- (1.) 1. This special appeal under Rule 5 Chapter VIII of the High Court Rules has been filed against the judgment and order dated 15-06-2005 passed by the learned Single Judge of this Court in Civil Writ Petition No. 3090/2001 Rajendra Singh Vs. Divisional Forest Officer and others, whereby the learned Single Judge has dismissed the petition.
(2.) A Civil Writ Petition bearing No. 3090/2001 was filed before the learned Single Judge by the petitioner-Rajendra Singh for the following reliefs : (a) Issue a writ, order or direction in the nature of mandamus com manding the respondent nos. 1 -3 to appoint the petitioner in place of his deceased father Khushal Singh as a Tractor Op erator according to the provi sions framed by the Government of U. P. for its servants under Dying in Harness Rules. (b) Issue a writ, order or direction in the nature of mandamus com manding the respondents to make enquiry into the various represen tations made by petitioner's mother Ganeshi Devi for appoint ment of the petitioner i. e. repre sentations dated 16-03-1993,17-04-1993,24-03-1996,05-09-1995 and 26-10- 1999 according to let ter No. 2862/25-3 dated 04-05-2000 and forthwith and appoint the petitioner as per dying in har ness Regulations No. 6-12/ 1973 Niyukti (4) dated 07-10-1974. (c) Issue a writ or direction which this Hon'ble Court may deem fit and proper under the circum stances of the case in favour of the petitioner. (d) Award the costs of this writ pe tition to the petitioner. (e) Issue a writ, order or direction in the nature of certiorari to quash the impugned order passed by the respondent no. 1 letter No. 3000 dated 17-05-2000 in dis missing the office letter No. 2862/25-3 dated 04-05-2000 (Annexure No. 25 dated 17-05-2000) to this writ petitioner. The father of the petitioner late Sri Khushal Singh was working in the Forest Department, Ram Nagar Vriksharopan-Van-Vibhag, Tarai Pashchimi, District Nainital on the post of Tractor Operator. The father of the petitioner died during his service on 18-09-1975 leaving behind his wife Smt. Ganeshi Devi and two sons Pooran Singh and petitioner (appellant) Rajendra Singh. It was further alleged in the petition that the petitioner's date of birth was 10-05-1974 who attained the age of majority on 10-05-1992. Smt. Ganeshi Devi W/o Late Khushal Singh sent a representation dated 16-03-1993 to the Forest Department stating therein that her son be appointed under the Dying-in-Harness Rules, 1974 (hereinaf ter referred as 1974 Rules' ). The repre sentation of the mother of the petitioner was dismissed on 17-05-2000, hence the petitioner filed the writ petition before the learned Single Judge. The counter affidavit was filed by the respondents against the writ pe tition stating therein that the wife of Khushal Singh preferred an application on 16-03-1993 stating that her husband Khushal Singh tractor operator died on 18-09-1975 while he was in service and his son Rajendra Singh, petitioner (ap pellant) may be appointed on compas sionate ground in the department. The said application was rejected on 07-04-1993. Thereafter she again preferred her claim which was again rejected on 07-09- 1993 and 14-03-1996. Inspite of the said rejections, she again preferred an application for the compassionate ap pointment of her son Rajendra Singh, petitioner (appellant) which was again rejected on 27-03-1996 and again on 17-05-2000. It was further pleaded that due to the promotion of Sri Ram Avtar and Kheemanand tractor cleaner to the post of Tractor Operator, two posts of tractor cleaner were vacant and as such the petitioner's elder brother Pooran Singh and on Sri Girish Chandra Pathak who were working as seasonal daily wagers were appointed as tractor cleaner. In fact, the elder brother of the petitioner was a junior in the seasonal daily wagers and because he was enti tled to get the service under the dying in harness rules and as such he was appointed as tractor cleaner. Another person Girish Chandra Pathak was ap pointed as Tractor Cleaner and he was senior most Seasonal Daily Wager and he was entitled to get the appointment on the basis of seniority. It was further al leged that the father of the petitioner died on 18-09-1975 and at that time the Dying in Harness Rules was in enforce ment but after a gap of more than three years the elder brother of the petitioner Sri Pooran Singh who was working as seasonal daily wager in the Forest De partment applied vide letter dated 16- 12-1978 stating therein that he had at tained the age of majority as such he may be appointed under the Dying in Harness Rules and consequently he was appointed as Tractor Cleaner vide Vanadesh No. 34/25-3 dated 05-03-1979. Due to clerical mistake it could not be mentioned in appointment letter of Pooran Singh that his appointment has been made under the Dying-in-Har-ness Rules though his appointment was made on 16-12-1978 immediately after attaining the majority by superseding the other Daily Wagers. It was further al leged in the counter affidavit that the main intention of Dying-in- Harness Rules is only to give relief for the time being to the dependants of the deceased em ployee so that they were not deprived of their livelihood. It was further alleged that the presumption cannot be taken for such family that are deprived of their livelihood for ever even after a long gap. The Government has made an amend ment and fixed the limitation of five years for submitting application by the dependant of the deceased employee for compassionate appointment vide its G. O. No. 6-12/1973 (Niyukti) (A ). It was further contended that Rule 1974 pro vides that the application for the em ployment for the compassionate ap pointment must be filed within five years. It was further contended that admittedly after the death of his father the petitioner had not filed the applica tion within a period of five years from the date of death of the deceased. It was also contended that the writ peti tioner or his mother had not given any application to the Government for seek ing relaxation of the above Rule. It was further contended that admittedly the application was filed after a period of five years. It was further contended that there was no need of compassionate ap pointment as the family of the deceased has survived for a period of 17 years without compassionate appointment. A compassionate appointment is made out of pure humanitarian consideration on account of the fact that unless some source of livelihood is provided the fam ily would not be able to make both ends meet. The whole object of granting such appointment is to enable the family to tide over the sudden crisis. Moreover, the elder son of the deceased Pooran Singh was appointed on 16-12-1978 after at taining the majority by-passing the other Senior Daily Wagers.
(3.) AFTER hearing the parties, the learned Single Judge has dismissed writ petition vide impugned order dated 15-06-2005. It was held by the learned Sin gle Judge that on the date when Khushal Singh died, the petitioner was aged only one year and was not eligible for ap pointment. Therefore, there cannot be any reservation for a vacancy till such time, as the petitioner becomes a ma jor after a number of years. Feeling aggrieved by the said or der, the present special appeal has been preferred by the appellant (petitioner ).;