Sahdev Prasad vs State of U.P.and Others

Y.R. Tripathi, J.

This writ petition has been filed for issuance of a mandamus commanding the opposite parties to give appointment to the petitioner in place of his deceased father under the provisions of the U.I Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974, hereinafter referred to as the Rules of 1974 as also for issuing a direction to the concerned authority to decide the appeal dated 25.4.1991 preferred by the petitioner. The petitioner has further prayed for issuance of a mandamus to the opposite parties to pay the retiral dues of his father at an early date.

The case of the petitioner, shorn of unnecessary details, is that his father Jag Narain was a waterman in the police department. Said Jag Narainj died during his service tenure on 25.12.1980. The petitioner made an application for service under the Rules of 1974, but despite his having furnished necessary details and documents as desired by the opposite parties, he was not given the appointment and was ultimately informed that his brother Kamta Prasad has already been given appointment under the Rules of 1974. The petitioner thereafter made a representation on 25.4.1991 against the communication made to him about his brother Kamta Prasad having been given the appointment under the Rules of 1974, which is still awaiting disposal by the opposite parties.

The opposite parties, in their counter affidavit, have averred that Kamta Prasad, one of the sons of deceased Jag Narain, who was already working on daily wages, has been appointed as follower on compassionate grounds after the death of Jag Narain and now there is no justification for giving employment to the petitioner.

I have heard the learned counsel for the petitioner and the standing counsel and have also gone through the materials on record.

During the course of arguments, it was urged by the learned counsel for the petitioner that Kamta Prasad, the brother of the petitioner, was already working when his father died and that he was not given appointment under the Rules of 1974. It was also urged that despite the direction made by the Court for production of service record of Kamta Prasad, the opposite parties did not produce the same and there is no material on record to show that Kamta Prasad was given the appointment under the Rules of 1974. True that despite the directions made, the opposite parties have not produced the relevant records, but the reason for it is not far to seek. Kamta Prasad was given appointment in 1981, whereas the present writ petition was filed in 1991 i.e. after about ten years. The opposite parties, in paragraph 12 of their counter affidavit, have alleged that the file relating to the appointment of Kamta Prasad, with the lapse of time, has been weeded out. It appears that the petitioner, after learning about the weeding out of the file relating to the appointment of Kamta Prasad, took a somersault and pleaded that the appointment of Kamta Prasad was not made under the Rules of 1974 but he was given the appointment independently of the fact of death of his father. The petitioner, in paragraph 12 of the writ'' petition has himself stated that Kamta Prasad was given appointment as a dependent of his deceased father. A perusal of Annexure4 also shows that according to the petitioner himself, his brother Kamta Prasad was given the appointment on compassionate ground because of the death of his father to which the petitioner was not agreeable. In his aforesaid representation, which the petitioner terms to be an appeal, the petitioner has raised several questions. He has first of all alleged that when there was a dispute between the dependents about the entitlement to the appointment under the Rules of 1974, it was the duty of the opposite parties to have decided such entitlement first and not to straightaway give appointment to Kamta Prasad. It has also been averred in that representation that the appointment of Kamta Prasad on the post of follower was not sufficient to pull the family out of distress as the family also consisted of minors Sant Ram and Km. Ramrati in whose education, marriage and settlement, a lot of expenditure was involved, which could not be met from the meager salary of his brother, who was given the appointment on the post of follower. It appears that on the death of his father, the deceased had made an application for clerical post and in his socalled appeal, he has tried to justify his case of appointment on clerical post carrying better emoluments. It was only after his brother Kamta Prasad was given appointment under the Rules of 1974 that the petitioner felt aggrieved and started questioning his appointment on one or the other grounds. Thus from the own showing of the petitioner, it is borne out that on the death of his father, Kamta Prasad, his brother was given the appointment under the Rules of 1974.

The learned standing counsel raised an alternative argument also that though in this case one of the dependents of the deceased was given employment but even if that would not have been done, the petitioner or any of the dependents of deceased Jag Narain was not entitled to employment under the Rules of 1974 as of right and that the sassistance of said Rules could have been invoked only on showing that the death of Jag Narain had left the family in penury and without any means of livelihood. He also dealt with the object behind framing of the said Rules of 1974 and in support of his arguments placed reliance on the law laid down by the Apex Court in the case of Umesh Kumar Naqpal v. State of Haryana and others, reported in JT 1994 (3) SC 525, wherein it has held that as a rule, appointments in public services should be made strictly on the basis of open invitation of application and merit and the object of carving an exception to the general rule and granting compassionate employment is to enable the family to tide over the sudden crisis. Thus the mere death of an employee in harness does not entitle his family members to claim employment on compassionate ground as a matter of course irrespective of the financial condition of the family of the deceased. The Apex Court has also lamented about certain Governments and public authorities offering compassionate employment as a matter of routine. This Court also in the cases of Bithoori Lal v. State of U.P. and others, reported in 2000(18) LCD 1089 and Rajendra Prasad Mishra v. State of U.P. and others, reported in 1995 (13) LCD 298, has held that job to a member of the family of the deceased can be offered only on the satisfaction that the family would not otherwise be able to meet the crisis. In the case in hand, it is found that one of the members of the family of the deceased has already been given employment and that after a lapse of more than 23 years, the benefit of the said Rules of 1974 cannot either be claimed or extended as it would defeat the very object with which the said Rules of 1974 have been framed. Further, the grant of relief under Article 226 of the Constitution is discretionary and I am afraid, if after such a long lapse of time, the petitioner can be granted the relief sought for by him.

In view of what has been said above, I do not find any merit whatsoever in this writ petition, which is hereby dismissed.

There would be no order as to costs.

(Petition dismissed)