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2020 DIGILAW 1388 (ALL)

Dhirendra Kumar v. State Of U. P.

2020-11-26

J.J.MUNIR

body2020
JUDGMENT : 1. This writ petition has emerged from a conflict of claims to compassionate appointment between the two sons of the late Mishri Lal, a Government servant, who died in harness. Late Mishri Lal was a chowkidar in the Establishment of the Construction Unit, Uttar Pradesh Jal Nigam, Power House Road, 102/1017, Kasturi Niwas, Mohammadipur, Gorakhpur. The deceased was a permanent employee. Mishri Lal died in harness on 03.05.2014, leaving behind him, his widow Smt. Vidya Devi and four sons, all adults, to wit, Ashok Kumar, Dhirendra Kumar, Brijesh Kumar and Vijay Kumar. The two sons of the late Mishri Lal, who have staked rival claims to compassionate appointment under The Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, for short “the Rules of 1974” are the petitioner, Dhirendra Kumar, on the one hand, and the fifth respondent, Brijesh Kumar, on the other. 2. It is the petitioner’s case that he is the eldest son of the deceased. He applied under the Rules of 1974 on 27.05.2014. It is the petitioner’s case that his mother, Smt. Vidya Devi, tendered an affidavit dated 27.05.2014, indicating her willingness for a compassionate appointment in favour of the petitioner, in place of her deceased husband. A copy of the affidavit dated 27.05.2014, allegedly sworn by Smt. Vidya Devi in the petitioner’s favour, is on record. The petitioner has also averred that while his father was alive, he had executed an unregistered will in the petitioner’s favour, a copy whereof he has annexed as Annexure-4 to the writ petition. The will carries a nomination in favour of the petitioner by the testator, virtually bequeathing to the petitioner a right to compassionate appointment after his decease. 3. The Court has been taken through the contents of the will by the learned counsel for the petitioner. It is the petitioner’s further case that he is a graduate. This Court must remark that in support of this assertion of his, the petitioner has annexed two certificates, which show that he has earned his matriculation and intermediate examination certificates from The U.P. Board of High School and Intermediate Education. There is no copy of a bachelor’s degree of any kind to show that the petitioner is a graduate. The petitioner claims that no action was taken, on his request for compassionate appointment, for a considerable period of time. There is no copy of a bachelor’s degree of any kind to show that the petitioner is a graduate. The petitioner claims that no action was taken, on his request for compassionate appointment, for a considerable period of time. He, therefore, approached higher functionaries of the Uttar Pradesh Jal Nigam on 01.07.2014, complaining of inaction on the part the Jal Nigam authorities. It is asserted that all this inaction compelled the petitioner to institute Writ -A No. 45913 of 2014 before this Court, praying that his claim for compassionate appointment may be dealt with and decided. Writ -A No. 45913 of 2014 was disposed of by this Court, by an order dated 02.09.2014, requiring respondent no. 2 to the petition to decide the petitioner’s claim for compassionate appointment, carried in his representation dated 27.05.2014, within a period of three months from the date of production of a certified copy of that order before the said respondent. It is the petitioner’s case that by the impugned order dated 22.12.2014, his representation has been rejected, and instead, the fifth respondent’s claim to compassionate appointment, on account of their father’s death in harness, has been accepted. This order has been passed by the Superintending Engineer, Construction Unit, U.P. Jal Nigam, Lucknow. 4. Disillusioned by the impugned order dated 22.11.2014, this writ petition has been brought. 5. Notice, pending admission, was issued by this Court to the respondents, vide order dated 25.05.2015. This notice of motion has led to a combined counter affidavit being filed on behalf of respondent nos. 2, 3 and 4, and a separate return, on behalf of the rival and successful claimant for compassionate appointment, respondent no. 5. To both these returns, the petitioner has filed separate rejoinders. 6. Admit. 7. Heard forthwith. 8. Heard Mr. Hare Ram Pandey, learned counsel for the petitioner, Mr. Vimlesh Kumar Rai, learned Standing Counsel appearing on behalf of respondent nos. 2, 3 and 4, and Mr. Rajesh Kumar Dubey, learned counsel appearing for respondent no. 5. 9. This Court has carefully perused the record. The impugned order shows that the respondents had before them, two rival claimants to consider under the Rules. Admittedly, both the claimants, that is to say, the petitioner and the fifth respondent, are sons of the late Mishri Lal. Rajesh Kumar Dubey, learned counsel appearing for respondent no. 5. 9. This Court has carefully perused the record. The impugned order shows that the respondents had before them, two rival claimants to consider under the Rules. Admittedly, both the claimants, that is to say, the petitioner and the fifth respondent, are sons of the late Mishri Lal. There is no quarrel that Mishri Lal was a permanent government servant and his dependents are eligible under the Rules of 1974 to compassionate appointment. The reason, apparently, to accept the fifth respondent’s claim and reject that of the petitioner, is the fact that the deceased’s widow has come out with a clear stand that she never gave a no objection on affidavit in favour of the petitioner’s claim to compassionate appointment. She has dubbed the affidavit of no objection, produced by the petitioner, purporting to be sworn by her, as a forged document. To the contrary, she has furnished an affidavit in favour of the fifth respondent, saying that he may be considered for compassionate appointment under the Rules of 1974, availing the right as a dependent of her deceased husband. The respondents, faced with this kind of a claim, have placed reliance upon the provision to Rule 7 of the Rules of 1974, which is extracted infra : “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 of 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. Rule 7 of the Rules of 1974 provides that in case more than one members of the deceased’s family stake claim for employment under the Rules, the Head of Office shall decide about suitability of the person for employment. It also stipulates that the decision will be one that bears in mind the overall welfare of the entire family, particularly, the widow and the minor dependents. It appears that in this case, not only the widow consented in favour of the fifth respondent’s candidature, but the other two brothers, Ashok Kumar and Vijay Kumar also. It also stipulates that the decision will be one that bears in mind the overall welfare of the entire family, particularly, the widow and the minor dependents. It appears that in this case, not only the widow consented in favour of the fifth respondent’s candidature, but the other two brothers, Ashok Kumar and Vijay Kumar also. The Superintending Engineer, who dealt with the claim, found the fifth respondent not just better qualified, with an M.A. degree, but also found that the petitioner’s claim to being a graduate, unsubstantiated. He had placed on record a certificate of passing the intermediate examination, but nothing to show that he was a graduate. Before this Court also, the petitioner has claimed himself to be a graduate, but has not placed on record the bachelor’s degree to prove the fact. 11. The primal consideration with the respondents, to accept the fifth respondent’s claim, however, is the choice exercised in his favour by the deceased's widow. The choice of the deceased’s widow is very relevant under Rule 7 of the Rules of 1974. There are, particularly, two classes of members of the deceased’s family, whose welfare is more jealously guarded than the others. It is the deceased’s widow and his minor children. There are no minor children here, and therefore, the widow’s welfare assumes importance. Now, the decision about the fact as to which dependent of the deceased would best secure the widow’s interest, can reasonably be expected to be best known to the widow herself. Also, the welfare of the other dependents, generally, is to be borne in mind. The two other dependents, besides the widow, have also exercised their choice in favour of the fifth respondent, and against the petitioner. The impugned order, therefore, appears to have proceeded on reasonable grounds and taking into account, considerations relevant under the Rules of 1974, particularly, Rule 7, which applies to a case of rival claimants. 12. It must be placed on record that before this Court, a counter affidavit, filed on behalf of the fifth respondent, is an affidavit of the deceased’s widow. She has said on oath that the petitioner is a man with criminal antecedents. She has annexed on record, a copy of an F.I.R. registered against the petitioner. She has also annexed on record, a copy of the ration card, from a time when the deceased was head of the family. She has said on oath that the petitioner is a man with criminal antecedents. She has annexed on record, a copy of an F.I.R. registered against the petitioner. She has also annexed on record, a copy of the ration card, from a time when the deceased was head of the family. That ration card does not show the petitioner’s name, whereas, it clearly shows the fifth respondent’s name. The widow appears to be disillusioned with the petitioner. She has called him a hardened criminal, in the counter affidavit filed on behalf of respondent no. 5. 13. This Court does not, at all, intend to say that the petitioner is, in fact, a hardened criminal. The petitioner may be a rascal, a saint, or a man in the mainstream of society. What is relevant is that the deceased’s widow, the petitioner’s mother, does not trust him to take care of the family. It is this fact that is relevant under Rule 7 of the Rules of 1974. The Superintending Engineer, who has passed the impugned order, has, in the opinion of this Court, rightly exercised his powers under the Rules of 1974 to accept the fifth respondent’s claim and reject that of the petitioner. 14. In the result, this petition fails and is dismissed. 15. Costs easy.