D.K. Seth J.
1. By means of Writ Petition No. 18636 of 1992, Ramesh Singh Chauhan v. Executive Engineer. Rehand Dam and Anr. the petitioner has prayed for issuance of appointment letter to the petitioner and consideration of his representation for appointment on the post, for which he is qualified and in which the Petitioner�s father was working. The Petitioner�s case in short is that the Petitioner�s father, who was working on the post of cleaner, died in an accident on 26.6.1991. On the principle of dying-in-harness policy of the State Government, the petitioner applied on 17.7.1991 and again on 4.9.1991 and 24.1.1992, filed as Annexures 1, 2, 3 to the writ petition, for his appointment.
2. The petitioner had qualified for such appointment under U.P. Government Recruitment of Dependents of Government Servant Dying-in-Harness Rules, 1974. The provision of the said rule being mandatory, the Respondents are bound to appoint the petitioner and the petitioner has by reason of the provisions of the said rule, has acquired legal right for such appointment on account of his being possessed of the requisite qualification.
3. In the counter-affidavit filed in the said Writ Petition No. 18636 of 1992, the Respondent Nos. 1 and 2 had pointed out that two writ petitions have been filed claiming the appointment under the said 1974 Rules. One by the present petitioner and the other being Writ Petition No. 31174 of 1992 by Smt. Raj Kumari Devi. In the circumstances the Respondent No. 2 had no alternative but to direct the said two claimants to obtain succession certificate from the civil court and only thereafter their case could be decided.
4. In the rejoinder-affidavit, the petitioner pointed out that he is not aware of other writ petition filed by Smt. Raj Kumari Devi and claimed that he is the only legitimate child of Sri Ram Lal and is entitled to get the said appointment. From the certified copy of application dated 16.12.1966 made u/s 488 of the Code of Criminal Procedure and the objections filed by the deceased thereto, it was pointed out that mother of the petitioner Smt. Sharda was admittedly, the wife of the deceased, which have been filed as annexure-RA 1 and RA 2 to the rejoinder affidavit. He had produced the Kutumb register filed by the petitioner showing the relation of the deceased. Ram Lal used to pay maintenance to Smt. Sharda Devi by an order dated 15.10.1969, which has been filed as annexure-RA 4 to the rejoinder affidavit. He challenged the order of Respondent No. 2 directing production of succession certificate on the ground that there is no such provision for obtaining such certificate in respect of appointment under 1974 Rules. It was the Respondent No. 2, who has the authority to decide the case and that it is not necessary to approach the civil court. On the basis of such document, the Respondents could not have refused employment to the petitioner under the said Rule.
5. In Writ Petition No. 31174 of 1992, Smt. Raj Kumari Devi v. State of U.P. and Ors. the petitioner claimed to be the wife of the deceased Ram Lal and claimed appointment under the said 1974 Rules. Ramesh Singh Chauhan is the step-son of the Petitioner. He is thirty years of age and is employed elsewhere. Therefore, he is not eligible for the said appointment. Instead of giving such appointment by an order dated 13.5.1992, the Respondent No. 2 asked Smt. Raj Kumari Devi to obtain succession certificate, which is not necessary under Rule 7 of 1974 Rules, the Respondent No. 2 is the appropriate authority for deciding the said dispute. In view of Rule 7 of the Rules, the Respondent No. 2 is bound to consider and dispose of the Petitioner�s application and decide the dispute. It has also been contended that she come within the definition of ''family'' as given in Rule 2(c) of the said Rules. Therefore, the demand of succession certificate is wholly illegal, arbitrary and mala fide.
6. In the counter-affidavit filed on behalf of Respondent Nos. 1 and 2, the same statements as made in the counter-affidavit to the Writ Petition No. 18636 of 1992 have been repeated. Ramesh Singh Chauhan, who has been impleaded as Respondent No. 3 in Writ Petition No. 31174 of 1992, in his counter-affidavit has virtually repeated the statements made in Writ Petition No. 18636 of 1992 and denied the claim of Smt. Raj. Kumari Devi.
7. In the rejoinder-affidavit, Smt. Raj Kumari Devi repeated that Ramesh Singh Chauhan is the step-son of the petitioner and he is thirty years of age. He is living separately and is earning his own livelihood and that the said Ramesh Singh Chauhan inherited Immovable properties of the deceased Ram Lal u/s 171 of the U.P. Zamindarl Abolition and Land Reforms Act.
8. Smt. Raj Kumari Devi, however, has Impleaded Ramesh Singh Chauhan, the petitioner in Writ Petition No. 18636/92 as Respondent No. 3 in her writ petition, whereas Ramesh Singh Chauhan did not implead Smt. Raj. Kumari Devi, as a Respondent in his Writ Petition No. 18636 of 1992.
9. Learned Counsel appearing on behalf of Smt. Raj Kumari Devi, pointed out that in absence of Smt. Raj Kumari Devi as a Respondent, the writ petition preferred by Ramesh Singh Chauhan is not maintainable and is liable to be rejected. In case the said writ petition is rejected, then only the writ petition of Smt. Raj Kumari Devi, remains to be allowed.
10. However, both these writ petitions are being heard together and affidavits have been exchanged. Both the counsel of respective parties have addressed on each other''s cases. Therefore, the non-impleadment of Smt. Raj Kumari Devi in the writ petition filed by Ramesh Singh Chauhan, cannot be a ground for dismissal of the said writ petition. The facts of the case are being inter-linked and Ramesh Singh Chauhan being a party to the writ petition preferred by Smt. Raj Kumari Devi, there is no scope for not considering the case of Ramesh Singh Chauhan as well.
11. In the facts and circumstances of the case, it appears that there is a dispute as to who should get the appointment under 1974 Rules. ''Family'' has been defined to include ''wife'' ''husband, ''son'', ''unmarried widowed daughter". Rule 5 prescribes as follows:
5. Recruitment of a member of the family of the deceased.--In case a Government servant dies-in-harness after the commencement of these rules, 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 which is not within the purview of the State Public Service Commission in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualified for Government service. Such employment should be given without delay and, as far as possible, in the same department in which the deceased Government servant was employed prior to his death.
The above rule provides that in case of a Government servant dying-in-harness on making an application for appointment on a post outside the purview of the State Public Service Commission, relaxation of the normal recruitment rules, may be made for giving such appointment to a member of the family of the deceased, who is not already employed under the Central or State Government or the Corporation, owned or controlled by the Central Government or a State Government, provided he fulfils the educational qualification prescribed for the post and is otherwise qualified for Government service.
12. Rule 8 provides that though written test or interview by a Selection Committee or by any other authority may be dispensed with, but it will be open to the appointing authority to interview the candidates in order to satisfy itself that the candidate will be able to maintain the minimum standards of work and efficiency expected on the post, while Rule 9 provides that before a candidate is appointed, the appointing authority is to be satisfied with the character of a candidate is such as to render him suitable in all respect for employment in Government service. He is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties and that the candidate is not having more than one wife living and in the case of a female, the candidate has not married a person already having a wife living.
13. In the course of argument, it was sought to be submitted by the learned Counsel appearing on behalf of Ramesh Singh that the mother of Ramesh Singh is still alive. But from the writ petition or in the counter-affidavit, such statement does not find any support. Be that as it may, these are the factors to be taken into account and consideration by the appointing authority on the basis of provisions contained in Rules 5, 8 and 9 respectively.
14. The said 1974 Rules provide remedy in case more than one member of the family of the deceased Government servant seeks employment. Rule 7 of 1974 Rules is as under:
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.
15. That according to Rule 7 in case more than one member of the family of the deceased Government servant applied for the benefit of the said Rule, Head of Office is to decide the suitability of the person for giving employment, keeping in view also the overall Interest of the welfare of the entire family particularly, the widow and the minor members thereof.
16. In the present case. Ramesh Singh Chauhan does not admit Smt. Raj Kumari Devi as member of the family, since his mother was alive when Smt. Raj Kumari Devi claimed to be married with the deceased these are the facts which can be agitated before the appointing authority under Rule 7 of the aforesaid rules. Therefore, I refrain from making any observation in respect thereof. The power under Rule 7 of 1974 Rules vests Head of the office with the power to decide whose claim should be allowed taking overall view of the said rules, particularly Rules 5, 7, 8 and 9 of the Rules respectively.
17. In the circumstances, this writ petition is disposed of by directing the Respondent Executive Engineer, Rihand Dam, if he is Head of the office to decide the case of Ramesh Singh and Smt. Raj Kumari Devi within the ambit of Rule 7 read with Rules 5, 8 and 9 within the period of six weeks from the date a certified copy of this order is produced before him by either of the parties in accordance with the rules. In case the Executive Engineer, Rihand Dam, Respondent No. 1 is not Head of the office, in that event he should refer the case to the Head of office within the period of two weeks from the date of production of certified copy of this order before him, and such Head of the Office shall decide the same in the manner indicated above within a period of six weeks from the date of such reference.
18. With the above observation, both these writ petitions are disposed of. There will, however, be no order as to costs.
