Tarun Agarwala - (1.) -Heard Sri A. D. Saunders learned counsel for the petitioner and standing counsel for the respondents.
(2.) THE petitioner's brother Sri Basant Kumar Tewari who was working as an Amin in the department of Minor Irrigation Division at Allahabad and died in harness on 18.5.2005. It has been stated that the petitioner's brother had nominated the petitioner with regard to any benefits arising from his service. It has also come on record that the petitioner received the benefits. Upon the death of the petitioner's brother, the petitioner applied for appointment on compassionate grounds on the ground that the petitioner was totally dependent upon his brother. It transpires that the respondents made an enquiry and found that the petitioner was enrolled as an advocate with the Bar Council of Uttar Pradesh. On this basis, the respondent referred the matter for opinion to the State Government. THE State Government, by an order dated 21.6.2007 held that the petitioner was not a dependent of the deceased since he was an advocate of the High Court. THE petitioner, being aggrieved by the said order, has filed the present writ petition. Rule 2 (c) of Dying-in-Harness Rules defines family as under : "family" shall include the following relations of the deceased Government servant- (i) Wife or husband ; (ii) Sons ; (iii) Unmarried and widowed daughters ; (iv) if the deceased was unmarried Government servant, brother, unmarried sister and widowed mother dependent on the deceased Government servant." Sub-clause (iv) of Clause (c) of Rule 2 states that a brother of the deceased Government servant is eligible for consideration for appointment on compassionate grounds under the dying-in-harness rules provided he is dependent of the deceased. The essential factor to be considered is, whether the petitioner was dependent on his brother or not? The petitioner has been non-suited on the ground that he is an advocate and the State Government has accordingly presumed that because the petitioner is an advocate, he is no longer dependent.
(3.) IN my opinion, this finding is based on presumption. An advocate, enrolled under the Advocates Act with the Bar Council of Uttar Pradesh can still be dependent on another member of the family. It is not necessary that a person becomes independent the moment he is enrolled as an advocate. It is an admitted fact that an advocate has to struggle in the early years of his practice and finds it difficult to make both ends meet. There are instances that a person has been enrolled as an advocate and for years remains a briefless advocate. There could be a situation where a person enrolled as an advocate is trying to survive as an advocate but on account of lack of infrastructure, lack of briefs or for any other factors, is unable to support himself and is consequently dependent on some other person. Therefore, in my opinion, there can be no presumption that a person becomes independent the moment he is enrolled as an advocate. In the present case, the petitioner has come out with a specific case that he was solely dependent on his brother and was also nominated by his brother to receive post retirement dues etc. of his brother. Consequently, this Court is of the opinion that the respondents committed an error in non-suiting the petitioner solely on the ground that he was an advocate enrolled under the Advocates Act. In my opinion, mere enrolment under the Advocates Act is not sufficient to hold that the petitioner was not dependent on the deceased.;