JUDGMENT R.K. Dash, J.
1. I must first express my displeasure of the way the District Judge, Unnao, has dealt with the case and despite the Court's observation/direction, rejected the petitioner's application for appointment in a Class-IV post on compassionate ground.
2. The short facts giving rise to the present writ petition may briefly be stated thus : "Shiv Prasad while working a 'Pradhan Pratilipik' in the Office of the District Judge, Unnao died of heart attack on 18.6.1994 leaving behind his wife, five daughters and only son, the petitioner herein. The petitioner was then a minor and prosecuting his studies. After he became major, he moved an application on 28.4.1999 to provide employment on compassionate ground. In the supplementary-affidavit he has asserted that besides a small house, he does not own and possess any other immovable property and the family pension is the only source for sustenance of the family consisting of him, his mother and two unmarried sisters. The District Judge was expected to take a decision on his application without any delay, but he did not. So the petitioner moved the Court by filing Writ Petition No. 6331 (SS) of 1999 and it was only thereafter that he, by his order dated 21.1.2000, rejected application mainly relying upon a circular of this Court dated 3rd October, 1994, coupled with the decision of the Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC 138. Upon hearing the counsel for the parties, a Bench of this Court by judgment and order dated 5.9.2001 quashed the order of the District Judge dated 21.1.2000 and directed to reconsider the matter in accordance with the provisions of the Dying-in-Harness Rules. The petitioner served the copy of the aforesaid judgment and order upon the District Judge on 15.9.2001 whereafter he, by the impugned order dated 9.11.2001, again rejected the petitioner's application without taking into account the Court's observation and direction contained in the aforesaid judgment. So finding no other alternative, he has approached this Court seeking necessary relief as aforesaid. "
3. The District Judge, respondent No. 1 on being noticed has filed his return contending, inter alia, that there is no need of giving appointment to the petitioner on the post of Class-IV because of the reason that nine Courts in the District of Unnao are lying vacant for which ten Class IV employees who were newly appointed have been ceased to work. He has further pleaded that the circular of the Court and the judicial pronouncement of the, Supreme Court reference of which he made in his order restrained him from giving compassionate appointment to the petitioner.
4. The Court while issuing notice directed respondent No. 1 to indicate in the counter-affidavit as to if any Class-IV post is lying vacant in the judgeship. In response to the notice, he filed counter-affidavit, but he avoided to answer the said question for which he was summoned to appear in person and apprise the Court about the availability of any Class-IV post. In response to the said order, respondent No. 1 appeared and filed another short counter-affidavit stating that on account of removal of one Class-IV employee on his conviction in a criminal case, one post has fallen vacant. Learned counsel appearing for the petitioner in course of argument took me through the judgment rendered by this Court in Writ Petition No. 6331 (SS) of 1999 and urged that in view of the findings and conclusion, nothing was left for the respondent No. I to be considered except giving appointment to the petitioner on compassionate ground. He further contended that rejection of the petitioner's application for compassionate employment amounts to sitting upon the judgment of this Court rendered in the aforesaid case. In that view of the matter and there being no dispute that the petitioner, his mother and unmarried sisters did not have any other source of livelihood, the writ petition should be allowed and by applying Dying-in-Harness Rules as framed by the State, the petitioner should be given employment in a Class-IV post to save the family from destitution.
5. On the other hand, learned counsel appearing for respondent No. 1 would urge that circular letter No. 93/Ve-4/Admn. (D), dated 3rd October, 1994 of the High Court was a hurdle for the respondent No. 1 to accept the petitioner's prayer and by such rejection it may not be construed that he acted contrary to the decision given in Writ Petition No. 6331 (SS) of 1999.
6. In course of argument, it was contended by the counsel appearing for the petitioner that upon sudden demise of the petitioner's father, the sole bread winner, the members of the family are living in penury since because they do not possess any agricultural land nor have they any other source of livelihood. The petitioner being the minor at the relevant time was not eligible to move respondent No. 1 to provide him employment and it was only after he became major, he made an application which was ultimately rejected on the ground of delay. This factual position has not been controverted by the counsel appearing for the respondent No. 1.
In such view of the matter, the sole question that hinges for consideration is whether on the ground of delay in making application, the petitioner should be denied of employment on compassionate ground. In the earlier writ petition which the Court disposed of after hearing the parties at length dealt with the question of limitation raised on behalf of respondent No. 1, reliance was placed on the decision of Supreme Court in the case of Umesh Kumar Nagpal v.
State of Haryana, 1994 (4) SCC 138 and the circular of the Court communicated to subordinate courts with a direction to follow the said decision. To counter the submission made on behalf of respondent No. 1 and to overcome the law of delay in making application for compassionate appointment, the petitioner relied upon Rule 5 of Dying-
in-Harness Rules framed by the State Government providing a period of five years for making such application.
7. Having discussed in threadbare the decision in Umesh Kumar Nagpal (supra), and the Rules framed by the State Government, the Court observed thus :
"..........................Rule 5 is applicable to all the cases. It says that in case a Government servant dies in harness after commencement of Rules, 1974, the employment can be claimed by the dependent of the Government servant. In the instant case, petitioner's father died in the year 1994 and the application was moved within five years from the date of death of the father of the petitioner. His application was well within time in view of Rule 5 (i) (3) of Dying-
in-Harness Rules, 1974 and the application of the petitioner could not have been rejected on the ground mentioned in the impugned order,..................."
8. Having so observed, the Court directed respondent No. 1 to reconsider the matter of appointment of the petitioner in accordance with the provisions contained in the Dying-in-Harness Rules. So once the Court held that the application of the petitioner was within time in view of Rule 5 of the Dying-in-Harness Rules. 1974, what respondent No. 1 would have considered was whether the petitioner and his family member have any other source of livelihood in order to deny him compassionate appointment.
9. To repeat with Rule 5 of the Dying-in-Harness Rules, 1974, provides a period of five years for making application for compassionate appointment from the date of death of a Government servant. Even after expiry of the said period, an application can be entertained in view of the proviso to Sub-rule (i) of the said rules which provided, inter alia, that the Government can' relax the requirement or dispense with period of five years in making the application under given circumstances. As would appear from the judgment of Umesh Kumar Nagpal (supra), there being no Rules framed by the State of Haryana providing any limitation for making application seeking appointment by a dependent of deceased employee on compassionate ground and the object for giving compassionate appointment being to mitigate the hardship due to death of the bread earner of the family, the Court observed that such employment cannot be granted after lapse of reasonable period. The aforesaid decision has no application to the case in hand since as stated earlier, the Dying-in-Harness Rules, 1974, specifically provides period of limitation of five years for making application for compassionate employment by the dependent of the deceased Government employee.
When the aforesaid Rules prescribe limitation and within that period, the petitioner made application, no exception could have been taken by respondent No. 1 for the delayed application by the petitioner. If the decision rendered in Umesh Kumar Nagpal (supra), is applied, then the Rule 5 of the aforesaid Rules referred to above would become otiose. The petitioner's application being in time as observed by this Court in earlier Judgment and undisputed factual position being that petitioner and his other family members do not have any other source of livelihood and keeping in mind the object of giving compassionate employment. 1 am of the considered opinion that petitioner deserves to be given such employment in order to rid the family of the distress.
10. In the result, the writ petition is allowed. Respondent No. 1 is directed to appoint the petitioner in Class-IV post lying vacant in the judgeship within a period of four weeks hence.
11. In the circumstances, there shall be no order as to costs.