JUDGMENT : 1. Heard Sri Laxmi Kant Pathak, learned counsel for petitioner as well as learned Standing Counsel for the respondents. 2. Learned counsel for petitioner has submitted that the mother of the petitioner Smt. Durgawati Dwivedi was working on the post of Senior Assistant in Government Polytechnic, Pratapgarh died in harness on 24.09.2021. She survived by her husband Sri Prem Kumar Dubey, one son (petitioner) and one daughter. 3. On death of Smt. Durgawati Dwivedi, the petitioner moved an application for appointment under dying in Harness Rules, 1974 claiming appointment on compassionate ground. His application has been rejected by means of impugned order dated 23.08.2022 passed by Director, Technical Education, Uttar Pradesh on the ground that the father of the petitioner, Prem Kumar Dubey was working in the Labour Department in Government of U.P. and has subsequently retired and is receiving pension from the State Government. 4. It has further been stated that in terms of rule 5 of Dying in Harness Rules, it is provided that in case the spouse of the deceased Government servant is an employee of the Central Government or a State Government then he or she shall not not be eligible for the the benefit under the Dying Harness Rules, 1974. 5. Assailing the order dated 23.08.2022, learned counsel for petitioner has submitted that the father of the petitioner is a retired employee and is no longer in employment and consequently Rule 5 of Dying Harness Rules, 1974 would not be applicable in the facts of the present case. He further submits that petitioner was totally dependent on his mother and was not dependent on his father and for the reasons also he has while assailing the order dated 23.08.2022 sought a direction for appointment on compassionate grounds under Dying in Harness Rules, 1974. 6. Learned Standing Counsel on the other hand submits that the very purpose of Rule 5 is that a person who is already in government service would be receiving remuneration from the State government and subsequent to his retirement would be receiving pension and consequently a legal heirs of such a person cannot be held to be the destitute so as to give the benefit of dying in Harness Rules. 7. 7. He further submits that in various judgment of the Apex Court as well as by this Court, it has repeatedly been held that the purpose of Rules of 1974 are only provide succor to the immediate family of the sole bread earner who has died in harness so as to prevent destitution to the entire family. It is for this very purpose of Rule 5 of Rules, 1974, it is provided that in case the spouse is employed with the State or Central Government then such a person would not be eligible for appointment under Dying in Harness Rules, 1974. 8. It is stated that undoubtedly the father of the petitioner was a government servant and he has retired and presently receiving pension which should be sufficient to support him and his family and consequently no such claim can be made by the petitioner that the family has fallen into destitution. 9. He submits that Rule 5 should be purposely interpreted in such a manner so as not defeat the purpose of statute and hence submits that there is no infirmity in passing of the impugned order. He further submits that there is no material adduced by the petitioner to support the contention made by him in the petition. 10. I have heard rival contention of the parties. 11. It is noticed that the mother of the petitioner was working on the post of Senior Assistant in Government Polytechnic, Pratapgarh died in harness on 24.09.2021. The father of the petitioner was also a government servant and working in the Labour Department and admittedly he is receiving pension. 12. The petitioner moved an application under Rules of 1974 for compassionate appointment being the son of deceased government servant and his application has been rejected by the impugned order on the ground that his father was also in government service and his claim for appointment is barred by Rule 5 of Rules of 1974. 13. 12. The petitioner moved an application under Rules of 1974 for compassionate appointment being the son of deceased government servant and his application has been rejected by the impugned order on the ground that his father was also in government service and his claim for appointment is barred by Rule 5 of Rules of 1974. 13. Rule 5 of the Dying in Harness Rules, 1975 are quoted hereinbelow:- "Rule 5 of U.P. Recruitment of Dependant of Government Servant Dying in Harness Rules, 1974 where it is provided that "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." 14. It is relevant to refer here the various judgments of Hon'ble Supreme Court with regard to the purpose and object behind appointing persons of the deceased government employee on compassionate grounds. 15. Hon'ble the Supreme Court in the case of State of Himachal Pradesh and another Vs. Shashi Kumar, 2019 (3) SCC 653 , held as under:- "18. While considering the rival submissions, it is necessary to bear in mind that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the Policy on compassionate appointment. The basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. The basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependent member of the family could be considered. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfill the terms of the Policy. In that sense, it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependent member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State. 19. The policy in the present case which was formulated on 18 January 1990 categorically speaks of providing employment assistance to dependents of government servants who have died while in service, "leaving their families in indigent circumstances". The Policy, in other words, is designed to meet the needs of those families where the death of a government servant has left them in indigent circumstances, requiring immediate means of subsistence. The policy recognizes in Paragraph 10 that the benefits which are received by a family on account of welfare measures are required to be considered. Among them, the policy stipulates that family pension and death gratuity are required to be taken into account in assessing the financial circumstances of the family. The Policy does not preclude the dependants of a deceased employee from being considered for compassionate appointment merely because they are in receipt of family pension. What the Policy mandates is that the receipt of family pension should be taken into account in considering whether the family has been left in indigent circumstances requiring immediate means of subsistence. The receipt of family pension is, therefore, one of the considerations which is to be taken into account. What the Policy mandates is that the receipt of family pension should be taken into account in considering whether the family has been left in indigent circumstances requiring immediate means of subsistence. The receipt of family pension is, therefore, one of the considerations which is to be taken into account. Paragraph 10(c) of the Policy sets out the measures provided by the State which have a bearing on the financial need of the family. 21. The decision in Govind Prakash Verma (supra) has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal Vs. State of Haryana, (1994) 4 SCC 138 . The principles which have been laid down in Umesh Kumar Nagpal (supra) have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: "2. ...As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned." 16. Hon'ble the Supreme Court in the case of State of Uttar Pradesh and others Vs. Premlata, 2022 (1) SCC 30 , held as under:- "8. While considering the issue involved in the present appeal, the law laid down by this court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision this court in Civil Appeal No.5122 of 2021 in the case of the Director of Treasuries in Karnataka & Anr. vs. V. Somashree, had occasion to consider the principle governing the grant of appointment on compassionate ground. In the recent decision this court in Civil Appeal No.5122 of 2021 in the case of the Director of Treasuries in Karnataka & Anr. vs. V. Somashree, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this court in N.C. Santhosh vs. State of Karnataka and Ors. reported in (2020) 7 SCC 617 , this Court has summarized the principle governing the grant of appointment on compassionate ground as under: (i) that the compassionate appointment is an exception to the general rule; (ii) that no aspirant has a right to compassionate appointment; (iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India; (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy; (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment. 9. As per the law laid down by this court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Article 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right. 9.1 In the case of State of Himachal Pradesh and Anr. vs. Shashi Kumar reported in (2019) 3 SCC 653 , this court had an occasion to consider the object and purpose of appointment on compassionate ground and considered decision of this court in case of Govind Prakash Verma vs. LIC reported in (2005) 10 SCC 289 , in para 21 and 26, it is observed and held as under: "21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 , has been considered subsequently in several decisions. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 , has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] . The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract : (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] , SCC pp. 13940, para 2) "2. … As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned." "26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case." 17. Hon'ble the Supreme Court in the case of Fertilizers and Chemicals Travancore Ltd. and Others Vs. Anusree K.B., 2022 SCC OnLine SC 1331, held as under:- "18. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased." 18. The exclusion of the person whose one of the parents is employed has been done for the purpose that such a member of the family of the deceased would not fall into destitution on death of the Government Servant as he has the spouse of the Government Servant, who himself/herself is a government employee is surviving and consequently the family should not fall into destitution and hence for appointment of such person has been kept out of the purview of the Dying in Harness Rules, 197. 19. Needles to say that the father of the petitioner was pensioner and was previously in the employment of the State government and this Court is not convinced by the Statement made by the petitioner that he was supported only by his mother. 19. Needles to say that the father of the petitioner was pensioner and was previously in the employment of the State government and this Court is not convinced by the Statement made by the petitioner that he was supported only by his mother. It has been admitted by him that his parents had not been divorced and they were living together till the death of the mother of the petitioner and there is no material available on record to indicate that the petitioner was supported solely by his mother and there is no evidence available that they were living separately . 20. Hon'ble the Supreme Court in the case of V. Sivamurthy Vs. State of Andhra Pradesh and others, 2008 13 SCC 730 has summarized the principles relating to compassionate appointment as follows:- "9. The principles relating to compassionate appointments may be summarized thus : (a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are well recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies. (b) Two well recognized contingencies which are carved out as exceptions to the general rule are : (i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service. (ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner. Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project affected persons. (Particularly where the law under which the acquisition is made does provide for market value and solatium, as compensation). (c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies. (d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies. (d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, class III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts." 21. Hon'ble the Supreme Court in the case of State of Karnataka Vs. Appa Balu Ingale, 1995 Supp. (4) SCC 469 has held as under:- "Judge must be a jurist endowing with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilictions. Therefore, the Judges would adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time." 22. The Court has also considered the fact that appointment on the ground of descent is violative of the constitutional provisions and specifically barred under Article 16 of the Constitution of India and it is only exception carved out the said Rules the appointment is given on compassionate grounds and consequently the Court was of the opinion that the Rules have to be strictly construed. This Court is of the considered view that Rule 5 which provides for ineligibility for appointment on compassionate grounds for certain category of the persons and the case of the petitioner clearly falls under the exclusionary clause provided under Rule 5 and consequently no benefit of the same can be given to the petitioner. In case any interpretation where the benefit is granted to the petitioner, then it would run clearly contrary to the specific mandate provided in Rule 5 of Rules, 1974 and consequently such a direction cannot be given by this Court in exercise of powers under Article 226 of the Constitution of India. In case any interpretation where the benefit is granted to the petitioner, then it would run clearly contrary to the specific mandate provided in Rule 5 of Rules, 1974 and consequently such a direction cannot be given by this Court in exercise of powers under Article 226 of the Constitution of India. Though the word used in Rule 5 of Rule of 1974 that the spouse should not be "employed under Central or State Government" but will not only include persons who are in employment at the time of death of the Government Servant but also persons who have retired or "were in employment of Central or State Government". 23. The benefit of employment on compassionate ground is available to a limited section of persons who are specifically included in the Rule of 1974. The purpose of grant of appointment has been clearly culled by various judgments of the Supreme Court and such appointment is provided to prevent destitution. Though the mother of the petitioner working in government service died in harness, but her husband was also on in government service in the Labour Department and had retired prior to death of his wife. After the retirement he is receiving pension. 24. This court is of the considered view that if the spouse of the deceased government servant is receiving pension then it cannot be said that the family would fall into destitution as the pensioner father can very well take care of the petitioner, and hence he cannot claim benefit of compassionate appointment under Rule of 1974, and his claim would be deemed to be included in Rule 5 of Rule of 1974 25. In light of the above and specially considering the fact that a specific provisions under said rules, dis-entitles the petitioner for appointment under Rules, 1974, no such direction sought by the petitioner can be granted. 26. In the aforesaid circumstances, this Court is of the consider view that in Rule 5 of Rules, 1974 even if one of the spouse was in previous employment of the State government, then the legal heir would not be eligible for grant of compassionate appointment and consequently this Court does not find any infirmity in the impugned order dated order 23.08.2022 and consequently the writ petition bereft of merits and is accordingly dismissed.