No Restriction On Extending Compassionate Employment To Daughter Of Deceased Employee If Son Already In Govt Employment: Allahabad High Court

The Allahabad High Court has held that the statutory condition for not granting compassionate appointment if the spouse of the deceased employee is already in government employment is only limited to the spouse and cannot be extended to children of the deceased employee.

The Court held that the son being in government employment at the time of the death of his father would be irrelevant since his earning may be utilized for providing for his own family, wife and children.

Rule 5 of the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 provides for compassionate appointment to one member from the family of a deceased government employee. The Rule was amended by U.P. Recruitment of Dependants of Government Servant Dying in Harness (Fifth) Amendment Rules, 1999 to include the condition that the spouse of the deceased government employee should not be in government employment.

Noting the amendment made in Rule 5, Justice Manjive Shukla held

“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.”

Factual Background

Petitioner's father died in service while working as Head Master of the Primary School Manikapur, Block Belghat District Gorakhpur, leaving behind a widow (mother of the petitioner), two unmarried sons and an unmarried daughter. Petitioner is 75% permanently disabled and was completely dependent on the earnings of her father.

Petitioner applied for compassionate appointment. Along with the application, she submitted an affidavit that her elder brother is in a government job but living separately from the family. It was also stated that he had no objection if petitioner is granted compassionate appointment in lieu of the death of their father.

The District Basic Education Officer, Gorakhpur rejected petitioner's application on grounds that the eldest son of the deceased being a government employee, there is no financial stress on the family. Further, it was stated that since the eldest son is in government employment, compassionate appointment of the member of the family is not permissible under U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974.

Counsel for petitioner contended that there was evidence to show that her elder brother was providing for the family. It was argued that a specific exception regarding spouse being in government servant was specifically carved out in the Rules of 1974. However, no such exception was made for the elder son being in government employment as the son may have his own family, for which his earning may be utilized. Accordingly, it was argued that there is no such prohibition in law to prevent the second dependent child from getting compassionate appointment if the first was in government employment.

Counsel for respondent argued that on the date of death of the father, the eldest son was already in government employment, therefore, there was no financial stress on the family. It was argued that the Government order dated 04.09.2000 makes it clear that if any member of the family of the deceased employee is in government job then the family of the deceased government servant shall not be in financial stress. Accordingly, other members of the family cannot claim compassionate appointment.

High Court Verdict

The Court held that the legislature had consciously amended Rule 5 to not include the son as his earnings may be utilized in providing for his own family (wife and children).

The Government order dated 04.09.2000 provides that upon the death of a teacher, 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, it added.

The Court held that in view of the amendment as well as the Government order dated 04.09.2000, petitioner's claim for compassionate appointment cannot be rejected as it has been specifically stated in the affidavit that the brother is in a government job and residing separately from the family (mother and siblings).

The Court held that in absence of any material on record to show that the brother's earnings were enough for sustenance of the family, the order of the District Basic Education Officer, Gorakhpur is not sustainable.

Accordingly, the writ petition was allowed.

Case Title: Kumari Nisha vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 89 [WRIT - A No. - 16068 of 2023]

Case Citation: 2024 LiveLaw (AB) 89

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