High Court · 2025

2. Both the parties have been heard at length and accordingly the petition is being disposed of at this stage itself.

3. It has been submitted by learned counsel for the petitioner that father of the petitioner, namely, Udai Singh was working on the post of Constable in U.P. Police who unfortunately died on

23.12.1992. At the time of his death there were four members in family, namely, mother of the petitioner, petitioner's sisters and petitioner himself. At the time of death of his father the petitioner was only four year old as his date of birth is

14.08.1988. The petitioner on attaining the age of 18 years filed application on 08.03.2008 before Senior Superintendent of Police, Nainital. The said application was rejected firstly by means of order dated 10.06.2013 and again on 09.11.2024 by the State Government on the ground of delay of 15 years' and three months' from the date of filing the said application.

4. Learned counsel for the petitioner submits that without applying its due mind to the facts of the case the application of the petitioner has been rejected. He submits that Rule 5 of Uttar Pradesh Government Servants Dying in Harness Rules, 1974 provides for relaxation in limitation for consideration of the candidature of the petitioner for compassionate appointment and the respondents should have adequately considered the case of the petitioner, especially the fact that he was minor at the time of death of his father and immediately on attaining the age of majority he has moved application for compassionate appointment and accordingly though the delay of 15 years was caused but the said delay has not been looked into in peculiar facts and circumstances of the case. He submits that this aspect of the matter was duly considered by a Division Bench of this Court in the case of State of U.P. and others Vs. Vs. Virendra Pal Singh, passed in Special Appeal No.346 of 2021 reported in 2022 (4) LCD 2529 where in the said case the petitioner therein was also a minor at the time of death of his father and had moved the application for compassionate appointment on attaining majority. It is in aforesaid facts and circumstances that the Court in paragraph 13, 14 and 15 has observed as under while allowing the claim of the petitioner therein:- "13. 1974 Rules have been framed under Article 309 of the Constitution of India. The purpose, of course, is to provide the family of deceased employee instant support which may be needed on account of the fact that family in such a situation looses its bread earner. However, the Rules also require that the prayer/application seeking compassionate appointment on the death of an employee is to be made within 5 years. Rule 5 of 1974 Rules, as amended vide Notification dated 16.04.1993, empowers the State Government for condoning the delay. The purpose of empowering the State Government to relax the limitation of 5 years for making the application seeking compassionate appointment is that in an appropriate case where the family of the deceased has not been able to sail through the difficult times which occurred on account of death of the bread earner, the State Government can relax the limitation. There may be various exigencies and situations where the State Government may be justified to relax the Rules in a case where the application within 5 years of the death of employee is not made. One such a situation, in our considered opinion, may arise where the person claiming compassionate appointment is minor at the time of death of the bread earner of the family and he makes the application once he becomes major. It will be a situation where State Government ought to exercise its discretion for relaxing the Rules relating to requirement of making application within 5 years, of course taking into account other relevant factors as well.

14. So far as the facts of the present case are concerned, there is no denial of the fact that the date of birth of the respondent-petitioner is 01.07.1989 who became major only on 01.07.2007. At the time of death of his father, he was merely 6 years of age and once he became major he made application seeking compassionate appointment on 19.03.2008. The State authorities were not considering his prayer/application made for compassionate appointment which compelled him to institute Writ Petition No. 41862(SS) of 2010 after a period of more than 2 years from the date he had made the application. The said writ petition was finally disposed of on 21.07.2010 and the State Government was directed to consider the claim of the respondent-petitioner, however, his claim was rejected on 17.01.2012. The said order dated 17.01.2012 became the subject matter of challenge in Writ Petition No.1527(SS) of 2012 filed by the respondent- petitioner which was allowed on 11.09.2013. The judgment and order dated 11.09.2013 passed by the learned Single Judge in the said writ petition was affirmed by a Division Bench of this Court, vide order dated 02.08.2014 in Special Appeal Defective No. 411 of 2014.

15. What we find in this case is that the appellants-State authorities themselves have taken much more time than required for considering the claim of the respondent-petitioner even after passing of the orders by this Court. Now the claim for compassionate appointment of the respondent- petitioner was denied by the State Government, vide order dated 06.08.2014 only on the reason that he made the application after 13 years from the date of death of his father. The reason for delayed application made by the respondent-petitioner can be understood by any person of common prudence. The respondent-petitioner at the time of death of his father was admittedly 6 years of age who became major only on 01.07.2007 and immediately after attaining the age of majority he made application on 19.03.2008. Thus, delay in making application, if any, can be attributed not to any negligence; rather to the minority of the respondent-petitioner."

5. Considering the present case and in light of the aforesaid judgment we find that the case of the petitioner is also on similar footing in as much as on 23.12.1992 which is the date of death of his father the petitioner was merely four years old and in 2006 when he attained majority he had filed the application for appointment on compassionate grounds. Clearly, there was no delay in filing the said application as the same was filed immediately on attaining the age of majority and, hence, the delay, if any, was to be condoned in exercise of the powers under Rule 5 of the Rules of 1974.

6. In view of the above, this Court is of the considered opinion that the opposite parties have rejected claim of petitioner without adequately considering his case nor considered the fact that this aspect of the matter has already been considered by the Division Bench of this Court.

7. From perusal of impugned order, it also transpires that petitioner's application has been rejected on the ground that at the time of demise of his father, his mother, the widow, failed to apply for compassionate appointment.

8. In the considered opinion of this Court, the aforesaid aspect for rejection of petitioner's application does not have any merit in view of Rule 5 of the Rules 1974, which prescribes that in the event a government servant dies in harness and spouse of 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 aforesaid conditions shall be given suitable appointment.

9. The Rule does not prescribe any condition that spouse of deceased employee is first required to give an application for compassionate appointment and upon failure of the spouse to do so, such employment cannot be provided to any other member of the family.

10. In the present case, it is evident, from record as also indicated in the impugned order that the widow did not apply for compassionate appointment and petitioner's application for such employment is the first application, which was preferred after demise of the government servant.

11. In light of the above, the writ petition is allowed. Order dated 09.11.2024 is set aside.

12. The opposite parties are directed to consider the case of the petitioner afresh if otherwise eligible for compassionate appointment under Dying in Rules, 1974 expeditiously say within a period of six weeks from the date a certified copy of this order is served upon the authority concerned.

13. Parties to bear their own costs. Order Date :- 28.7.2025 Virendra VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

2. Both the parties have been heard at length and accordingly the petition is being disposed of at this stage itself.

3. It has been submitted by learned counsel for the petitioner that father of the petitioner, namely, Udai Singh was working on the post of Constable in U.P. Police who unfortunately died on

23.12.1992. At the time of his death there were four members in family, namely, mother of the petitioner, petitioner's sisters and petitioner himself. At the time of death of his father the petitioner was only four year old as his date of birth is

14.08.1988. The petitioner on attaining the age of 18 years filed application on 08.03.2008 before Senior Superintendent of Police, Nainital. The said application was rejected firstly by means of order dated 10.06.2013 and again on 09.11.2024 by the State Government on the ground of delay of 15 years' and three months' from the date of filing the said application.

4. Learned counsel for the petitioner submits that without applying its due mind to the facts of the case the application of the petitioner has been rejected. He submits that Rule 5 of Uttar Pradesh Government Servants Dying in Harness Rules, 1974 provides for relaxation in limitation for consideration of the candidature of the petitioner for compassionate appointment and the respondents should have adequately considered the case of the petitioner, especially the fact that he was minor at the time of death of his father and immediately on attaining the age of majority he has moved application for compassionate appointment and accordingly though the delay of 15 years was caused but the said delay has not been looked into in peculiar facts and circumstances of the case. He submits that this aspect of the matter was duly considered by a Division Bench of this Court in the case of State of U.P. and others Vs. Vs. Virendra Pal Singh, passed in Special Appeal No.346 of 2021 reported in 2022 (4) LCD 2529 where in the said case the petitioner therein was also a minor at the time of death of his father and had moved the application for compassionate appointment on attaining majority. It is in aforesaid facts and circumstances that the Court in paragraph 13, 14 and 15 has observed as under while allowing the claim of the petitioner therein:- "13. 1974 Rules have been framed under Article 309 of the Constitution of India. The purpose, of course, is to provide the family of deceased employee instant support which may be needed on account of the fact that family in such a situation looses its bread earner. However, the Rules also require that the prayer/application seeking compassionate appointment on the death of an employee is to be made within 5 years. Rule 5 of 1974 Rules, as amended vide Notification dated 16.04.1993, empowers the State Government for condoning the delay. The purpose of empowering the State Government to relax the limitation of 5 years for making the application seeking compassionate appointment is that in an appropriate case where the family of the deceased has not been able to sail through the difficult times which occurred on account of death of the bread earner, the State Government can relax the limitation. There may be various exigencies and situations where the State Government may be justified to relax the Rules in a case where the application within 5 years of the death of employee is not made. One such a situation, in our considered opinion, may arise where the person claiming compassionate appointment is minor at the time of death of the bread earner of the family and he makes the application once he becomes major. It will be a situation where State Government ought to exercise its discretion for relaxing the Rules relating to requirement of making application within 5 years, of course taking into account other relevant factors as well.

14. So far as the facts of the present case are concerned, there is no denial of the fact that the date of birth of the respondent-petitioner is 01.07.1989 who became major only on 01.07.2007. At the time of death of his father, he was merely 6 years of age and once he became major he made application seeking compassionate appointment on 19.03.2008. The State authorities were not considering his prayer/application made for compassionate appointment which compelled him to institute Writ Petition No. 41862(SS) of 2010 after a period of more than 2 years from the date he had made the application. The said writ petition was finally disposed of on 21.07.2010 and the State Government was directed to consider the claim of the respondent-petitioner, however, his claim was rejected on 17.01.2012. The said order dated 17.01.2012 became the subject matter of challenge in Writ Petition No.1527(SS) of 2012 filed by the respondent- petitioner which was allowed on 11.09.2013. The judgment and order dated 11.09.2013 passed by the learned Single Judge in the said writ petition was affirmed by a Division Bench of this Court, vide order dated 02.08.2014 in Special Appeal Defective No. 411 of 2014.

15. What we find in this case is that the appellants-State authorities themselves have taken much more time than required for considering the claim of the respondent-petitioner even after passing of the orders by this Court. Now the claim for compassionate appointment of the respondent- petitioner was denied by the State Government, vide order dated 06.08.2014 only on the reason that he made the application after 13 years from the date of death of his father. The reason for delayed application made by the respondent-petitioner can be understood by any person of common prudence. The respondent-petitioner at the time of death of his father was admittedly 6 years of age who became major only on 01.07.2007 and immediately after attaining the age of majority he made application on 19.03.2008. Thus, delay in making application, if any, can be attributed not to any negligence; rather to the minority of the respondent-petitioner."

5. Considering the present case and in light of the aforesaid judgment we find that the case of the petitioner is also on similar footing in as much as on 23.12.1992 which is the date of death of his father the petitioner was merely four years old and in 2006 when he attained majority he had filed the application for appointment on compassionate grounds. Clearly, there was no delay in filing the said application as the same was filed immediately on attaining the age of majority and, hence, the delay, if any, was to be condoned in exercise of the powers under Rule 5 of the Rules of 1974.

6. In view of the above, this Court is of the considered opinion that the opposite parties have rejected claim of petitioner without adequately considering his case nor considered the fact that this aspect of the matter has already been considered by the Division Bench of this Court.

7. From perusal of impugned order, it also transpires that petitioner's application has been rejected on the ground that at the time of demise of his father, his mother, the widow, failed to apply for compassionate appointment.

8. In the considered opinion of this Court, the aforesaid aspect for rejection of petitioner's application does not have any merit in view of Rule 5 of the Rules 1974, which prescribes that in the event a government servant dies in harness and spouse of 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 aforesaid conditions shall be given suitable appointment.

9. The Rule does not prescribe any condition that spouse of deceased employee is first required to give an application for compassionate appointment and upon failure of the spouse to do so, such employment cannot be provided to any other member of the family.

10. In the present case, it is evident, from record as also indicated in the impugned order that the widow did not apply for compassionate appointment and petitioner's application for such employment is the first application, which was preferred after demise of the government servant.

11. In light of the above, the writ petition is allowed. Order dated 09.11.2024 is set aside.

12. The opposite parties are directed to consider the case of the petitioner afresh if otherwise eligible for compassionate appointment under Dying in Rules, 1974 expeditiously say within a period of six weeks from the date a certified copy of this order is served upon the authority concerned.

13. Parties to bear their own costs. Order Date :- 28.7.2025 Virendra VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench