Allahabad High Court
Smt. Vandana Mishra vs State Of U.P. Thru ... on 22 December, 2015
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?AFR
Court No. - 10
Case :- SERVICE SINGLE No. - 7176 of 2015
Petitioner :- Smt. Vandana Mishra
Respondent :- State Of U.P. Thru Prin.Secy.Secondary Edu.Deptt.Lko.& Ors.
Counsel for Petitioner :- Khaleeq Ahmad Khan
Counsel for Respondent :- C.S.C.,Anil Kumar Singh Vishen
Hon'ble Rajan Roy,J.
Heard learned counsel for the parties.
The petitioner herein is the wife of deceased Vivek Kumar Mishra who is said to have died in harness barely two and half months of the marriage with petitioner. The opposite parties 4 to 7 are the father, mother and sister of deceased. The opposite parties 4 to 7 had earlier filed a Writ Petition No. 3476 (SS) of 2015 which was decided on 18.06.2015 with a direction to consider the case of petitioner no.4 therein under rule 2(c)(iv) of the U.P. Recruitment of dependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as 'the Rules, 1974') with a further direction to clear the dues in favour of petitioners 1 to 3.
Apparently the said direction appears to have been issued under some misconception as if, the deceased was unmarried whereas on perusal of the record of the said writ petition it is revealed that in paragraphs 8 and 9 of the writ petition it was specifically stated that the deceased had been married with the petitioner herein namely; Smt. Vandana Mishra on 18.06.2016 and within two and half months of the marriage, the the death of her husband happened. Therefore, no benefit can be derived by the opposite parties 4 to 7 in pursuance to the directions contained therein, in view of admitted factual error mentioned therein unless the claim of all the claimant is considered in accordance with the relevant Rules.
The petitioner herein on her part filed another Writ Petition No. 4568 (SS) of 2015 which was decided vide order dated 07.08.2015 with a direction to the concerned opposite party to take appropriate decision on her representation.
In neither of the writ petitions, the rival parties were impleaded, therefore, both the contesting parties did not approach this Court with clean hands and cannot derive benefit of the orders passed in their writ petitions subject to their claim being reconsidered afresh in the light of the relevant Rules. The Rule 5(3) & (4) of the Rules, 1974 read as under:-
"5(3) 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.
"5(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."
The said Rule enjoins upon the appointee to maintain other members of the family of the deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves and on failure to do so, such an appointment is liable to be terminated in accordance with the provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. Who were the persons dependent upon the deceased immediately after his death is a factor to be considered by the concerned authority.
Rule 7 of the aforesaid Rules, 1974 reads as under:-
"Rule-7. 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 the view also the overall interest of the welfare of the entire family, particularly the widow and the minor members thereof."
In view of rule 7 of the Rules, 1974 as there are rival claimants the competent authority shall take a decision in the light of the aforesaid Rules, 1974 within a period of two months from the date a certified copy of the order is submitted before him, based on the application already submitted which has been decided by the impugned order and for this purpose the said application shall stand restored. The question of payment of death-cum-retiral dues shall be dealt with in accordance with the Rules within a period of next three months. Let a fresh decision be taken uninfluenced by the directions or order passed by this Court referred to hereinabove subject of course to their entitlement under the aforesaid provisions.
The writ petition is disposed of in the aforesaid terms.
Order Date :- 22.12.2015
Vijay (Rajan Roy)
