Ram Surat Ram (Maurya), J.— 1. Heard Sri Nipun Singh, for the petitioner and Standing Counsel for the respondents. 2. The writ petition has been filed for quashing the order dated 07.12.2011 passed by the Commissioner Food and Civil Supply U.P. at Lucknow (respondent-2) and order dated 08.03.2011 passed by Regional Food Controller, Meerut Region, Meerut (respondent-3) by which the application for compassionate appointment of the petitioner has been rejected. 3. Late Rajveer Singh (father of the petitioner) was posted as 'Viparan Sahayak' in the department of Food and Civil Supply U.P., who died on 30.06.2011 in harness. Late Rajveer Singh left behind him Smt Suresh alias Saraswati Devi (widow), Munesh Kumar, Lokesh Kumar and Nirdesh Kumar (sons) and Smt. Sarjeeta, Smt. Neeraj and Km. Poonam (daughters). Two elder sons and two elder daughters are married and are living separately while Smt Suresh alias Saraswati Devi (widow), Nirdesh Kumar (petitioner) and Km. Poonam (younger daughter) are living jointly in the village Meerpur Bhatiyana, tahsil Hapur, district Panch Sheel Nagar, where the deceased had five bigha agricultural land and residential house. 4. The mother of the petitioner moved an application 27.09.2010 for giving compassionate appointment to the petitioner, who has passed High School examination in the year 2004 and his date of birth was 10.01.1988, under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. On this application, Regional Food Controller called for a report from Center Incharge, Dhaulana. A Committee constituted by Center Incharge conducted an exparte inquiry and submitted it's report dated 07.03.2011, in which it has been stated that the petitioner has not moved the application for appointment, Munesh Kumar, elder brother of the petitioner was employed on the post of 'seechpal' in Irrigation department and his wife was Pradhan of the village, Lokesh Kumar, other brother of the petitioner was doing business of purchasing and selling milk in the village and also doing agriculture on 2.5 bigha land, the petitioner was doing business of general merchant in the village and they own a residential house. The financial position of the family was sound. The Committee recommended that the petitioner was not entitled for compassionate appointment. Copy of the report has not been supplied to the petitioner or his mother. The financial position of the family was sound. The Committee recommended that the petitioner was not entitled for compassionate appointment. Copy of the report has not been supplied to the petitioner or his mother. On the basis of the report dated 07.03.2011, Regional Food Controller, Meerut Region, Meerut (respondent-3) by order dated 08.03.2011 rejected the application for compassionate appointment of the petitioner. 5. The petitioner made a representation on 30.05.2011 to the Commissioner Food and Civil Supply U.P. at Lucknow (respondent-2) against the order dated 08.03.2011, in which he has stated that the elder brothers of the petitioner are living separately along with their family from the life time of the father. The petitioner and his unmarried sister are living with the mother separately and they have no support from elder brothers. The petitioner does not own any general merchant shop in the village, rather he used to work as labourer for earning his livelihood. The report of the Committee in this respect was incorrect. The Commissioner Food and Civil Supply U.P. at Lucknow (respondent-2) by order dated 07.12.2011 held that widow has first right over the agricultural land of the deceased, the widow has also received terminal benefits of her deceased husband and also was getting family pension on the death of her husband as such financial condition of the family was not bad. The deceased had taken advance from his G.P.F account for opening general merchant shop to his son. The petitioner, himself, has admitted of doing labourer work, from where also he was deriving income. Thus the petitioner has sufficient income for maintaining his family from family pension, terminal benefits and general merchant shop and labourer work. On these findings, the representation was rejected. In the writ petition, the petitioner has again stated that he did not have any general merchant shop and is unemployed. He and his unmarried sister depends upon the pension of the mother and his small agricultural income as income from doing labourer work. In the ancestral agricultural land his ¼ share will be about 1.25 bigha which is not sufficient for earning livelihood. The application for his compassionate appointment has been illegally rejected. 6. On behalf of the respondents Counter Affidavit has been filed in which the facts as mentioned in the order dated 07.12.2011 have been reiterated. 7. In the ancestral agricultural land his ¼ share will be about 1.25 bigha which is not sufficient for earning livelihood. The application for his compassionate appointment has been illegally rejected. 6. On behalf of the respondents Counter Affidavit has been filed in which the facts as mentioned in the order dated 07.12.2011 have been reiterated. 7. The counsel for the petitioner submits that Rule 5 of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 provides for giving employment to one member of the family, in case surviving spouse is not in government employment. The mother of the petitioner is not in government employment as such she moved an application for appointment of the petitioner on which his other brothers and sisters had no objection. The family of the petitioner was having five bigha ancestral land, in which share of the petitioner is 1.25 bigha which is not sufficient for earning his livelihood. The other brothers are living separately from the life time of the father. Apart from family pension, the family of the petitioner which consist of mother and unmarried sister does not have any other income. The mother has also liability of the marriage of his unmarried sister. There is no evidence that the petitioner is doing general merchant business which has been throughout denied by the petitioner. The compassionate appointment of the petitioner cannot be denied on the ground of his doing labourer work. Respondent-2 and 3 have not considered the various relevant factors and illegally rejected the application. 8. I have considered the arguments of the counsel for the parties. The compassionate appointment of the petitioner cannot be denied on the ground of his doing labourer work. Respondent-2 and 3 have not considered the various relevant factors and illegally rejected the application. 8. I have considered the arguments of the counsel for the parties. Relevant rules of U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 are quoted below: Rule-5:- Recruitment of a member of the family of the deceased - (I) 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 (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. (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.] Rule-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 shall be sent to the Head of Office where the deceased Government servant was serving prior to this 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 this 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. 9. Rule-5 provides that in case, the spouse of the deceased employee is not in government service then one member of his family who is not under the service of Government or Government Corporation be given suitable employment. Thus employment of any other member of family, except spouse, is irrelevant. The legislature was cautious of the fact that employed children of the deceased may not take responsibility of other unemployed children in the present atmosphere of the society. Rule-6 prescribes the content of the application for compassionate appointment. Under Rule-6 (d) details of financial condition of the family is required to be disclosed. The legislature was cautious of the fact that employed children of the deceased may not take responsibility of other unemployed children in the present atmosphere of the society. Rule-6 prescribes the content of the application for compassionate appointment. Under Rule-6 (d) details of financial condition of the family is required to be disclosed. As the very object of compassionate appointment is to provide employment to the one member of the family of the deceased employee which use to come to the stage of penury due to sudden death of bread earner as such financial condition of the family is a relevant consideration. This Court in the cases of State Bank of India and others Vs. Ram Piyare and others, 2001 (2) U.P.L.B.E.C. 1597; Sharda Devi (Smt.) Vs. District Magistrate/Collector, Ghaziabad and Others, 2003 (2) U.P.L.B.E.C. 1134 ; Pramod Kumar Rajak Vs. Registrar General High Court Allahabad, 2011(4) U.P.L.B.E.C. 2692 and Writ - A No. 64494 of 2009 Surem Devi vs. State of U.P. & Others, decided on 30.04.2012 and Supreme Court in Govind Prakash Verma v. LIC of India, (2005) 10 SCC 289 have held that while deciding the financial status of the family for the purposes of compassionate appointment, the terminal benefits received on the death of the employee or the pension granted to the widow are required to be ignored. Relevant portion of the judgment of Govind Prakash Verma (supra) is quoted below: "In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. We hardly find that it could be considered as gainful employment if the family owns a piece of land and one of the members of the family cultivates the field." 10. The condition of the family of the petitioner is that the two elder brothers are married and have their own family and are living separately. The burden of marriage of unmarried daughter of the deceased is still on the widow of the deceased. The pension received by the deceased will continue during the life of the widow only. Thus the terminal benefits as well as the pension received by the widow mother is not relevant consideration for deciding the application for compassionate appointment. In case, compassionate appointment is denied on account of terminal benefits and pension granted to the widow, then the object of the Rule, 1974 will be frustrated, as in most of the cases, these benefits are provided on the death of the employees. 11. So far as the agricultural property is concerned on the death of the father of the petitioner it was inherited by three brothers and the mother under Section 171 of U.P. Zamindari Abolition and Land Reforms Act, 1950. Accordingly, in the share of the petitioner, 1.25 bigha land comes. On the death of the mother, his share may increase to 1.66 bigha. From this small area of the land, the petitioner will not derive sufficient income for his life. The petitioner has through out denied of owning general merchant shop. Respondent-2 has not called for any report from any other government agency in this respect. In the absence of any evidence in this respect there is no reason to disbelieve the statement of the petitioner in this respect. The respondent has noticed that the deceased during his life time taken loan from his G.P.F. for opening shop. The respondents have illegally not taken any notice of the fact that the deceased had a very large family of 6 children and his wife. The respondent has noticed that the deceased during his life time taken loan from his G.P.F. for opening shop. The respondents have illegally not taken any notice of the fact that the deceased had a very large family of 6 children and his wife. His salary would hardly be sufficient for meeting the expenses of the marriages of four children which were also performed by the accused in his lifetime. Thus from the fact that the deceased took loan from G.P.F. no conclusion can be drawn that he had opened general merchant shop. In the absence of any positive evidence in this respect that the petitioner is running the general merchant shop, findings in this respect is illegal. In the absence of any employment, the petitioner used to earn his livelihood from agriculture and by doing labourer work which cannot be a consideration for denial of compassionate appointment. 12.The Standing Counsel relied upon judgment of Supreme Court in Director of Education (Secondary) Vs. Pushpendra Kumar, (1998) 5 SCC 192 . In this case, deceased were employees of educational institution governed under the provisions of U.P. Intermediate Education Act, 1921 and on their death, appointments in dying-in-harness were made before 02.02.1995 without their being any vacancy in the institution. The Supreme Court found that Regulations 101 to 107 of Chapter III were inserted on 02.02.1995, which authorize the District Inspector of School to create supernumerary post for compassionate appointment. Prior to 02.02.1995, there being no such power, the Inspector had no jurisdiction to make appointment in the absence of the vacant post and appointments so made were quashed. In this case, different set of the Rules were relied upon as such law laid down in this case is not applicable in the present case. 13. The Standing Counsel further relied upon the other judgment of Supreme Court in General Manager (D &PB) and others Vs. Kunti Tiwar,i and another (2004) 7 SCC 271 . This case is related to the Banking Company, where the Indian Banks Association has framed a scheme for giving ex-gratia amount on the death of an employee in stead of compassionate appointment. The policy of Indian Banks Association will not be applicable in this case. Similarly the various case law referred to in the order dated 08.03.2011 are also related to different set of service Rules and Policy and are not applicable in this case. 14. The policy of Indian Banks Association will not be applicable in this case. Similarly the various case law referred to in the order dated 08.03.2011 are also related to different set of service Rules and Policy and are not applicable in this case. 14. For aforesaid reasons the writ petition succeeds and is allowed. The order dated 07.12.2011 passed by the Commissioner Food and Civil Supply U.P. at Lucknow (respondent-2) and order dated 08.03.2011 passed by Regional Food Controller, Meerut Region, Meerut (respondent-3) are quashed. The Commissioner Food and Civil Supply U.P. at Lucknow (respondent-2) is directed to reconsider the application for the compassionate appointment of the petitioner in the light of observations made above and pass suitable order within a period of two months from the date of producing certified copy of the order before him. _____________