Neutral Citation No. - 2025:AHC-LKO:12617 Court No. - 6 Case :- WRIT - A No. - 2464 of 2025 Petitioner :- Aditya Yadav Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Public Works Lko. And 5 Othher Counsel for Petitioner :- Surya Mani Singh Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J. 1. Heard Sri Surya Mani Singh, learned counsel for the petitioner and the Standing counsel for the respondents. 2. It has been submitted that father of the petitioner, namely late Vivek Yadav was working on the post of Mate at the office of Executive Engineer, Provincial Division, Public Works Department, District Firozabad and passed away during service on 23.1.2013. He was survived by Smt. Kusuma (wife), Km. Shalu (daughter), Km. Shradha (daughter), Vikas Yadav (son) and Aditya Yadav (son)-the petitioner. After the death of his father elder brother of the petitioner Vikas Yadav (son) moved application for compassionate appointment but during consideration of his candidature certain criminal cases were pending against him due to which his case could not be favourably considered for appointment under Dying in Harness Rules, 1974. It is at this stage that the application was moved by mother of the petitioner to opposite party No.6 with prayer to consider and appoint the petitioner on compassionate grounds instead of his elder brother. The said application has been rejected by means of order dated 7.11.2023. 3. The candidature of the petitioner has been rejected only on the ground that the said application has been moved after a period of ten years which is a very long period which cannot be condoned for making any appointment under Dying in Harness Rules, 1974. 4. The only ground urged by learned counsel for the petitioner is that under Rule 5 of Uttar Pradesh Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974, it is only the State Government which has the power to condone delay beyond five years and in case any application is moved beyond the period of five years from the date of death of the government servant then the matter should have been referred to the State Government for consideration rather than it being rejected by the Executive Engineer himself. 5. Learned Standing counsel, on the other hand, has opposed the writ petition but does not dispute the fact that according to Rule 5 of the Rules of 1974 it is only the State Government which is the competent authority for condoning delay in the matter of appointment on compassionate grounds where the application has been made after five years from the date of death of government servant. 6. I have heard the rival contentions and perused the records. 7. The only question which falls for consideration is as to whether opposite party No.6 i.e. Executive Engineer, Provincial Division, Public Works Department, District Firozabad could have rejected the application filed by the petitioner for appointment on the ground of delay of more than five years under Rule 5 of the Rules of 1974 which is quoted herein below as under:- "5. [ Recruitment of a member of the family of the deceased. [Substituted by Notification No. 6/XII-73-Ka-2-99, dated 20th January, 1999, published in the U.P. Gazette, (Extraordinary), Part 4, Section (Ka), dated 20th January, 1999.] (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant 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, one member of his 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 on a post except the post which is within the purview of the Uttar Pradesh 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 from the date of the 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 requirement 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. From the aforesaid, it is clear that it is only the State Government which can condone delay of more than five years and, therefore, in the aforesaid circumstances, opposite party No.6 should have forwarded the application of the petitioner to the State Government for consideration on the aspect of delay. Accordingly, we find that the impugned order rejecting the candidature of the petitioner only on the ground of delay is without jurisdiction and arbitrary. 9. Accordingly, the writ petition is allowed. The order dated 7.11.2023 is set aside. 10. Opposite party No.6 is directed to refer the matter of the petitioner to the State Government for consideration on the question of delay. In case, the State Government is satisfied that the delay in moving the application for compassionate appointment is condonable and there was sufficient reasons which prevented the applicant from moving suitable application then the matter will be considered on merits by opposite party No.6. (Alok Mathur, J.) Order Date :- 3.3.2025 RKM. Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench