Rajesh Upadhyay vs State of U.P. and Others

A.P. Sahi, J.—Heard Sri Y.N. Dubey, learned counsel for the petitioner and Smt. Anita Tripathi, learned counsel for the Respondent No. 4 and learned Standing Counsel for the Respondent Nos. 1, 2 and 3 and perused the record. The petitioner is the elder son of late Yogendra Nath Upadhyay who died in harness. This dispute concerns compassionate appointment as against the post held by Mr. late Yogendra Nath Upadhyay. The respondent No. 4 is the younger son. He Staked his claim on the ground that his father had executed a Will in his favour during his life time that, in the event he dies in harness, his younger son should be extended the benefit under the Dying-in-Harness Rules.

The matter travelled upto the District Inspector of Schools, who has now passed the impugned order on 11th January, 2013 after considering the statement of the mother of the petitioner and also considering the documents on record.

The District Inspector of Schools recorded that the petitioner, according to his mother started living separately during the life time of his father and is also in temporary employment as a Safai Karmchari in the Panchayat Raj Department. Secondly, the District Inspector of Schools has referred to the Will as set up by the Respondent No. 4.

The District Inspector of Schools, having relied on the reasoning that the petitioner was living separately from his father during his life time, has concluded that in accordance with the Rules the Respondent No. 4, whose case was supported by his mother, deserves employment. It is this order which has been assailed by the petitioner contending that a Will cannot confer a right of compassionate appointment. Learned counsel for the petitioner may be right to that extent that the execution of a Will, by an employee during his life time, cannot confer a right of employment under Dying-in-Harness Rules. However, the representation has been disposed of on other relevant considerations, namely, that the petitioner was already employed and secondly he was living separately from his father during his life time itself. The statement of the mother in favour of the respondent No. 4 has also been taken into consideration. In my opinion the consideration is objective and does not suffer from any perversity nor does it violate any Rule.

In the absence of any illegality, no ground is made out for interference under Article 226 of the Constitution of India. The writ petition is dismissed.