Km. Ruchi vs State Of U.P. Thru. Prin. Secy. Basic Education

1. Heard Sri Mohd. Aslam Beg, learned counsel for the petitioner as well as learned Standing Counsel on behalf of the respondents.

2. With the consent of the parties present petition is being decided at the admission stage itself.

3. The petitioner has assailed the order dated 30.05.2024 passed by the respondent no. 3 – Divisional Joint Director of Education, Lucknow thereby rejecting the representation of the petitioner for compassionate appointment under Dying in Harness Rules, 1974 only on the ground that application was made after a substantial lapse of time and consequently there was no reason for condoning the said delay and consequently the application of the petitioner has been rejected.

4. While assailing the said order learned counsel for the petitioner has submitted that father of the petitioner was working on the post of Sweeper-cum-Chowkidar at Government Inter College Rampur Mathura, District - Sitapur and died in harness on 24.01.2009. At the time of his death the petitioner was only 14 years of age and a minor and consequently could not have made application for appointment under Dying in Harness Rules, 1974. On attaining the age of majority on 18.08.2015 the petitioner moved an application before The District Inspector of Schools, Sitapur, who in turn forwarded the matter to the Divisional Joint Director of Education, Lucknow on 09.10.2017 (Annexure-9 to the writ petition), considering the fact that the petitioner has moved the application beyond the period of five years from the date of death of the government servant.

5. When the matter was kept pending at the level of the State Government and consequently the petitioner was constrained to approach before this Court by filing Writ - A No. 1257 of 2024 before this Hon?ble Court which was decided on 07.03.2024 with a direction to the respondents to consider the application of the petitioner for compassionate appointment under Dying in Harness Rules, 1974. It is in compliance of the direction of this Court that the impugned order dated 30th May, 2024 has been 2 WRIA No. 13282 of 2025 passed rejecting the application of the petitioner for appointment under Dying in Harness Rules, 1974.

6. Learned counsel for the petitioner submits that there has been some delay in approaching this Court assailing the order dated 30.05.2024. He submits that it was due to the factors beyond his control as narrated in the writ petition which pertains to his weak financial position and also family problems. Learned counsel for the petitioner submits that this aspect of the matter where the legal heir of the deceased government servant is minor at the time of death of the government servant claiming for appointment on attaining the age of majority the delay in making such application has been held by the Full Bench of this Court to be a valid reason and directed the State Government to condone the delay under Rule 5 of Dying in Harness Rules, 1974. When the petitioner was minor at the time of death and immediately on attaining the age of majority has moved application under Dying in Harness Rules, 1974. It is in these very circumstances that the Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U.P. and others, AIR 2015 All 47 (FB) interpreting the the said provision has given its finding in paragraph 32 of the judgment which is reproduced herein below :- "32. As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment of the Division Benbch in Vivek Yadav's case, (2010 (5) ALJ 325) holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will nor be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation, with respect, requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct positionn in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blindfolded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify that the second proviso to Rule 5 requires an applicant, who invokes the power of dispensation or relaxation under the first proviso of the time limit of vie years, to make out a case of undue hardship by elucidating, in writing, with necessary documentary evidence and proof, the reasons and justification for the delay. The Government may, in appropriate case, when it is satisfied on the basis of the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso to Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms. These special appeals along with other connected appeals shall now be placed before the appropriate Bench in accordance with the roster of work."

7.The petitioner has further placed reliance on some of the decisions of this Court including the case of Subhash Chandra Tewari Vs. State Of U.P. Thru. Prin. Secy. Estate Deptt. Lko. And Another passed on 12.10.2022 in Writ - A No. - 6739 of 2022.

8. In light of the above, it is noticed that the impugned order has been 3 WRIA No. 13282 of 2025 passed without considering the relevant aspect of the matter that the petitioner was minor and there was no delay in moving the said application which was moved immediately on attaining the age of majority. It is also noticed that the case of the petitioner is fully covered by the judgment of this Court in the case of Shiv Kumar Dubey (supra). Accordingly the order dated 30.05.2024 is set aside. It is also noticed that there has been a delay of two years in approaching this Court the matter is remitted back to the State Government to consider condoning the delay.

9. The matter is accordingly remitted back to respondent No. 3 – Divisional Joint Director of Education, Lucknow to consider the candidature of the petitioner for compassionate appointment under Dying in Harness Rules, 1974 considering the fact that there was no delay in moving the application for compassionate appointment and pass fresh order, expeditiously, say within a period of six weeks from the date a certified copy of this order is placed before him in accordance with law.

10. The writ petition is, thus, partly allowed. November 18, 2025 A. Verma (Alok Mathur,J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Mohd. Aslam Beg, learned counsel for the petitioner as well as learned Standing Counsel on behalf of the respondents.

2. With the consent of the parties present petition is being decided at the admission stage itself.

3. The petitioner has assailed the order dated 30.05.2024 passed by the respondent no. 3 – Divisional Joint Director of Education, Lucknow thereby rejecting the representation of the petitioner for compassionate appointment under Dying in Harness Rules, 1974 only on the ground that application was made after a substantial lapse of time and consequently there was no reason for condoning the said delay and consequently the application of the petitioner has been rejected.

4. While assailing the said order learned counsel for the petitioner has submitted that father of the petitioner was working on the post of Sweeper-cum-Chowkidar at Government Inter College Rampur Mathura, District - Sitapur and died in harness on 24.01.2009. At the time of his death the petitioner was only 14 years of age and a minor and consequently could not have made application for appointment under Dying in Harness Rules, 1974. On attaining the age of majority on 18.08.2015 the petitioner moved an application before The District Inspector of Schools, Sitapur, who in turn forwarded the matter to the Divisional Joint Director of Education, Lucknow on 09.10.2017 (Annexure-9 to the writ petition), considering the fact that the petitioner has moved the application beyond the period of five years from the date of death of the government servant.

5. When the matter was kept pending at the level of the State Government and consequently the petitioner was constrained to approach before this Court by filing Writ - A No. 1257 of 2024 before this Hon?ble Court which was decided on 07.03.2024 with a direction to the respondents to consider the application of the petitioner for compassionate appointment under Dying in Harness Rules, 1974. It is in compliance of the direction of this Court that the impugned order dated 30th May, 2024 has been 2 WRIA No. 13282 of 2025 passed rejecting the application of the petitioner for appointment under Dying in Harness Rules, 1974.

6. Learned counsel for the petitioner submits that there has been some delay in approaching this Court assailing the order dated 30.05.2024. He submits that it was due to the factors beyond his control as narrated in the writ petition which pertains to his weak financial position and also family problems. Learned counsel for the petitioner submits that this aspect of the matter where the legal heir of the deceased government servant is minor at the time of death of the government servant claiming for appointment on attaining the age of majority the delay in making such application has been held by the Full Bench of this Court to be a valid reason and directed the State Government to condone the delay under Rule 5 of Dying in Harness Rules, 1974. When the petitioner was minor at the time of death and immediately on attaining the age of majority has moved application under Dying in Harness Rules, 1974. It is in these very circumstances that the Full Bench of this Court in the case of Shiv Kumar Dubey Vs. State of U.P. and others, AIR 2015 All 47 (FB) interpreting the the said provision has given its finding in paragraph 32 of the judgment which is reproduced herein below :- "32. As regards the judgment of the Division Bench in Vivek Yadav (supra), the first part of the judgment of the Division Benbch in Vivek Yadav's case, (2010 (5) ALJ 325) holds in paragraph 4 that since Rule 5 contemplates an application by a competent person, in a case where the applicant is a minor, it will nor be possible for a minor to make an application during the period of his minority. Therefore, considering the object of the Rules, it was held that the proviso to Rule 5 must normally be exercised in such cases. This observation, with respect, requiring that the proviso to Rule 5 must normally be exercised for the purpose of dealing with a case in a just and equitable manner would not be reflective of the correct positionn in law. The subsequent decision in Subhash Yadav (supra) only holds that the Government cannot dismiss an application which has been moved after five years blindfolded but has to apply its mind rationally to all the facts and circumstances of the case. In this regard, we clarify that the second proviso to Rule 5 requires an applicant, who invokes the power of dispensation or relaxation under the first proviso of the time limit of vie years, to make out a case of undue hardship by elucidating, in writing, with necessary documentary evidence and proof, the reasons and justification for the delay. The Government may, in appropriate case, when it is satisfied on the basis of the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso to Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. We answer the reference accordingly in the aforesaid terms. These special appeals along with other connected appeals shall now be placed before the appropriate Bench in accordance with the roster of work."

7.The petitioner has further placed reliance on some of the decisions of this Court including the case of Subhash Chandra Tewari Vs. State Of U.P. Thru. Prin. Secy. Estate Deptt. Lko. And Another passed on 12.10.2022 in Writ - A No. - 6739 of 2022.

8. In light of the above, it is noticed that the impugned order has been 3 WRIA No. 13282 of 2025 passed without considering the relevant aspect of the matter that the petitioner was minor and there was no delay in moving the said application which was moved immediately on attaining the age of majority. It is also noticed that the case of the petitioner is fully covered by the judgment of this Court in the case of Shiv Kumar Dubey (supra). Accordingly the order dated 30.05.2024 is set aside. It is also noticed that there has been a delay of two years in approaching this Court the matter is remitted back to the State Government to consider condoning the delay.

9. The matter is accordingly remitted back to respondent No. 3 – Divisional Joint Director of Education, Lucknow to consider the candidature of the petitioner for compassionate appointment under Dying in Harness Rules, 1974 considering the fact that there was no delay in moving the application for compassionate appointment and pass fresh order, expeditiously, say within a period of six weeks from the date a certified copy of this order is placed before him in accordance with law.

10. The writ petition is, thus, partly allowed. November 18, 2025 A. Verma (Alok Mathur,J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench