All HC | A Posthumous child who was still in his mother’s womb while his father passed away, would he be entitled to compassionate appointment on attaining majority under Rules of 1974? Court explains

Allahabad High Court: J.J. Munir, J., addressed an issue with regard to whether a posthumous child is entitled to compassionate appointment under Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.

Petitioner in the instant application claimed compassionate appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.

Petitioner a posthumous child, who was in his mother’s womb at the time when his father passed away in a road accident. The application with regard to the compassionate appointment was made by petitioners mother in the year 2003.

The above-referred application was dismissed by the State Government in view of the same being preferred with a delay of 11 years, 10 months and 3 days, reckoning the delay after giving the benefit of relaxation of five years provided under the Rules of 1974.

Analysis and Decision

Bench in view of the facts and circumstances stated that:

A perusal of the right, which a member of the family of the deceased to compassionate appointment has been given by Rule 5 of the Rules of 1974, makes it clear that it is a member of his family who is entitled to claim compassionate appointment when the deceased, who is in harness and a Government employee, suddenly passes away.

 Further, the Court added that an unborn child does have rights under the law relating to property because it is said that an unborn child is an en venture sa mere; but, to extend to an unborn child the right to compassionate appointment would be contrary to the plain intendment of the Rules of 1974. Even otherwise, the welfare measure under the said rules, though construed liberally in case of members of the deceased’s family who have not been able to tide over the financial crisis till a minor attains the majority and applies under the rules, in the opinion of this Court, cannot be stretched to a limit where an unborn child is also to be granted a right to apply under the Rules of 1974.

High Court opined that an extension of the welfare approach under the Rules of 1974  to that limit would do more harm than good to the rights of the citizen, who otherwise have a right to consideration for appointment to posts under the State in accordance with the recruitment rules, postulating equality of opportunity but no concession.

Hence, Bench held that a posthumous child does not qualify for a minor and a member of the deceased Government servant’s family under the Rules of 1974, entitling him to be considered for compassionate appointment, once he attains majority.

Therefore, the petition was dismissed in view of the above discussion. [Avanesh Kumar v. State of U.P., 2020 SCC OnLine All 144, decided on 09-01-2020]

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