Anamika vs State Of Uttarakhand & Others

Lok Pal Singh, J

Petitioner has approached this Court seeking the following reliefs:-

"(i) Issue a writ, order or direction in the nature of mandamus, commanding and directing the respondents to consider the application form of the petitioner for job and give the compassionate appointment to the petitioner as provided in Dying in Harness Rules.

Brief facts, as narrated in the writ petition, are that father of petitioner Late Badri Singh Kandari was Assistant Teacher in State Government School, Dangi Bhardar, District Rudraprayag. He died in harness on 27.01.2017, leaving behind his wife Smt. Bira Devi, elder daughter Km. Renu (fifth respondent) and Km. Anamika (present petitioner). After the death of petitioner's father, petitioner moved an application seeking appointment on compassionate ground. Petitioner's mother and fifth respondent gave No Objection Certificate in favour of the petitioner stating that they have no objection if the petitioner gets appointment under the dying in harness rules. On 11.05.2017, fifth respondent got married with Mr.Mahipal and started living with her husband at her matrimonial house. While the application of the petitioner for appointment on compassionate ground was under consideration, fifth respondent moved an application before the Additional Director, Primary Education, stating that she is the eldest daughter of Late Badri Singh Kandari and has a preferential right to get appointment under the dying in harness rules, instead of the petitioner. She also alleged that No Objection has been obtained by the petitioner from her by suppressing the correct facts. Third respondent issued a letter dated 18.7.2017 to the petitioner and her family members and directed them to appear before him on 19.08.2017 at 11:00 am so that the matter be decided in accordance with Rules as the fifth respondent has raised the objection. Since no decision was taken by respondent in the matter, petitioner approached this Court. It is contended that the petitioner and her mother were dependent on the deceased. However, at the time of death of deceased employee, fifth respondent was also dependent on the deceased employee, but immediately after few months, she got married and now she is dependent on her husband.

Counter affidavit has been filed on behalf of respondent nos.2, 3 and 4 stating that as per legal heir certificate submitted in the department, there are 03 dependents of deceased government servant, namely, Smt. Bira Devi, Km. Renu and Km. Anamika. The legal heirs namely Bira Devi and elder sister Km. Renu of the petitioner submitted a notarized affidavit dated 1.04.2017 stating therein that they are not in government/central/corporation services. They have no objection for giving compassionate appointment to Km.Anamika and no member of the family has been given appointment under dying in harness. The mother of the petitioner vide letter dated 26.7.2011 informed that marriage of the petitioner's sister namely Renu was solemnized on 11.05.2017. Km. Renu submitted an affidavit in the office of the respondent regarding her appointment on compassionate ground on the basis of her name appeared in the Legal Heir Certificate, in which she submitted that her younger sister Km. Anamika (petitioner) by concealment of facts obtained the NO Objection for compassionate appointment. Her name is mentioned in the Legal Heir Certificate and she is entitled to be given compassionate appointment. It is also stated that respondent no.5, elder sister of the petitioner, time and again submitted affidavits and applications for providing her appointment and since more than one member of the deceased Government Servant have claimed compassionate appointment, the decision for providing compassionate appointment has yet to be taken.

Fifth respondent has also filed the counter affidavit stating that the petitioner by concealing true facts of the matter got signed the no objection certificate in her favour. It is also stated that at the time of death of Late Badri Singh Kandari, she was unmarried, hence, she is also entitled for the compassionate appointment under the dying in harness rules. It is also submitted that the respondent is fully qualified to be appointed on compassionate ground.

I have heard learned counsel for the parties and perused the entire material.

Sub-rule (3) of Rule 5 of The U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (for short, Dying in harness Rules, 1974) provides that every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves. Rule 7 of the Dying in harness Rules, 1974 provides that 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.

In the case at hand, a perusal of the pleadings would reveal that the deceased government servant was survived by his three legal heirs viz. his wife Smt. Beera Devi, elder daughter Km. Renu and younger daughter Km. Anamika. No objection certificate was issued by the mother and the fifth respondent in favour of the petitioner regarding her appointment under the dying in harness rules, but now the fifth respondent is disputing the same and, being the elder daughter of deceased government employee, she is seeking appointment on compassionate ground. Admittedly, married daughter is also eligible for appointment on compassionate ground but Rule 7 of the Dying in Harness Rules, specifically provides when more than one member of the family of the deceased government servant seeks appointment, the Head of Office shall decide the suitability of the person for giving employment and shall take decision keeping in view the overall interest of the welfare of the entire family, particularly the widow and the minor members. In the case at hand, fifth respondent is now married. It is not her case that she is not dependent upon her husband or that she is not living at her matrimonial house or that on the date of moving the application she was dependent on the deceased government servant. Only because of the fact that she is elder daughter, she is claiming preferential right on the appointment. Rules do not speak about any preferential right. Smt. Beera Devi, who is the widow of the deceased government servant has given her consent for the petitioner. Petitioner is unmarried and is living with her mother i.e. widow of the deceased government employee. Thus, the overall interest of the welfare of the family of the deceased government servant, is in giving appointment to the petitioner, who is living with her mother and has a responsibility of maintaining herself and her mother after the death of deceased government servant.

In view of the reasons as recorded above, writ petition is allowed. A mandamus is issued to the respondents to consider the case of the petitioner for appointment under the dying in harness rules, ignoring the objections raised by the fifth respondent, within a period of three months from the date of receipt of a certified copy of this order.

No order as to costs.