JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the petitioners and perused the record. 2. This special appeal has been filed for quashing of the order and judgment dated 11.6.2007 passed by the learned Single Judge in Civil Misc. Writ Petition No. 29665 of 2007, Mukesh Kumar v. State of U.P. and others, whereby the aforesaid writ petition had been dismissed. 3. It appears from the record filed alongwith this special appeal that Charan Singh died during the course of his employment on 28.12.1986. His widow had applied for appointment under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as ‘ 1974 Rules’) vide her application dated 12.2.88 appended as Annexure-3 to the writ petition. From perusal of Annexure-4, letter dated 29.2.1988 issued by respondent No. 3, Executive Engineer (Public Works Department) Temporary Division, Mathura it appears that she was advised not to come to the office again and again and should contact the authority in the department for compassionate appointment under 1974 Rules after her son attains majority and thereafter the process for taking him in service would be initiated. 4. In the aforesaid circumstances, appellant Mukesh Kumar after attaining the majority moved the concerned department vide Annexure-5 to the writ petition and prayed for compassionate appointment. It appears that his application for compassionate appointment was rejected by the authority on the ground of delay. In the circumstances, the appellant was compelled to prefer Civil Misc. Writ Petition No. 2962 of 2005, Mukesh Kumar v. State of U.P. and others, which was disposed of vide judgment and order dated 24.1.2005. It reads thus : “Heard learned counsel for the petitioner and learned Standing counsel. It is contended that petitioner’s father late Sri Charan Singh was serving as regular Beldar and died in harness on 18.12.1986. The petitioner’s mother had made an application requesting for compassionate appointment on which she was told that when her son attains the age of majority the department may consider him for compassionate appointment. The petitioner attained the age of majority in the year 2001 and soon-after he approached the respondents repeatedly but without any response. The petitioner’s application for compassionate appointment is required to be considered under the proviso to Rule 5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. The petitioner attained the age of majority in the year 2001 and soon-after he approached the respondents repeatedly but without any response. The petitioner’s application for compassionate appointment is required to be considered under the proviso to Rule 5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. It has been stated that the family is still suffering from extreme poverty. From the facts and circumstances of the case, I find that the petitioner’s application is required to be considered under the Rules by the State Government. Let the application and all relevant documents available in the office of respondent No. 2 be sent by him to the respondent No. 1 within one month. The respondent No. 1 will thereafter consider the question of delay and the claim for compassionate appointment. The decision in this regard shall be taken within two months from the date of the communication of this order. The writ petition is accordingly disposed of.” 5. Pursuant to the aforesaid order the appellant moved respondent No. 3 alongwith an application dated 15.2.2005 and certified copy of the order passed by the Court quoted above. This application was rejected vide order dated 8.11.2005 passed by respondent No. 3 on the ground that application for compassionate appointment had been made by the appellant under the 1974 Rules after more than 5 years of the death of the Government employee. Aggrieved, the petitioner moved another Civil Misc. Writ Petition No. 3232 of 2006, Mukesh Kumar v. State of U.P. and others, which was allowed vide judgment and order dated 20.1.2006. It reads thus : “Heard Sri Ram Sagar Yadav, Advocate on behalf of petitioner and learned Standing counsel on behalf of respondents. The claim of the petitioner for compassionate appointment has been rejected by the Secretary (respondent No. 1) by means of the order dated 8 November, 2005 only on the ground that the application for such compassionate appointment has been made after more than five years of the death of the Government employee. The claim of the petitioner for compassionate appointment has been rejected by the Secretary (respondent No. 1) by means of the order dated 8 November, 2005 only on the ground that the application for such compassionate appointment has been made after more than five years of the death of the Government employee. On behalf of the petitioner it is contended that there has been non-application of mind to the proviso to Rule 5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, which confers a power upon the State Government for relaxing the earlier time fixed for making an application for appointment on compassionate ground where the State Government is satisfied undue hardship still persists in any particular case, and it is just and equitable. It is further contended that on the date of death of his father the petitioner was minor, therefore, he could not move any application for such compassionate appointment earlier. Faced with the aforesaid contention the learned Standing counsel has fairly conceded that the State Government shall reconsider the application of the petitioner for such compassionate appointment with reference to proviso to Rule 5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 by means of a reasoned and speaking order. In view of the aforesaid, the order impugned in the present writ petition dated 08 November, 2005 which does not take into consideration the proviso to Rule 5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 is hereby quashed and the State Government is directed to reconsider the application of the petitioner for such compassionate appointment in the light of proviso to Rule 5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 by means of a reasoned speaking order preferably within six weeks from the date a certified copy of this order is filed before the authority concerned. The writ petition is allowed.” 6. Thereafter, the petitioner moved an application dated 6.2.2006 before the respondents alongwith copy of the aforesaid order dated 20.1.2006. On this application, the Superintending Engineer, Public Works Department, Aligarh by means of letter No. 85/46/H-106 dated 25.2.2006 directed respondent No. 3 to comply with the order dated 20.1.2006 passed by the Court. The writ petition is allowed.” 6. Thereafter, the petitioner moved an application dated 6.2.2006 before the respondents alongwith copy of the aforesaid order dated 20.1.2006. On this application, the Superintending Engineer, Public Works Department, Aligarh by means of letter No. 85/46/H-106 dated 25.2.2006 directed respondent No. 3 to comply with the order dated 20.1.2006 passed by the Court. It is in these circumstances that respondent No. 3 complied with the order and issued appointment letter dated 17.3.2007 with regard to the appointment of the petitioner on the post of ‘Beldar’. Pursuant to this appointment letter, the petitioner joined his duty on 21.3.2007 and his joining report was accepted by the authority. He was then deputed by respondent No. 3 to work vide order dated 22.3.2007. Pursuant to this appointment letter, the petitioner joined his duty on 21.3.2007 and his joining report was accepted by the authority. He was then deputed by respondent No. 3 to work vide order dated 22.3.2007. Copies of the joining report dated 21.3.2007 and the order dated 22.3.2007 directing him to work on the post in question appended as Annexures-8 and 9 in the writ petition have been filed alongwith this special appeal, which read thus : ^^lsok esa] vf/k’kklh vfHk;Urk] fuekZ.k [k.M ua0 1] yks0 fu0fo0 eFkqjkA fo"k;%& ;ksxnku vk[;k ds laca/k A egksn;] vkids dk;kZy; vkns’k la0&546@bZ&7] fnukad 17-3-07 ds vuqikyu esa] eSa viuh ;ksxnku vk[;k vkt fnukad 21-3-2007 ds iwokZUg esa izLrqr dj jgk gwWaA okafNr izek.k i= layXu gSA layXu%& 1- eq0fo0v0 dk LokLF; izek.k&i=A 2- tUefrfFk gsrq ¼ewy esa½ ¼Vh0lh0½ dh Nk;kizfrA 3- pfj= izek.k i= 2 ¼ewy :i esa½ fnukad% 21-3-2007 eqds’k dqekj iq= Lo0 pju flag csynkj ubZ cLrh] tyslj jksM] lknkckn ¼gkFkjl½ i=kad%&546 @ bZ- 7 fnukad % 17-3-2007 izfrfyfi fuEu dks lwpukFkZ ,oa vko’;d dk;Zokgh gsrq izsf"kr%& 1- v/kh{k.k vfHk;Urk] vyhx<+ o`r] yks0 fu0fo0] vyhx<+ dksA 2- ofj"B dks"kkf/kdkjh] eFkaqjk dksA 3- vf/k"Bku fyfid&f}rh;] fuekZ.k [k.M&1] eFkqjk dksA 4- O;fDrxr i=koyh gsrqA 5- Jh /kou flag] dksVZ fyfid dks ekuuh; mPp U;k;ky;] m0iz0 bykgkckn esa izLrqr djus gsrqA 6- Jh eqds’k dqekj iq= Lo0 pju flag] cysnkj ubZ cLrh tyslj jksM] lknkckn dks bl vk’k; ds lkFk izsf"kr fd iwoZ eq[; fpfdRlkf/kdkjh dk LokLFkrk izek.k&i=] nks l{ke vf/kdkjh ds pfj= izek.k&i= ,oa vk;q laca/kh izek.k i= ds lkFk viuh ;ksxnku vk[;k izLrqr djsa tks ekU; gksxhA** ^^dk;kZy; vf/k’kklh vfHk;Urk fuekZ.k [k.M ua0&4] yks0fu0 foHkkx] eFkqjkA i=kad% @ fnukad%& dk;kZy; vkns’k fuEufyf[kr csynkjksa dks muds lEeq[k ekxZ ij dk;Z djus gsrq dk;Zfgr esa vknsf’kr fd;k tkrk gSA ;g vkns’k rRdky izHkko ls izHkkjh gksaxsA g0 viBuh; vf/k’kklh vfHk;Urk fuekZ.k [k.M&2] yks0 fu0 fo0 eFkqjkA i=kad% 625 @ bZ&7 fnukad% 22-3-07 izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vuqikyukFkZ izsf"kr%& 01- lgk;d vfHk;Urk ¼r`rh;½ fuekZ.k [k.M&1] yks0 fu0fo0 eFkqjkA 02- Jh jkds’k o Jh eqds’k] csynkjksa dksA g0 viBuh; vf/k’kklh vfHk;Urk fuekZ.k [k.M&2] yks0 fu0 fo0 eFkqjkA** Subsequently, another order dated 16.4.2007 was served upon the petitioner by respondent No. 3 staying the effect and operation of the order dated 17.3.2007 on the pretext that code of conduct was in force by the Election Commission at the relevant time. The order dated 16.4.2007 reads thus : “dk;Zky; vf/k’kklh vfHk;Urk fueZk.k [k.M ua0&1 yks0 fu0 foHkkx] eFkqjkA i=kad%& @ fnukad %& dk;Zky; vkns’k dk;Zky; vkns’k la0& 546@bZ&7 fnukad 17&3&2007 'kklu dh vuqefr dh izR;k’kk esa ,oa vkpkj lafgrk vof/k lhek ds izHkkfor gksus ds dkj.k ,rn~}kjk LFkfxr fd;k tkrk gSA g0 viBuh; vf/k’kklh vfHk;Urk fueZk.k [k.M&1] yks0fu0fo0 eFkqjkA“ 7. It is submitted by the counsel for the petitioner that respondent No. 3 was fully aware of the facts that the appellant’s appointment and his joining on the post of ‘Beldar’ was not in compliance of any Government Order but it was in compliance of the order dated 20.1.2006 passed by this Court and as such the order dated 16.4.2007 is misconceived being beyond the purview of the jurisdiction of the Election Commission. It appears to have been passed by the Executive Engineer just to harass the appellant on irrelevant consideration. Even if the Code of conduct may be taken to be effective still the order passed by this Court is free from any rigorous imposed by the Election Commission on code of conduct as its orders cannot override judicial orders or action taken pursuant to such judicial orders. Respondent No. 3 is said to have passed the aforesaid illegal order effecting the code of conduct due to Vidhan Sabha Election which is highly arbitrary and unjustified, hence cannot be sustained in the eye of law. Hence, the impugned order dated 16.4.2007 passed by respondent No. 3 is not only bad in law but it is contemptuous to the very order passed by this Court on 20.1.2006 which deserves to be deprecated by this Court. 8. It is next submitted by him that due to impugned order the appellant is being illegally deprived of work and his lawful salary to which he is entitled to for the reason that even if it is assumed that code of conduct was in force during election period. The petitioner having been appointed and working ought to have been allowed to work after the code of conduct during election period ceased to have effect and the respondents could not have illegally restrained him from work depriving him of her livelihood. 9. The petitioner having been appointed and working ought to have been allowed to work after the code of conduct during election period ceased to have effect and the respondents could not have illegally restrained him from work depriving him of her livelihood. 9. From the aforesaid admitted facts and circumstances of the case it is apparent that there was no delay in moving the authorities for compassionate appointment by the widow of late Sri Charan Singh as she had moved her application for compassionate appointment on 12.2.1988 within a period of five years in accordance with 1974 Rules. It also appears from perusal of letter dated 29.2.1988 that she had been directed to approach the office after her son attains the majority so that he may be granted appointment on compassionate grounds. Apparently this claim of the widow was conveniently bye-passed by the authority on the pretext that compassionate appointment would be given to her son on attaining majority. The dependents of the deceased employee had been made by the State Government to run from pillar to post at least thrice in writ petitions and they have been compelled to move the Court. 10. Once the appellant has been offered appointment on compassionate ground and according to it he has joined his services, it was not open for the State Government to have issued order dated 16.4.2007 staying the effect and operation of the order dated 17.3.2007. Subsequent thereto neither any action has been taken by the Election Commission upon the State Government since 16.4.2007 for appointing the petitioner-appellant on the post of ‘Beldar’ nor the respondents allowed him to work after cessation of the code of conduct. Hence, in the facts and circumstances of the case, the order dated 16.4.2007 is arbitrary, illegal and without any valid basis. It is unsustainable and is liable to be quashed. 11. For all the reasons stated above, we set aside the impugned judgment and order dated 11.6.2007 as well as the order dated 16.4.2007 passed by respondent No. 3 impugned in the writ petition. 12. The special appeal stands allowed. As a natural consequence, the respondents are directed to permit the appellant to continue in service on the post on which he was working before 16.4.2007 henceforth and pay his salary month to month as and when it falls due. 12. The special appeal stands allowed. As a natural consequence, the respondents are directed to permit the appellant to continue in service on the post on which he was working before 16.4.2007 henceforth and pay his salary month to month as and when it falls due. The appellant shall also be entitled for 50% of his salary, for the period he deliberately and illegally kept out of service by the respondents on the basis of the order dated 16.4.2007 up to the date of his joining. The respondents will ensure the joining of the appellant within a period of one week from the date of submission of a certified copy of this order which shall be submitted by him within fifteen days from today. 13. No order as to costs. ——————