JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the record.
2. The controversy involved in the aforesaid petition pertains to grant of compassionate appointment. The petitioner has challenged the validity of correctness of the order dated 24.3.2003 issued by Deputy Director General (Establishment), U.P. Police Head Quarters Allahabad, offering compassionate appointment to the petitioner as Constable in Civil Police in the pay scale of Rs. 3,050-4,590. The petitioners claim that he is entitled for compassionate appointment on the post of Sub-Inspector in Civil Police and not as Constable.
3. The father of the petitioner was in service in U.P. Police Department as follower. He expired on 19.7.1986 in harness. The petitioner was minor at that time. After graduating, the petitioner submitted the papers for appointment on compassionate ground under the U.P. (Recruitment of Dependents of Government Servants) Dying in Harness Rules, 1974. The Government granted age relaxation for appointment of the petitioner after inter-departmental correspondence. The inquiry report in respect of the petitioner appears to have been submitted on 31st August, 2002.
4. The petitioner claims that he was eligible for the post of Sub-Inspector (Civil Police). It is submitted that the process for appointment of the petitioner for the post of Sub-Inspector (Civil Police) was completed and approval was also accorded for his appointment to the post of Sub-Inspector (Civil Police) except interview and issuance of appointment letter for the said post. In the meantime it appears that criteria for the appointment of Sub-Inspector (Civil Police) were changed by respondent No. 2.
5. The petitioner was thereafter directed to appear for interview for the post of Constable (Civil Police) in the pay scale of Rs. 3,050-75-3,950-80-4,590 at Police Head Quarter, Allahabad. Aggrieved by the order dated 24.3.2003, whereby he was directed to appear for interview against the post of Constable (Civil Police) this petition has been filed.
6. The contention of the counsel for the petitioner is that before the enforcement of U.P. (Recruitment of Dependants of Government Servants) Dying in Harness Rules, 1974, a Government order dated 21.12.1973, had been issued providing that the dependants of employees who have died in the harness may be appointed as per their qualification. The copy of the Government order has to be appended as (Annexure-10 to the writ petition) and is as under :
^^izs"kd] Jh xqyke gqlSu vk;qDr ,oa lfpo] mkj izns'k 'kklu A lsok esa] leLr foHkkxk/;{k rFkk izeq[k dk;kZy;k/;{k] mkj izns'k] y[ku 21 fnlEcj 1973 fo"k; % ljdkjh deZpkjh ds lsokdky esa eqR;q gks tkus dh voLFkk esa ifjokj ds lnL;ksa dks lsok esa fy;k tkuk A egksn;] eq>s ;g dgus dk funsZ'k gqqvk gS fd fdlh ljdkjh fu;qf [email protected] dh mldh lsok esa jgrs gq;s vdLekr e`R;q gks tkus ds dkj.k mlds ifjokj dh d:.k fLFkfr gks tkrh gS vkSj ifjokj dks ?kksj vkfFkZd ladV dk lkeuk djuk iM+rk gS A orZeku dfBu le; esa ,sls ifjokj dks vU; ksrksa ls dqN lgk;rk fey Hkh tk; rks og Hkj.k&iks"k.k ds fy;s vi;kZIr gksrh gS A nq[kh ifjokj ds lkFk mnkjrk dh uhfr viukuk ekuoh; n`f"Vdks.k ls vko';d gS] vr% 'kklu us ;g fu.kZ; fy;k gS fd ;fn fdlh ljdkjh deZpkjh dh lsok&dky esa e`R;q gks tk;s rks mlds iq= vFkok ifjokj ds fdlh vU; lnL; iq=h] ifr vFkok iRuh dks rqjUr ;Fkk lEHko mlh foHkkx es fdlh ,sls in ij fu;qDr dj fn;k tk;] ftldh og lnL; fu/kkZfjr 'kSf{kd vgZrk j[krk gks ,sls O;f;ksa ds fy, HkrhZ laca/kh fu/kkZfjr izf;k ykxw ugha gksxh rFkk vko';drkuqlkj muds fy;s vk;q lhek Hkh f'kfFkyuh; gksxh A bu fu.kZ;ksa dks fof/kd cy nsus ds fy, ,d lkekU; fu;e&vyx ls izlkfjr fd;k tk;sxk A 2- mi;qZDr vkns'k yksd lsok vk;ksx dh ifjf/k esa vkus okys inksa ij ykxw ugha gksxsa A Hkonh;
xqyke gqlSu vk;qDRk ,oa lfpo A**
7. Rule 5 of Recruitment of Dependents of Government Servants, 1974, Dying in Harness Rules, provides recruitment of a member of the family of the deceased is as under :
"In case a Government servant dies in harness after the commencement of these rules, one member of this 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 which is not with in the purview of the State Public Service Commission in relaxation of the normal recruitment rules, if such person.
(i) Fulfils the educational qualifications prescribed for the post.
(ii) is otherwise qualified for Government service, and
(iii) Makes the application for employment, within five years of the date of 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 recruitment as it may consider necessary for, dealing with the case in a just and equitable manner.
(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."
8. It is urged by the counsel for the petitioner that the word "to be given a suitable employment in Government service" Rule 5 vests the petitioner with a legal right the petitioner with a legal right to get appointment on compassionate ground against the post of Sub-Inspector (Civil Police), as he fulfils the eligibility prescribed for the post and as all the necessary formalities had been completed for his appointment of the petitioner on compassionate grounds, except interview and issuance of appointment letter. It is submitted that calling him for interview for the post of constable was arbitrary and contrary to law, and there are thousands of vacancies for the post of Sub-Inspector Police (Civil Police) lying vacant in U.P. but it is for the first time that a candidate suitable for the post of Sub-Inspector (Civil Police) is being called for facing interview for the post of Constable. It is further submitted that the persons who are eligible to get a better chance in better scale in (Civil Police) cannot be deprived of a better life by offering him the posts of Constable and that the conduct of respondents is, therefore, not in accordance with law.
9. The case of the department is that for considering the cases of compassionate appointment of dependants of the Government servant a committee is constituted on departmental basis under the Chairmanship of the Deputy Inspector General of Police. The case of the deceased family was not considered by the committee as the family had not applied for compassionate appointment within 5 years. The details of the family members of the deceased at the relevant time has been given in para 4 of the counter-affidavit as under :
^^4- ;g fd ;kfpdk ds izLrj 2 o 3 esa of.kZr dFku ds laca/k esa ;g dguk gS fd ;kph ds firk dh e`R;q fnukad 29-7-1986 dks gqbZ rRle; buds ifjokj ds lnL;ksa dh fLFkfr fuEuor Fkh% e la-
vkfJr dk uke e`R;q dh frfFk dks vkfJr dh vk;q e`rd ls laca/k 1-
Jherh pUnzdyh 42 o"kZ iRuh 2-
ljLorh frokjh 25 o"kZ iq=h fookfgr 3-
jkee`frZ frokjh 23 o"kZ iq= fookfgr 4-
tud nqykjh 18 o"kZ iq=h fookfgr 5-
vfuy dqekjh 16 o"kZ iq=h vfookfgr 6-
jkkt'k dqekj frokjh 13 o"kZ iq= vfookfgr 7-
jkds'k dqekj frokjh 6 o"kZ iq= vfookfgr mDr fLFkfr ls Li"V gs fd e`rd vkfJrksa }kjk e`rd vkfJr fu;ekoyh dh Hkkouk ds vuq:i vkfFkZd lgk;rk dk ykHk rRdky ugha fy;k x;k tcfd muds ifjokj esa ekrk th rFkk nks vU; cM+s HkkbZ Hkh Fks A ftudks ysuk pkfg, Fkk ijUrq ;kph ds ifjokj ds lnL;ksa }kjk ,slk u djds vius lcls NksVs iq= dks 'kSf{kd ;ksX;rk c<+kus rFkk Lrj mBkus ds ms'; ls e`rd vkfJr fu;ekoyh 1974 dk ykHk vc ekaxk x;k gS ;kph us tks vfHkys[k izLrqr fd;s muds vuqlkj ;kph dh tUefrfFk 2-10-79 gS rFkk fnukad 2-10-79 dks e`R;q ds 11 o"kZ ckn ckfyx gks jgk gS A rnksijkUr fnukad 3-3-98 dks dkUl ,e ds in ij lsok;ksftr djus dk vuqjks/k izLrqr fd;k rRle; ;kph dh 'kSf{kd ;ksX;rk b.VjehfM;V Fkh vkfJr jkds'k frokjh }kjk izlrqr 'kiFk&i= esa e`R;q ds le;
buds cM+s HkkbZ jkeewfrZ frokjh dh vk;q 23 o"kZ rFkk nwljs HkkbZ dh vk;q 13 o"kZ Fkh rFkk ekrk ,oa cM+s HkkbZ jke ewfrZ frokjh dh vk;q lsok;kstu izkIr djus ;ksX; Fkh rFkk cM+s HkkbZ jkts'k frokjh e`R;q ds 6 o"kZ ckn gh 18 o"kZ dh vk;q iw.kZ dj fy;s Fks vr,o bu vkfJrksa dks vkfFkZd fLFkfr cuk;s j[kus dh n`f"Vdks.k ls ;kph ls igys gh lsok;kstu dk YkkHk izkIr fd;k tk ldrk Fkk e`rd ds vU; vgZ lnL;ksa }kjk lsok;kstu dk YkkHk fdlh in ds fy, izkIr u djus ls Li"V gS fd bl ifjokj dks ukSdjh ds :i esa vkfFkZd lgk;rk izkIr djus dh vko';drk ugha Fkh A**
10. On the basis of these details it is urged that the application for compassionate appointment was not moved according to the spirit of the objects of the rules and even though the mother and two elder brothers of the petitioner who were eligible, did not apply for appointment on compassionate ground within 5 years. Rather the application was made by the petitioner after 11 years when he became major. However, taking a humanitarian approach, a proposal was sent to the State Government to relax the recruitment of the petitioner under Rule 5 of 1974 Rules. Relaxation was accorded by the State Government for appointment on the post of Sub-Inspector (Civil Police), but he was not found eligible as he lacked physical standard/norms of chest required for the post and, therefore, was offered a lower post of Constable. It is also submitted that in order to gain time to overcome his physically in handicap of minimum requirement of chest measurement, the petitioner did not give complete information under 26 point check list and as such further information was required to be submitted by him. The Information was not directly communicated to the competent authority sent through respondent No, 3 in order to gain time, otherwise he would have been appointed on the post of Constable in the year 2000 itself for which he was eligible according to the records.
11. Under Rule 5 the appointment is to be given by the department to the dependant of the deceased who dies in harness, "on a suitable post". The word suitable not only means and includes not only educational qualification, but also encompasses within it the standard of its physical norms for the post required in the department. In the instant case, the application filed by the petitioner was beyond five years period as provided under Rule 5 of Recruitments Rule, 1974, there is no explanation by the petitioner why the other member of the family who were eligible for compassionate appointment at the time of the death of his father. The department made efforts for grant of relaxation for the appointment of the petitioner inspite of the fact that the eligible family members did not apply within time prescribed under the Rules for the appointment on compassionate ground. If the petitioner was not upto mark in physical standard prescribed for the recruitment of Sub-Inspector (Civil Police). No mala fides can be pleaded if he was offered appointment for the post of Constable. However, he was permitted by the Court to Join as Constable vide interim order dated 23.5.2003.
12. For these reasons the petitioner was not eligible for the post of Sub-Inspector and he had rightly been offered appointment, on the post of Constable in the circumstances stated above. The impugned order does not require any interference under Article 226 of the Constitution. This petition is, therefore, dismissed. No order as to cost.