under the provisions of the Rules. In the affidavit filed in support of the application, the petitioner stated that he was unemployed and had no source of income to maintain his family and infact has to look-after his wife and two minor sons and that his brother who was employed in the Nagar Palika Parishad was living separately and had no concern with the family. The impugned order recites that as the brother of the petitioner is working in the Nagar Palika Parishad, the petitioner is not entitled for compassionate appointment in view of the provisions of Rule 5(1) of the Rules. 4. Learned counsel for the petitioner submitted that the rejection of the claim of the petitioner for compassionate appointment merely on the ground that his brother is employed in the Nagar Palika Parishad is not in consonance with the provisions of Rule 5(1) of the Rules and, therefore, deserves to be set aside. 5. Rule 5(1) of the Rules without the proviso’s, on which reliance has been placed in the impugned order, is quoted below : "5. 5. Rule 5(1) of the Rules without the proviso’s, on which reliance has been placed in the impugned order, is quoted below : "5. Recruitment of a member of the family of the deceased.—(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, 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 :" 6. A perusal of the aforesaid Rule clearly shows that one member of the family who is not already employed shall, on making an application, be granted a suitable employment in Government service on a post except the post which is within the purview of the U.P. Public Service Commission provided the spouse of the deceased Government servant is not already employed. 7. In the present case, it is not the case of the respondents that the spouse of the deceased was employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government. In such circumstances, one member of the family of the deceased 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 is required to be given a suitable employment in Government service on a post except the post which is within the purview of the U.P. Public Service Commission on the fulfilment of the conditions stipulated in Rule 5(1) of the Rules. 8. 8. The respondents have rejected the claim of the petitioner only on the ground that his brother was employed in the Nagar Palika Parishad since according to them Rule 5(1) of the Rules does not permit grant of compassionate appointment in such a case. There is no such prohibition mentioned in the Rules. The only prohibition mentioned is that the spouse and the person submitting the application should not be employed. The stand taken in the impugned order is, therefore, contrary to the provisions of Rule 5(1) of the Rules. The impugned order cannot be sustained. It is, accordingly, set aside. 9. The respondents shall now consider the case of the petitioner for grant of compassionate appointment strictly in accordance with the provisions of Rule 5(1) of the Rules expeditiously, preferably within a period of four weeks from the date a certified copy of this order is filed by the petitioner before the Executive Officer of the Nagar Palika Parishad, Bulandshahr. 10. The writ petition succeeds and is allowed to the extent indicated above. ————