AJAY KUMAR Vs. STATE OF UTTARAKHAND AND OTHERS

JUDGEMENT

(1.) HEARD Mr. Amish Tiwari, Advocate for petitioner and Mr. N.P. Sah, Standing Counsel for State of Uttarakhand/respondents.

(2.) THIS writ petition has been filed by the petitioner claiming appointment un­der the U.P. Recruitment of Dependants of Government Servants Dying in Har­ness Rules, 1974 (from hereinafter re­ferred to as "Dying in Harness Rules"). The case of the petitioner is that his father, who was a permanent em­ployee of Government of Uttarakhand and was working as a Sweeper in the Department of Medical, Health and Fam­ily Welfare, Bageshwar, died in harness on 29th July, 2008. The deceased Kallu Ram i.e. father of the petitioner had left behind his wife Smt. Munni Devi and the petitioner. Apart from aforesaid two, another son is namely Rohit, who is minor and daughter namely Poonam. Apart from the aforesaid, the eldest son of the deceased namely Anil Kumar is living separately and he is employed. The de­partment, however, vide order dated 6.11.2008 rejected the application for ap­pointment of the petitioner on compas­sionate ground stating that the appoint­ment of the petitioner is not covered un­der Dying in Harness Rules. Aggrieved, the petitioner has filed present writ peti­tion.

(3.) NOW the contention of the State is that since elder brother of the petitioner namely Anil Kumar is a Government em­ployee, therefore, the petitioner cannot be granted appointment on compassion­ate ground under Dying in Harness Rules. This argument of the State Coun­sel is totally misconceived inasmuch as Rule 5 only states that such an appoint­ment shall not be given in case the spouse of the deceased is already em­ployed in the Government service. It is not the case, where the spouse of the deceased was employed in Government service. One who is employed in the Government service is the son of the deceased, who is presently living separately and merely because one of the sons of the deceased is employed, it cannot be a ground of denying the employment to the petitioner. The only restriction is that such son or daughter shall not be given appointment, under the Dying in Harness Rules. Moreover, what further goes in favour of the petitioner is the report of the District Magistrate, Bageshwar dated 8th December, 2008, who had conducted an inquiry on his own level and has found that after the death of the deceased Kallu Ram, his family is living in hardship. The eldest son of the deceased is living separately and is not supporting the family (the one who is employed). As such the son of the deceased should be given an appointment on compassionate ground under Dying in Harness Rules and the appointment of the petitioner was recom­mended. Therefore, it is a case where the family of the deceased is living in hard­ship. It is also an admitted fact that the deceased died during harness. The State has objected the appointment of the pe­titioner on compassionate ground and has relied upon Umesh Kumar Nagpa/Vs. State o/Haryana and others reported in (1994) 4 SCC 138, where the Apex Court has observed as under :