JUDGMENT : 1. The petitioner claims compassionate appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the “Rules of 1974”). The petitioner's father died on 26.03.1987 in a road accident while on duty. The petitioner is a posthumous child, who was in his mother's womb at the time when his father passed away. He has come up with a claim seeking compassionate appointment through an application that his mother has made under the Rules of 1974 in the year 2003. This claim of the petitioner has been rejected by the impugned order dated 11.10.2018 passed by the State Government on ground that it has been preferred with a delay of 11 years, 10 months and 03 days, reckoning the delay after giving benefit of relaxation of five years provided under the Rules of 1974. 2. Heard Sri Devesh Mishra, learned counsel for the petitioner, and Sri Sharad Chandra Upadhyay, learned State Law Officer on behalf of all the respondents. 3. Learned counsel for the petitioner has submitted that the delay is not an absolutely disabling feature in case of minors and has placed reliance upon a decision of a Division Bench of this Court in State of U.P. and others v. Antariksha Singh, 2019 (7) ADJ 685 (DB). He has referred to Paragraphs-10, 11 and 12 of the report in State of U.P. and others v. Antariksha Singh ( supra) which read as under : “10. In the instant matters, if no claim is made by the respondent-petitioner for invoking relaxation clause by satisfying requirements of second proviso, then there is no need to forward the same to the State Government to consider the case in light of first proviso to Rule 5 of the Rules of 1974. 11. At this juncture, it would also be appropriate to state that while considering the case of undue hardship several factors are required to be kept in mind including economic status of the family, the term of relaxation desired and the stage on which relaxation is claimed. 12. As already stated, learned single Bench has directed to forward the case of the respondent-petitioner to examine undue hardship without arriving at the conclusion that whether any relaxation is claimed by her or not by pleading the undue hardship.” 4. 12. As already stated, learned single Bench has directed to forward the case of the respondent-petitioner to examine undue hardship without arriving at the conclusion that whether any relaxation is claimed by her or not by pleading the undue hardship.” 4. Further reliance has been placed on another Division Bench decision of this Court in Sudhir Kumar Mishra v. State of U.P. and others, 2016 (8) ADJ 639 (DB) (LB). On the principles laid down in this case, the learned counsel for the petitioner has laid particular emphasis, inasmuch as it deals with right of a minor in the context of a belated claim. He has referred to Paragraph nos. 21 and 22 of the report in Sudhir Kumar Mishra (supra), which read thus: “21. In the instant case, the petitioner submitted that when his father died he was only 4 years old and his mother informed the department that she would make application in prescribed from only when he attained majority. The department negatived the representation in this matter taking stand that the application was not made within prescribed period. However, the petitioner's request for compassionate appointment was made soon after appellant attained majority. Under Rule 5 the time limit within which the dependant of the deceased employee is to be accommodated is fixed as five year. This period can be extended under proviso to Rule 5 where burden of proving the fact that compassionate circumstances continued to exist even till date was on the petitioner himself which he has successfully discharged in this case. There is sufficient evidence of the petitioner having aged and ailing mother, two unmarried sisters, the family having pension as the only source of livelihood, the agricultural land being barren causing nugatory income of about Rs.9000/-per year, which appeared quite insufficient to enable the family to get over the financial crisis which is being faced by the family after the death of his father. 22. On the basis of objective considerations founded on the disclosures made by the petitioner in this case for compassionate appointment and having considered the reasons for the delay, we are of the opinion that undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused to the petitioner and his family by the application of the time limit of five years. The expression 'undue hardship' has not been defined in the Rules. The expression 'undue hardship' has not been defined in the Rules. Undue hardship would necessarily postulate a consideration of relevant facts and circumstances of the case. In view the income of the family, its financial condition, the extent of dependency and marital status of its members, its liabilities, the terminal benefits received by the family; the age, together with the nugatory income from any other sources in this case, we are of the view that the family continues to suffer financial distress and hardship occasioned by the death of the bread winner. Considering the penurious condition of the family, it appears to be one of the rarest of rare cases where due to exceptional circumstances the family needs the extraordinary remedy to elate the condition of family. It would be appropriate to deal with the case of the petitioner in a just and equitable manner.” 5. It is urged that in the case of a minor a liberal approach should be adopted in construing delay and the period of limitation under the proviso to Rule 5 of the Rules of 1974, where relevant circumstances continue to exist on the date the petitioner moves for compassionate appointment. It must be remarked that in Sudhir Kumar Mishra (supra), there were facts to show that the applicant for compassionate appointment had an aged and ailing mother and two unmarried sisters, pension was the only source of livelihood and the agricultural land was non productive. It was concluded that these features showed that the family had not tided over the financial crisis that they had thrown into on account of sudden loss of the bread winner. 6. Sri Sharad Chandra Upadhyay, learned Counsel appearing for the State has opposed the motion to admit this petition to hearing. He submits that a bare perusal of the definition of 'family' in sub-Rule (c) of Rule 2 of the Rules of 1974, talks of dependents of a Government servant under dying-in-harness. It does not expressly or by necessary intendment, refers to an unborn child to be included in the definition of 'family'. 7. This Court has given a thoughtful consideration to the matter. Here, a very different issue arises under the Rules of 1974. Rule 5 of the Rules of 1974, as is material for the present case, is extracted below: “5. 7. This Court has given a thoughtful consideration to the matter. Here, a very different issue arises under the Rules of 1974. Rule 5 of the Rules of 1974, as is material for the present case, is extracted 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) … …. … (ii) … …. … (iii) … …. … (2) *** *** *** (3) Every appointment 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) *** *** ***” (Emphasis by Court) 8. Likewise, under Rule 2(c) the term 'family' has been defined as follows : “2. (4) *** *** ***” (Emphasis by Court) 8. Likewise, under Rule 2(c) the term 'family' has been defined as follows : “2. Definitions.—In these rules, unless the context otherwise requires— (a) *** *** *** (b) *** *** *** (c) “family” shall include the following relations of the deceased Government servant: (i) wife or husband; (ii) sons/adopted sons; (iii) unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughter-in-law; (iv) unmarried brothers, unmarried sisters and widowed mother dependant on the deceased Government servant, if the deceased Government servant was unmarried; (v) aforementioned relations of such missing Government servant who has been declared as “dead” by the Competent Court: Provided that if a person belonging to any of the abovementioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word “family” shall also include the grandsons and the unmarried grand daughters of the deceased Government servant dependent on him.” 9. A perusal of the right, which a member of the family of the deceased to compassionate appointment has been given by Rule 5 of the Rules of 1974, makes it clear that it is a member of his family who is entitled to claim compassionate appointment when the deceased, who is in harness and a Government employee, suddenly passes away. Sub-rule (3) of Rule 5 of the Rules of 1974 further clarifies that the appointment by way of concession under the Rules shall be granted to that person of the family who shall maintain other members of the family of the deceased Government servant, as were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves. The 'family' has been defined under sub-rule (c) of Rule 2 of the Rules of 1974 to mean wife or husband, sons including adopted sons, unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughter-in-law. Now, married daughters and married adopted daughters would also be included within the definition of 'family' in view of the decision of this Court in Vimla Srivastava and others vs. State of U.P. and others, 2016 (1) ADJ 21 . In the said decision, this Court has held the qualification about daughters or adopted daughters being 'unmarried' is discriminatory and violative of Articles 14 and 15 of the Constitution. In the said decision, this Court has held the qualification about daughters or adopted daughters being 'unmarried' is discriminatory and violative of Articles 14 and 15 of the Constitution. Now, in the Rule, therefore, daughters and adopted daughters are members of the family, irrespective of their marital status. Also included are unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried. There is no one else who has been held entitled. The definition of a son under sub-rule (c) of Rule 2 ex facie does not lend itself to a construction that son would also include a child posthumously born. It is intended to take care of those members of the family who were dependent on the Government servant, when he/she passed away in harness. 10. An unborn child does have rights under laws relating to property because it is said that an unborn child is en venture sa mere; but, to extend to an unborn child the right to compassionate appointment would be contrary to the plain intendment of the Rules of 1974. Even otherwise, the welfare measure under the Rules of 1974, though construed liberally in case of members of the deceased’s family who have not been able to tide over the financial crisis till a minor attains majority and applies under the Rules, in the opinion of this Court, cannot be stretched to a limit where an unborn child is also to be granted a right to apply under the Rules of 1974. The right if granted would be too remote. Also, a compassionate appointment under the Rules of 1974 is in the nature of a concession, and while full effect is to be given to its provisions by extending the concession to those who are eligible under the provisions, its benefits cannot be extended, founded on doctrines of property laws, that essentially govern rights to matters, like inheritance, disposition in the sphere of private law. The principles would have little application in laws governing employment under the State, that are essentially public law matters, always to be guarded against a violation of the equality clause enshrined under Articles 14 and 16 of the Constitution. 11. The principles would have little application in laws governing employment under the State, that are essentially public law matters, always to be guarded against a violation of the equality clause enshrined under Articles 14 and 16 of the Constitution. 11. In the opinion of this Court, an extension of the welfare approach under the Rules of 1974 to that limit would do more harm than good to the rights of citizen, who otherwise have a right to consideration for appointment to posts under the State in accordance with the recruitment rules, postulating equality of opportunity but no concession. 12. This question arose before a Division Bench of the Kerala High Court in Priyesh Vasudevan vs. Shameena P. & Ors., 2005 SCC OnLine Ker 718 : 2006 Lab IC 303, where a contrary view was taken regarding the rights of a posthumous child to compassionate appointment under the Dying in Harness Scheme in the State of Kerala, that was extended to teachers of aided Schools under Rule 51-B of Chapter XIV A of the Kerala Education Rules. In the context of the rights of a posthumous child to compassionate appointment, it was held in Priyesh Vasudevan (supra) : “31. The Compassionate Employment Scheme recognizes the rights of a minor to get employment assistance. A minor is treated as a dependent under the scheme. A child born one day before the death of the Government servant would also be treated as a dependent. The scheme would apply in favour of the family of the deceased Government Servant if the annual income of the family does not exceed Rs. 1,50,000/-. Dependency is determined mainly with reference to the income of the family. No enquiry is contemplated whether the minor was being looked after by deceased Government servant. The minor need not prove that he was depending on his deceased father for his livelihood. Instances of father neglecting to maintain his minor children are many. If we were to hold that such a child is not dependent, it would be disastrous and it would be against the scheme itself. If so, how could we hold that a child in the womb is not a dependent? The rights of the child in the womb, in the matter of succession, are well protected by laws of the land. If so, how could we hold that a child in the womb is not a dependent? The rights of the child in the womb, in the matter of succession, are well protected by laws of the land. If so, how could it justifiably be held that a subsequent born child should suffer because of the calamity of his father's death having taken place before he was born? Is there any difference, in the matter of dependency, between a child born one day before and a child born one day after the death of his father or mother? The only answer would be in the negative. It will not be altogether out of context to note that in the matter of dependency a Division Bench of this Court in St. Ignatius High School v. State of Kerala, I.L.R. (2005) 3 Kerala 666, has held that a married daughter is also entitled to be considered for being appointed under the dying-in-harness scheme. 32. With respect, we do not agree with the view taken in AIR 1939 Lahore 290 and we accept the view taken by the Calcutta High Court relied on the decisions of the Madras, Bombay and Allahabad High Courts. It is to be noted that a provision similar to the ‘Explanation’ in Section 6 of the Limitation Act, 1963 was not available in the Indian Limitation Act, 1908. 33. Therefore, we are of the view that a child in the womb would be a ‘dependent’ under the Scheme and that a posthumous child is entitled to the benefit of the Compassionate Employment Scheme on his attaining majority, provided, the application is filed within the period provided in clause 19 of the scheme.” 13. In Appeal by Special Leave from the aforesaid decision of the Kerala High Court, their Lordships of the Supreme Court reversed the decision in Civil Appeal No.5203 of 2010, State of Kerala & Ors. vs. Priyesh Vasudevan, decided on 09.07.2010, holding thus: “3. The subject matter of the writ petition before the learned Single Judge was whether an unborn child had a right to be considered for appointment under the Compassionate Employment Scheme which was then applicable to teachers of aided schools under Rule 51B of Chapter XIVA of the Kerala Education Rules. 4. vs. Priyesh Vasudevan, decided on 09.07.2010, holding thus: “3. The subject matter of the writ petition before the learned Single Judge was whether an unborn child had a right to be considered for appointment under the Compassionate Employment Scheme which was then applicable to teachers of aided schools under Rule 51B of Chapter XIVA of the Kerala Education Rules. 4. The Division Bench of the High Court has gone on a tangent with regard to the issue involved in the writ appeal and has, on the other hand, proceeded to lay emphasis on the question of a right of an unborn child to succeed to rights of property forgetting that the case involved the question of appointment on compassionate ground which is meant for helping a immediate financial crisis. The High Court has decided the matter on the basis of the provisions of the Limitation Act, the Hindu Succession Act and also the Indian Succession Act, 1925, relating to minors and unborn children. 5. Having regard to the accepted principles relating to appointment on compassionate grounds, we are unable to sustain the approach of the Division Bench of the Kerala High Court and the judgment of the Division Bench is, therefore, set aside.” (Emphasis by Court) 14. This Court is, thus, of opinion that a posthumous child does not qualify for a minor and a member of the deceased Government servant’s family under the Rules of 1974, entitling him to be considered for compassionate appointment, once he attains majority. 15. In the result, this petition fails and is dismissed. There shall be no order as to costs.