JUDGMENT V.C. Mishra, J.
1. Heard Shri R.P. Mishra learned Counsel for the petitioner and Shri A.K. Goel learned Counsel for the respondents. Counter and rejoinder affidavits have been exchanged On the joint request of learned Counsel for the parties this writ petition is being disposed off at the admission stage itself under the Rules of Court.
2. By means of this writ petition the petitioner has prayed for quashing of the impugned order dated 12.10.2000 (annexure-14 to the writ petition) passed by respondent No. 1 rejecting the claim of the petitioner providing appointment on compassionate ground.
3. The facts of the case in brief are that the father of the petitioner who was accountant in PMV Polytechnic, Mathura died on 18.6.1992. Respondent No. 1 offered a job to one of the family members on compassionate ground through a letter-dated 1.7.1992 addressed to the widow of the deceased for a class IV post. In response to the same, son of the deceased Sri Suresh Chandra requested the respondents to appoint him on class III post and he declined to accept the job on class IV post. The respondents could not provide him the job in class III post as he was not found eligible for want of necessary qualification required for the said post. Being aggrieved, Sri Suresh Chandra filed a Civil Misc. Writ Petition No. 25711 of 1993 which is still pending before this Court. Meanwhile, Sri Suresh Chandra secured a job somewhere else. In 1998, the petitioner moved an application before the respondents with a request that she may be provided with a job on compassionate ground in terms of the U.P. (Recruitment of Government Servants) Dying In Harness Rules, 1974 applicable to the respondents-institution. The respondents rejected the request of the petitioner on the ground that the request was made belatedly and beyond 5 years the time fixed in the statutory rule 5. The petitioner being aggrieved filed the present writ petition.
4. Learned Counsel for the petitioner has submitted that these rules have been subsequently amended by Fifth Amendment in the year 1999. Rule 5 as substituted after amendment reads as follows:
(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 purposes, be given a suitable employment in 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) fulfills the educational qualifications prescribed for the post,
(ii) is otherwise qualified for 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 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.
5. This amended rule provides that the application for employment should be made within five years from the date of death of the government servant. However, the proviso to Rule 5 reads that the State Government has power to dispense with or relax the recruitment of the time limit so fixed of five years as it may consider necessary for dealing with the case in hand in a just and equitable manner.
6. Learned Counsel for the petitioner has relied upon the Judgment passed by this Court in the case of Pushpendra Singh v. Regional Manager, U.P. State Road Transport Corporation, Aligarh and Anr. reported in 2000 (1) ESC page-448 (Alld.) and also a decision in the case of Manoj Kumar Saxena v. District Magistrate, Bareilly and Ors. reported in 2000 (2) ESC page-976 (Alld.). It is settled law that the rule of compassionate appointment is an exception to the general mode of appointment which is strictly based on merits on the open invitation of applications compassionate appointment is totally based on humanitarian consideration to provide immediate sustenance and succor to the family of the deceased employee the sole bread winner to enable it to tide over the sudden crises having arisen due to his sudden death. However, it is also settled law that mere death of an employee in harness does not entitle a family to get an employment as if right irrespective of the financial condition of the family of the deceased. The consideration of such appointment is not a vested right having accrued in the family member of the deceased which could be exercised at any time in future. The compassionate appointment cannot be granted after a lapse of reasonable period specifically laid down in the rules. It cannot be claimed and offered whatever be the lapse of time and after the crises is over.
7. In the present case the petitioner's brother son of the deceased to whom the respondents had offered a job to the declined claiming for a post in a higher class. It is not the choice of the incumbent but appointment has to be given on the basis of the eligibility and qualification so possessed by the incumbent for the post. The petitioner's subsequent belated application for being provided with a job with the respondents on compassionate ground in place of her deceased-father on the ground that she could only complete her intermediate examination in the year 1998 was not a valid ground for waiting to seek a job on compassionate ground. The petitioner should have, if the family was facing such grave hardship and was running through extreme difficulty for survival immediately on attaining the age of eligibility for the job should have applied for the job, but no such ground has been raised for moving the application after five years of her father's death.
8. The learned Counsel for the petitioner has submitted that the petitioner is a handicapped person and has yet not been able to procure any job and the brother of the petitioner is not supporting the family.
9. Looking into the facts and circumstances of the case, and in terms of the proviso to the amended Rule-5, the respondent No. 3-Director of Technical Education, U.P. is directed to consider the matter afresh on the representation of the petitioner including a fresh one if so made within one month by the petitioner. The Director may if so required place the matter before the State Government for seeking relaxation under the aforesaid proviso of Rule-5. The representations of the petitioner shall be disposed off expeditiously preferably within a period of three months from the date the fresh representation if any along with the certified copy of this order is presented before the Director-respondent No. 3. The writ petition is accordingly disposed off with no order as to costs.