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2006 DIGILAW 1378 (ALL)

MUNNA RAM v. STATE OF UTTAR PRADESH

2006-05-16

A.P.SAHI

body2006
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned Counsel for the petitioner, learned Standing Counsel for the Respondent Nos. 1 to 4 and Sri H.K. Yadav for the Respondent No. 5. 2. Affidavits have been exchanged between the parties and, as such, the same is being proceeded with the consent of the parties for final disposal. 3. The petitioner has prayed for quashing of the order dated 5.2.2005 (Annexure-11 to the writ petition) and the order dated 19.2.2005 (Annexure-12 to the writ petition) whereby the Respondent No. 5 has been given the benefit of appointment on compassionate basis after the death of his father Late Bal Kishun Ram and the representation moved by the petitioner objecting to such appointment has been rejected. 4. From the records, it is evident that Late Bal Kishun Ram died on 6.12.2001 in harness. The petitioner is younger to the Respondent No. 5 who is the eldest son of Late Bal Kishun Ram. The Respondent No. 5 moved an application for appointment under the Compassionate Appointment Rules and it appears that he was extended the said benefit by an order of the Superintending Engineer dated 2.9.2003. The petitioner contends that against the application moved by the Respondent No. 5, the petitioner had moved an application on 9.5.2003; a copy of the application moved by the petitioner is Annexure-5 to the writ petition. A perusal of this application indicates that the petitioner had objected to the claim of Respondent No. 5. The Superintending Engineer, however, without considering the claim of the petitioner passed the orders in favour of the Respondent No. 5 whereafter the petitioner appears to have approached the Executive Engineer as well who on 11.9.2003 informed the Superintending Engineer about the said dispute between the two brothers and requested the Superintending Engineer to consider the respective claims and pass appropriate orders. 5. It appears that aggrieved by the action of the respondents by not extending the benefit of compassionate appointment to the petitioner, the petitioner-Munna Ram filed a Writ Petition before this Court being Writ Petition No. 53519 of 2003 which was disposed of on 4.12.2003 directing the Executive Engineer to consider the request of the petitioner and decide the same within 3 months. 6. It appears that no decision was taken as a result whereof a contempt petition was filed. 6. It appears that no decision was taken as a result whereof a contempt petition was filed. Upon the institution of the contempt proceedings, it was brought to the notice of the parties that the representation of the petitioner has been rejected and appointment has been offered to the Respondent No. 5. 7. There upon the present writ petition has been instituted assailing the impugned orders referred to herein above. 8. Learned Counsel for the petitioner Sri K.S. Rathore contends that without deciding the suitability of the petitioner and his claim as a dependent of Late Bal Kishun Ram, the appointment letter had been issued in favour of the Respondent- Jamuna Ram only to save the authorities for their inaction and the proceeding of contempt which had been initiated by him. Learned Counsel for the petitioner has invited the attention of the Court to the order dated 19.2.2005 whereby the claim of the petitioner has been rejected. A perusal of the representation indicates that it is undisputed that the respondent-Jamuna Ram is the eldest son of Late Bal Kishun Ram, who had moved an application within time for his consideration for appointment on compassionate basis. The order further records that the claim of Jamuna Ram had been considered in view of the No Objection tendered by the petitioner in his favour which later on came to be denied by the petitioner that he had not tendered any such application. The order simply records that whatever material was available at the point of time when the claim was being considered, the respondent-Jamuna Ram was found to be a suitable person for extending the benefit of appointment under the dying-in-harness Rules. 9. From a perusal of the impugned order it is clear that no reasons have been recorded while judging the comparative merit of the petitioner with that of the Respondent and gauging their suitability as required under Rule 7 of the Uttar Pradesh Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974. The said Rule is quoted, for convenience, herein below : “7. Procedure when more than one member of the family seeks employment.—If more than one member of the family of the deceased Government servant seeks employment under these rules, the Head Office shall decide about the suitability of the person for giving employment. The said Rule is quoted, for convenience, herein below : “7. Procedure when more than one member of the family seeks employment.—If more than one member of the family of the deceased Government servant seeks employment under these rules, the Head Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interest of the welfare of the entire family particularly the widow and the minor members thereof.” 10. A perusal of the said Rule clearly indicates that when there are more than one family Members seeking employment then the Head of the Office had to decide about the suitability of the person seeking employment. 11. The impugned order nowhere records as to why the petitioner was not found suitable as against the candidature of the Respondent No. 5. The judgment of suitability should have found place by the head of the office when he was proceeding to consider the claim after the direction of this Court. The Court finds that there is total non-consideration and non-compliance of Rule-7 referred to herein above. Even otherwise the contention raised on behalf of the respondents that the petitioner was not the dependent of his father at the time of his death, has not been taken note of. The aforesaid issue as to whether the petitioner was a dependent or not has also not been noticed and, as such, in these circumstances, the contention raised on behalf of the respondents cannot be accepted. The impugned order, therefore, is vulnerable on all scores and is liable to be set aside. 12. Accordingly, the order dated 19.2.2005 and the order dated 5.2.2005 are quashed. The Superintending Engineer shall proceed to consider the respective claims of the petitioner and the Respondent No.5 in accordance with Rule 7 and the observations made herein above and record clear findings in respect of the suitability of the candidature keeping in view the age of the petitioner as compared to that of the Respondent No. 5 as well. 13. In the event the question of suitability is answered in favour of the Respondent No.5 then in that view of the matter the respondent No. 5 and his appointment shall stand saved as under the order dated 5.2.2005. 14. The writ petition is, accordingly, allowed with the directions made herein above. Petition Allowed. ———