- (1.) A. N. Verma, J. The petitioner through the instant writ petition has assailed the order dated 13-1-2003 passed by the opposite party No. 1 and as contained in Annexure No. 4 to the writ petition, whereby the representation preferred by him for compassionate appointment has been rejected. The facts giving rise to the petition are as follows: One Mullu, son of Jokhe, grand-father of the petitioner was under employment with the opposite parties as a beldar on daily wages with effect from September, 1988 to 19th March, 1999. The appointment was given to him consequent upon the death of his son Kamta, who was also on daily wages and had worked as such with the opposite parties for about 15 years. The petitioner at the time of the death of his father was only a minor. The said Mullu died on 19-3-1999 in-harness. As the father of the petitioner had already pre-deceased his father, the petitioner was totally dependent on his grand- father. He upon the death of his grand-father, made an application before the opposite parties on 3-6- 1999 for compassionate appointment under the provisions of U. P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, (hereinafter to be referred as 'rules' ). The candidature of the petitioner was however rejected by the authorities concerned for compassionate appointment, he approached this Court in Writ Petition No. 735 (S/s) of 2002. The said Writ Petition was disposed of finally vide order dated 25-1-2002 with a direction that the representation made by the petitioner with regard to his appointment under the said rules be considered. Pursuant to the directions given by this Court in the aforesaid writ petition, the candidature of the petitioner was considered and thereafter vide order dated 13-1-2003 the same has been rejected. It is this order rejecting the representation that has been impugned in the instant writ petition as Annexure No. 2.
(2.) I have heard learned Counsel for the petitioner, Sri R. K. Srivastava as well as learned Standing Counsel at some length. The submission of the learned Counsel for the petitioner is that since the father of the petitioner had pre-deceased his father, (i. e. the grandfather) he being dependent upon the deceased grand-father was entitled for compassionate appointment under the said rules. The learned Counsel further submitted that even though the grand-father had not worked for the prescribed period as contemplated under the Government order dated 29-2-1996 which subsequently stood rescinded, still his right of appointment flows out from the provisions of the aforesaid rules. The argument further is that though his grand- father was a daily wager, still his case is covered under the provisions of the rules inasmuch as that even a dependent of a daily wager is entitled for a compassionate appointment. In para 15 of the writ petition it has been stated that one Gambheera, S/o Sri Chand Deo was given a compassionate appointment under the rules consequent upon the death of his father who was also working as a daily wager as a boatman/chaukidar and died in-harness. The reply of the said para has been given in para 15 of the counter-affidavit-wherein it has been stated that petitioner cannot claim equality or parity with the person mentioned in para under reply. In support of his case the petitioner relied upon a Division Bench decision of this Court in State of U. P. & Ors. v. Rajendra Kumar & Ors. , 1999 (83) FLR 523, wherein it was held that even a grandson is entitled for compassionate appointment under the aforesaid rules. The learned Standing Counsel in opposition submitted that though the circular dated 29-2-1996 which provided for appointment of dependent of daily wager who had put in ten years of service as such as muster roll employee, stood rescinded and became inoperative in September, 2000, the grand-father of the petitioner had not even completed ten years of service which was minimum requirement in the said circular, therefore, the petitioner is not entitled for any relief under the rules and therefore, his representation for compassionate appointment has rightly been rejected. He further argued that since a grand-son is not included in the word 'family' as defined under the Rule 2 (c) of the rules, therefore, the petitioner is not entitled for any benefit under the rules and as such his case has rightly been rejected for appointment.
(3.) THE definition of word 'family' as occurs in Rule 2 (c) of the rules is reproduced here in under: "2. Definitions: (a ). . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . (c) "family" shall include the following relations of the deceased Government servant: (i) Wife or husband; (ii) Sons; (iii) Unmarried and widowed daughters. " In case of State of U. P. & Ors. v. Rajendra Kumar & Ors. (supra), the Division Bench relying upon the decisions of Apex Court as well as principle laid down in some English decisions interpreted the word 'include' as occurring in Rule 2 (c) of the rules. In paragraph 5 of the said report the bench observed as follows: " (5) The learned Single Judge agreed with this submission and we also agree with the same. The word `include' connotes that the persons mentioned in Rule 2 (c) are not exhaustive of the meaning of the word family but are only inclusive. This implies that the word `family' is not limited to the persons mentioned in Rule 2 (c), but more persons can also be included in the definition of the word family' in certain respects. ";