Neutral Citation No. - 2025:AHC:129072 Court No. - 5 Case :- WRIT - A No. - 57711 of 2016 Petitioner :- Arbind Kumar Pandey Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Amarnath Tiwari,Seemant Singh Counsel for Respondent :- Atul Mehra,C.S.C.,Vivek Verma Hon'ble Kshitij Shailendra,J. 1. Heard Sri Amarnath Tiwari, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Sri Atul Mehra, learned counsel for respondent nos. 2 and 3. 2. The petitioner's father was appointed on a Class-IV post in the year 1976 in the respondent Development Authority. After completing 38 years of service in the same class, he died in harness on 24.06.2014. The petitioner moved application dated 11.08.2014, i.e. within a period of two months from the date of death of his father, seeking compassionate appointment in the department. Certain reminders are also said to have been sent to the department by the petitioner and, ultimately, by an order dated 14.10.2016, the petitioner was offered compassionate appointment on Class-IV post. The said order dated 14.10.2016 has been challenged by means of the present writ petition. 3. It is not in dispute that the petitioner did not accept the said offer/letter of appointment for the reason that he was pressing his claim for a higher post, i.e. Class-III post, based upon the educational qualifications possessed by him at that very point of time. 4. Learned counsel for the petitioner submits that since the petitioner fulfilled all the requisite educational qualifications for being appointed on Class-III post, he did not accept the offer of appointment on Class-IV post. 5. Submission is that as per the Government Order dated 17.06.2014 (referred to in second prayer made in the writ petition) as well as the law laid down by this Court in Prakash Agrawal vs. Registrar General, Allahabad High Court and others, Single Service No. 2228 of 2014 decided on 17.04.2014, the directions contained wherein are reproduced in Government Order dated 17.06.2014, the petitioner's claim for compassionate appointment on Class-III post, cannot be denied. 6. Further submissions have been made that The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (in short 'Rules of 1974') have been amended in 2014 and as per the amended rules, the claim for post as per the educational qualifications has to be given due consideration, however, the same has not been considered by the respondents. 7. Per contra, Sri Atul Mehra, learned counsel for the respondent Development Authority submits that compassionate appointments are made by way of an exception to the general rules of appointment and, as per the decision of Full Bench of this Court in Shiv Kumar Dubey and others vs. State of U.P. and others; 2014(2) ADJ 312, no claim for compassionate appointment on a particular class or group of post can be made. It is further urged that once the petitioner did not accept the offer of appointment, there is no good ground to entertain the request of the petitioner for compassionate appointment after a period of 9 years thereafter and, hence, the petition has no substance. 8. Having heard learned counsel for the parties, the Court finds that the educational qualifications of the petitioner at the time when he had moved application for compassionate appointment are not in dispute. Admittedly, the petitioner was having educational qualifications for being appointed on Class-III post. If the respondents offered the petitioner appointment on a Class-IV post, there could be two circumstances; firstly, that the petitioner could have accepted the appointment and, then, raised a claim for a higher post and, secondly, by not accepting the offer of appointment a challenge could be made by him to the appointment offered to him. 9. In the present case, the petitioner has adopted the second mode, i.e. he challenged the offer of appointment on Class-IV post by filing the present writ petition. Therefore, as to whether petitioner's claim for a higher post in Class-III still survives or not, has to be analysed in the light of aforesaid Government Order, judgment of this Court in Prakash Agrawal (supra) as well as decision of the Hon'ble Full Bench of this Court in Shiv Kumar Dubey (supra). 10. Admittedly, the Development Authority has adopted the Rules of 1974 both in its existing form and after its amendment and the said position has not been disputed by Sri Atul Mehra, Advocate. Rules of 1974 provide for "suitable appointment" on compassionate basis. The amended Rule of 2014, as relied upon by the petitioner's side, provides substitution in Rule 5 of Rules of 1974. The substituted Rule 5(1) is quoted hereunder:- "5.(1) Recruitment of a member of the family of the deceased- 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 purpose, 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:" 11. It, therefore, follows that educational qualifications prescribed for the post have been given due consideration by the legislature pursuant to the amendment made. The said aspect cannot be ignored altogether in the facts of the present case and even in the judgment of Full Bench in Shiv Kumar Dubey (supra), though it has been observed that the applicant cannot claim appointment in a particular class/group of posts, at the same time observations and directions have been made by the Hon'ble Full Bench that such appointment to be made in accordance with the administrative scheme or statutory rules taking into consideration financial circumstances of the family of the deceased. 12. The directions issued in para 29 of the Full Bench decision are also clear to the effect that where a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, in the rules. There is no dispute qua that legal proposition that rules, regulations or administrative instructions governing the compassionate appointment have to be given due consideration and cannot be washed away. 13. It is also admitted before this court that no order rejecting the claim of the petitioner for Class-III post has ever been passed. The only order on record is dated 14.10.2016 (impugned in the writ petition) which does not reflect that the petitioner's claim for Class-III post was rejected for one or the other reason. The order impugned is, therefore, silent about the said aspect of the matter and once this Court finds that the amended rules provide for "consideration" of the claim for compassionate appointment based upon educational qualification prescribed for the post and suitability of such appointment was also recognized in rule 5 even before amendment and also after amendment, the statutory mandate cannot be given a go-by. 14. Nevertheless, since claim of the compassionate appointment is always based upon certain other parameters such as penury condition of the family as well as the financial status of the dependents of the deceased employee, the said aspect also needs to gone into while considering the claim for compassionate appointment and merely on the basis of the fact that an incumbent fulfills educational qualifications for a particular post, the same, in itself, cannot be a solitary ground for offering appointment. 15. In view of the above discussion, the writ petition stands disposed of in the following manner:- (a) The petitioner is permitted to file an application along with necessary documents before respondent no. 3 seeking appointment on compassionate ground, within a period of 3 weeks from today. (b) The said application shall be considered strictly in accordance with law as per the existing rules adopted by the Development Authority and after analyzing all parameters including present financial condition of the petitioner's family. (c) The decision shall be taken by the Competent Authority in accordance with law by the end of October, 2025. (d) The mere fact that by order impugned dated 14.10.2016, the petitioner was offered appointment on Class-IV post, which he did not accept by raising a challenge to the same before this Court, would not be a circumstance going against the petitioner and, irrespective of the order dated 14.10.2016, the claim shall be considered and decided in accordance with law by a speaking order and within the time as directed above. Order Date :- 1.8.2025 Pkb/ Digitally signed by :- PRAMOD KUMAR BAJPAI High Court of Judicature at Allahabad