Gyanendra Kumar vs Allahabad High Court Thru. Its Registrar General

learned counsel for opposite parties.

2. Counter-affidavit filed today is taken on record.

3. Petition has been filed challenging order dated 24th November, 2023, whereby petitioners’ case for grant of compassionate appointment has been rejected primarily on the ground that his brother is already in government service.

4. Learned counsel for petitioner submits that a perusal of Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 clearly does not prescribe any prohibition for consideration of one son for compassionate appointment even if the other son is already in government employment. It is submitted that such a prohibition extends only to the spouse of the deceased. He has placed reliance on a judgment rendered by Coordinate Bench of this Court in the case of Kumari Nisha versus State of U.P. and others, Writ A No. 16068 of

5. Learned counsel for opposite parties on the basis of counter-affidavit has refuted submissions advanced by learned counsel for petitioner and submits that rejection of petitioner's candidature was not only on account of his brother Shailendra Kumar being employed as a government servant but was 2 WRIA No. 9849 of 2023 also on ground that since one member of the family is being fully employed, then considering financial condition of the family based on the employment of their family members, is not entitled for compassionate appointment.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the aspect of petitioner being eligible for consideration for compassionate appointment in terms of demise of his father late Deshra as a Class IV employee in District Judgeship Unnao is admitted. It is also admitted that petitioner had applied for same within the time prescribed but his candidature has been rejected only on the ground that other son of deceased is gainfully employed as a government servant.

7. For purposes of adjudication of this dispute, it would be relevant to examine the provisions of Rule 5 of Rules of 1974, which are as follows:- " 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 the 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 qualification prescribed for the post, (ii) is otherwise qualified 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 for 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 3 WRIA No. 9849 of 2023 fixed for making the application for employment along with the necessary documents/proof in support of such de lay 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. (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 [5-A. Recruitment of member of the family of Police/ P.A.C Personnel who dies in May, 1973.-Notwithstanding anything contained to the contrary contained in Rule 5 or in any other rule, the provisions of these rules shall apply in the case of members of the family of twenty-two police or per Provincial Armed Constabulary personnel who died as a result of disturbances in May, 1973, as they apply, in the case of a Government servant during dying in harness after the commencement of these rules)]"

8. Upon consideration of the aforesaid Rule, it is evident that the only prohibition is that the spouse of deceased government servant should not already be employed under the Central Government or State Government or Corporation or any of the conditions indicated therein. It is quite evident that there is no prohibition for consideration of compassionate appointment of one son of the deceased, even if his brother is already in government service.

9. The only aspect which would require consideration is whether the financial condition of the family is strong enough to an extent that compassionate appointment is not required.

10. In the present case, from perusal of minutes of the meeting dated 27th October, 2023 brought on record as Annexure C.A.1, it is evident that there is no consideration of the financial condition of the family, which is assumed to be good only on account of Shailendra Kumar being gainfully employed as a government servant. There is no discussion whatsoever as to whether the petitioner was dependent on his father or even on his brother as on the 4 WRIA No. 9849 of 2023 date of submitting of application. The said aspect has also been considered by Coordinate Bench of this court in the case of Kumari Nisha (Supra) in the following manner:- " 17. This Court finds that initially Rule 5(1) of the Rules of 1974 provided for compassionate appointment to one family member dependent on the deceased government servant provided he is not in government job meaning thereby that there was only one condition where the compassionate appointment could have been refused i.e. person seeking compassionate appointment was already in government job. Later on, Rule 5(1) of the Rules of 1974 has been amended in the year 1999 and amended Rule 5(1) provides that if the surviving spouse of the deceased government servant is in government job then the other family members dependent on the deceased government servant shall not be entitled for compassionate appointment.

15. This Court further finds that the legislature while amending Rule 5(1) of the Rules of 1974 was conscious of the fact that if one son of the deceased government servant is in government job, his earnings may not be available for survival of the remaining family members of the deceased government servant for the reason that the earnings of the son are meant for survival of his own family (his wife and children) and therefore only one prohibition has been incorporated that if the surviving spouse of the deceased government servant is in government job, the other dependent family members are not entitled for compassionate appointment.

16. This court is of the view that once there is no prohibition under the Rules of 1974 and the Government order dated 04.09.2000 wherein identical provision has been made for the compassionate appointment on the death of a teacher, that if one son of the deceased teacher is in government job, the other dependent family member of the deceased teacher is not entitled for compassionate appointment, there cannot be any occasion for the District Basic Education Officer, Gorkhpur to reject petitioner's case for compassionate appointment on the ground that her brother is in government job. Petitioner's brother has given his affidavit, wherein he has categorically stated that though he is in government job but is residing separately from his parents, therefore, unless there was some material before the District Basic Education Officer, Gorakhpur, he could not have recorded a finding that since petitioner's brother is in government job, his earnings are sufficient for sustenance of surviving family of the deceased teacher accordingly, order dated 26.12.2022 is not sustainable in the eyes of law."

11. This court is in respectful agreement with the enunciation of law as in 5 WRIA No. 9849 of 2023 the aforesaid judgment.

12. In view thereof, the impugned order dated 24th November 2023 is hereby quashed by issuance of writ in the nature of Certiorari alongwith minutes of meeting rejecting petitioner's candidature for same. The committee constituted by the High Court for such purpose shall reconsider petitioner's case for compassionate appointment expeditiously in accordance with law, preferably within a period of two months from the date a certified copy of the order is served upon the opposite parties 2 and 3. It is directed that the aspect of the petitioner's brother being in government service shall ignored while considering petitioner's case for compassionate appointment.

13. Resultantly the petition succeeds and is allowed. Parties to bear their own costs. November 19, 2025 prabhat (Manish Mathur,J.) PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

learned counsel for opposite parties.

2. Counter-affidavit filed today is taken on record.

3. Petition has been filed challenging order dated 24th November, 2023, whereby petitioners’ case for grant of compassionate appointment has been rejected primarily on the ground that his brother is already in government service.

4. Learned counsel for petitioner submits that a perusal of Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 clearly does not prescribe any prohibition for consideration of one son for compassionate appointment even if the other son is already in government employment. It is submitted that such a prohibition extends only to the spouse of the deceased. He has placed reliance on a judgment rendered by Coordinate Bench of this Court in the case of Kumari Nisha versus State of U.P. and others, Writ A No. 16068 of

5. Learned counsel for opposite parties on the basis of counter-affidavit has refuted submissions advanced by learned counsel for petitioner and submits that rejection of petitioner's candidature was not only on account of his brother Shailendra Kumar being employed as a government servant but was 2 WRIA No. 9849 of 2023 also on ground that since one member of the family is being fully employed, then considering financial condition of the family based on the employment of their family members, is not entitled for compassionate appointment.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the aspect of petitioner being eligible for consideration for compassionate appointment in terms of demise of his father late Deshra as a Class IV employee in District Judgeship Unnao is admitted. It is also admitted that petitioner had applied for same within the time prescribed but his candidature has been rejected only on the ground that other son of deceased is gainfully employed as a government servant.

7. For purposes of adjudication of this dispute, it would be relevant to examine the provisions of Rule 5 of Rules of 1974, which are as follows:- " 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 the 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 qualification prescribed for the post, (ii) is otherwise qualified 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 for 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 3 WRIA No. 9849 of 2023 fixed for making the application for employment along with the necessary documents/proof in support of such de lay 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. (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 [5-A. Recruitment of member of the family of Police/ P.A.C Personnel who dies in May, 1973.-Notwithstanding anything contained to the contrary contained in Rule 5 or in any other rule, the provisions of these rules shall apply in the case of members of the family of twenty-two police or per Provincial Armed Constabulary personnel who died as a result of disturbances in May, 1973, as they apply, in the case of a Government servant during dying in harness after the commencement of these rules)]"

8. Upon consideration of the aforesaid Rule, it is evident that the only prohibition is that the spouse of deceased government servant should not already be employed under the Central Government or State Government or Corporation or any of the conditions indicated therein. It is quite evident that there is no prohibition for consideration of compassionate appointment of one son of the deceased, even if his brother is already in government service.

9. The only aspect which would require consideration is whether the financial condition of the family is strong enough to an extent that compassionate appointment is not required.

10. In the present case, from perusal of minutes of the meeting dated 27th October, 2023 brought on record as Annexure C.A.1, it is evident that there is no consideration of the financial condition of the family, which is assumed to be good only on account of Shailendra Kumar being gainfully employed as a government servant. There is no discussion whatsoever as to whether the petitioner was dependent on his father or even on his brother as on the 4 WRIA No. 9849 of 2023 date of submitting of application. The said aspect has also been considered by Coordinate Bench of this court in the case of Kumari Nisha (Supra) in the following manner:- " 17. This Court finds that initially Rule 5(1) of the Rules of 1974 provided for compassionate appointment to one family member dependent on the deceased government servant provided he is not in government job meaning thereby that there was only one condition where the compassionate appointment could have been refused i.e. person seeking compassionate appointment was already in government job. Later on, Rule 5(1) of the Rules of 1974 has been amended in the year 1999 and amended Rule 5(1) provides that if the surviving spouse of the deceased government servant is in government job then the other family members dependent on the deceased government servant shall not be entitled for compassionate appointment.

15. This Court further finds that the legislature while amending Rule 5(1) of the Rules of 1974 was conscious of the fact that if one son of the deceased government servant is in government job, his earnings may not be available for survival of the remaining family members of the deceased government servant for the reason that the earnings of the son are meant for survival of his own family (his wife and children) and therefore only one prohibition has been incorporated that if the surviving spouse of the deceased government servant is in government job, the other dependent family members are not entitled for compassionate appointment.

16. This court is of the view that once there is no prohibition under the Rules of 1974 and the Government order dated 04.09.2000 wherein identical provision has been made for the compassionate appointment on the death of a teacher, that if one son of the deceased teacher is in government job, the other dependent family member of the deceased teacher is not entitled for compassionate appointment, there cannot be any occasion for the District Basic Education Officer, Gorkhpur to reject petitioner's case for compassionate appointment on the ground that her brother is in government job. Petitioner's brother has given his affidavit, wherein he has categorically stated that though he is in government job but is residing separately from his parents, therefore, unless there was some material before the District Basic Education Officer, Gorakhpur, he could not have recorded a finding that since petitioner's brother is in government job, his earnings are sufficient for sustenance of surviving family of the deceased teacher accordingly, order dated 26.12.2022 is not sustainable in the eyes of law."

11. This court is in respectful agreement with the enunciation of law as in 5 WRIA No. 9849 of 2023 the aforesaid judgment.

12. In view thereof, the impugned order dated 24th November 2023 is hereby quashed by issuance of writ in the nature of Certiorari alongwith minutes of meeting rejecting petitioner's candidature for same. The committee constituted by the High Court for such purpose shall reconsider petitioner's case for compassionate appointment expeditiously in accordance with law, preferably within a period of two months from the date a certified copy of the order is served upon the opposite parties 2 and 3. It is directed that the aspect of the petitioner's brother being in government service shall ignored while considering petitioner's case for compassionate appointment.

13. Resultantly the petition succeeds and is allowed. Parties to bear their own costs. November 19, 2025 prabhat (Manish Mathur,J.) PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench