Ravi Kant Arya vs State Of U.P. And 3 Others
2023 Latest Caselaw 23141 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:170509
 
Court No. - 35
 
Case :- WRIT - A No. - 10618 of 2023
 
Petitioner :- Ravi Kant Arya
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shiv Poojan Yadav,Satyendra Chandra Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

Heard Sri Satyendra Chandra Tripathi, learned counsel for the petitioner and Sri P.K. Shahi, the learned Addl. Chief Standing Counsel, who appears for Respondents 1 to 3.

The facts of the case as worded in the writ petition are that the fourth respondent, Sarva Hitkari Inter College, Binauli, District Baghpat is an institution recognized under the U.P. Intermediate Education Act, 1921 and the provisions of U.P. Act No.24 of 1971 stand applicable. It is the case of the writ petitioner that his father Ramkishan Singh Arya (since deceased) was working as an Assistant Teacher in the said institution since the year 1973 and he confirmed on 27.09.1974. However, he died in harness on 31.12.2009. In paragraph-6 of the writ petition, it has been averred that the father of the writ petitioner, Ramkishan Singh Arya initially married to one Smt. Rajkali Devi and consequent to her death, he again married to Smt. Nirmala Devi and since she was not blessed with any baby child, thus on her insistence the deceased is alleged to have married to Smt. Kusum Devi, who happens to be the real sister of Nirmala Devi. As per the writ petitioner, Smt. Kusum Devi with the wedlock of the deceased, Ramkishan Singh Arya gave birth to two daughters Km. Shivani and Kumari Komal and the writ petitioner. In paragraph-8 of the writ petition further assertion has been made that in the service-book, the names of Smt. Nirmala Devi and the mother of the writ petitioner Smt. Kusum Devi were entered as nominee and a document to the said effect has been annexed as Annexure-3 at page-30 of the paper-book. According to the writ petitioner, the provisions contained under the U.P. Government Servants Dying in Harness Rules, 1974 purported to be framed under the proviso to Article 309 of the Constitution of India stood applicable in the Intermediate Colleges as in this regard the writ petitioner has filed a notification dated 22.01.2014, Annexure-4 at page-35 of the paper-book. In paragraph-12 of the writ petition, a further averment has been made that Smt. Kusum Devi, who happens to be the mother of the writ petitioner preferred Writ-A No. 63328 of 2011 seeking compassionate appointment. However, on legal advice, the said writ petition was got dismissed as withdrawn on 30.01.2015. According to the writ petitioner, his date of birth is 13.07.1998 and he was just 14 years of age on the date of death of his father being a minor, so he could not at that point of time, apply for the compassionate appointment. However, on attaining the age of majority, he preferred an application seeking compassionate appointment. It is the further case of the writ petitioner that the said application was forwarded by the District Inspector of Schools, Baghpat, third respondent to the Director of Education (Secondary), second respondent, with regard to the grant of relaxation as five years period stood lapsed by virtue of the letter dated 16.11.2016 in pursuance thereof clarifications were also sought and ultimately on 21.08.2017, the second respondent, Director of Education, Secondary in terms of Rule 5 of 1974 Rules transmitted the entire papers to the first respondent, the State Government for taking a decision either to grant relaxation or not. Since according to the writ petitioner, claim of the writ petitioner was being delayed on one count or the other so the writ petitioner further claimed to have preferred Writ-A No.7231 of 2023, wherein this Court on 26.04.2023 directed the learned Standing Counsel to obtain instructions in the matter. Eventually, now, an order has been passed on 19.05.2023 whereby the claim of the writ petitioner for grant of compassionate appointment, coupled with the relaxation has been sought to be negated by the first respondent, State Government.

Questioning the order dated 19.05.2023, passed by the first respondent, the State Government, the writ petitioner has filed the present writ petition.

This Court entertained the writ petition on 10.07.2023 while passing the following orders:-

"Sri Satyendra Chandra Tripathi, learned counsel for the petitioner submits that the order dated 19.04.2023 passed by the first respondent proceeds on misconception of facts and law, particularly, in view of the fact that the writ petitioner was entitled to be accorded benefit of relaxation of five years for grant of compassionate appointment. According to learned counsel for the petitioner, admittedly, the mother of the writ petitioner was the third wife of the deceased, however, no fraud was committed and he being the child of the third wife cannot be said to be an illegitimate child for according for the purposes of according the said benefit. As the writ petitioner's case ought to have been considered on merit, particularly, in view of the fact that he, at any point of time, was not in deep slumber.

Sri Shailendra Singh, learned Standing Counsel on the other hand submits that a specific finding has been recorded in the order impugned that there has been interpolations have been done in the service records and further the writ petitioner's mother was the third wife and no information regarding solemnization of marriage of mother of the writ petitioner was ever apprised to the department in question.

Since the writ petition seeks certiorari of an order, let the learned Standing Counsel file its response within three weeks.

Steps to be taken by both ways within three days.

Put up this case as a fresh case on 26.07.2023.

Since the matter relates to compassionate appointment and this Court is of the firm opinion that the same needs to be decided with most expedition, thus, it is expected that before the next date, response shall be filed while serving an advanced copy of the writ petition upon the learned counsel for the respondents."

Notices were issued as per the order-sheet on 12.07.2023 and there is an office report dated 25.07.2023 to the extent that the service upon the fourth respondent has been confirmed and as per the affidavit of service, the fourth respondent has refused to take notice of the same. In view of the said office report, the service upon the fourth respondent is deemed sufficient. A counter affidavit has been filed by the Addl. Chief Standing Counsel on behalf of Respondents 1, 2 and 3, to which rejoinder affidavit has been filed.

Since now the pleadings have been exchanged between the parties and the learned counsel for the rival parties seeks disposal of the case without filing further affidavit, thus this Court is proceeding to decide the matter at the fresh stage.

The learned counsel for the petitioner while assailing the order dated 19.05.2023, passed by the State Government has sought to argue that the said order cannot be sustained even for a moment, particularly in view of the fact that though the order is stated to be of four pages, but only recital has been given to the stand of the parties, which obviously includes the writ petitioner as well as the official respondent, but in paragraph-6 the entire issue has been summed up without assigning any reason in coming to the conclusion. Elaborating the said submission, the learned counsel for the writ petitioner submits that as per the stand of the respondent, it is explicitly clear that the father of the writ petitioner, Ramkishan Singh Arya (since deceased) has initially married to Smt. Rajkali Devi and thereafter post her demise, he married Nirmala Devi and as Nirmala Devi could not bestow the happiness of a child so on the insistence of Smt. Nirmala Devi, the deceased solemnized marriage with Smt. Kusum Devi, who happens to be the real sister and on the said wedlock the petitioner as well as Km. Shivani and Km. Komal were born.

According to the writ petitioner, might be even assuming without admitting that during the existence of the marriage and life of Smt. Nirmala Devi, the deceased married Smt. Kusum Devi then the marriage can be said to be illegal or void, but the off-springs cannot be said to be illegitimate so as to denude them of the said benefits. He further submits that once it is already on record that no objection certificate has been submitted by the dependents, then of course the matter ought to have been considered in true perspectives as the very aim and object of grant of compassionate appointment is to cope up with the immediate crisis, which also even in fact takes into account the destitution and financial support of the surviving heirs. Argument has also been made on behalf of the writ petitioner that the finding recorded in the order impugned that there has been certain interpolations in the service record by by incorporating the name of Smt. Kusum Devi is concerned, the same is patently misconceived besides being out of context, as the learned counsel for the writ petitioner seeks to rely upon Annexure-RA1 at page-12, which happens to be the document submitted by the deceased himself through the Principal, which was forwarded for incorporating the name of Smt. Kusum Devi along with Smt. Nirmala Devi. It has been further argued that incorrect finding has been record that the writ petitioner is employed in Delhi Metro, as in this regard, the writ petitioner has invited the attention of the Court towards paragraph-29 so as to contend that the writ petitioner is just studying and pursuing the course of Diploma in Physiotherapy in Sessions 2022-23 from Chaudhary Charan Singh Medical Institute and thus he is not employed. According to the learned counsel for the writ petitioner, had the said question been raised specifically from the writ petitioner, he could have amply demonstrated that he was not working in Delhi Metro.

Learned counsel for the petitioner has also invited the attention of this Court towards Annexure-4 at page-19 of the counter affidavit so as to contend that the Manager/ Principal of the fourth respondent institution on his letter dated 29.01.2021 just in one line at page-20 has mentioned that at present the writ petitioner is working in Delhi Metro, but there is no document, whatsoever, to substantiate to same. Thus, the submission is that the order impugned cannot be sustained and the order be set aside, matter be remitted back to the authorities to decide the same afresh. Reliance has also been placed upon the judgment in the case of Mukesh Kumar Vs. Union of India, reported in (2022) 4 SCALE 103 with respect to compassionate appointment, even the child out of the void marriage is also entitled for the same.

Countering the said submission, Sri P.K. Shahi, learned Addl. Chief Standing Counsel on the other hand submits that the order, which is being subject matter of challenge at the instance of the writ petitioner, is perfectly valid and in accordance with law and no fault whatsoever can be attributed in that regard. It is further submitted that it is not a case, wherein on a fine morning an order has been passed, but necessary spade work has already been done, as informations and inputs had been required from the authorities, who are concerned with the matter and after considering each and ever aspect of the matter, the order has been passed. He submits that though he does not dispute the proposition of law that an child born on account of second marriage is also entitled to compassionate appointment, but what is to be determined is the fact as to whether the writ petitioner was born from the wedlock of the deceased and Kusum Devi or not. The submission is that since there is already a finding in the order impugned that interpolations have been done, thus according tho him, the matter needs re-look. On the issue of the employment of the writ petitioner is concerned, he submits that the said finding has been recorded on the basis of the letter of the fourth respondent, however, according to him, the said finding is not sufficient as some more deliberation is to be done in that regard. He thus submits that the matter be remitted back to the first respondent to pass a fresh order.

I have heard learned counsel for the parties and perused the records.

Undisputedly, the deceased was working as an Assistant Teacher, who died in harness on 31.12.2009. It is also not dispute as apparent from the order impugned that Rajkali Devi was first wife of the deceased. Thereafter the second wife was Nirmala Devi. The issue arises with regard to the third wife Smt. Kusum Devi, as she is alleged to have solemnized marriage with the deceased, during the living of Smt. Nirmala Devi. A finding is also there in the impugned order that interpolation has been done by Smt. Kusum Devi while entering the name in the service book also. Further there is also a finding that the writ petitioner is employed in Delhi Metro, though the same is disputed by the writ petitioner. Apart from the same, there is also a finding that no objection certificate from the rest of the dependents (so called) was also not submitted, to which learned counsel for the petitioner has invited the attention of the Court towards the application, which is at page 54 of the paper-book and no objection certificate at 56 and 57 of the paper book. Since in the opinion of the Court, the order impugned does not advert to the said fundamental and core issues in true perspective and the claim of the writ petitioner has been turned down without giving any valid reasons, conversant with actual facts in order to hold the writ petitioner to be disentitled for the same. Thus in the opinion of the Court, the order needs re-look and the order impugned is liable to be set aside.

Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being disposed off on following terms: (a) the order dated 19.05.2023 passed by the Addl. Chief Secretary, Madhyamik Shiksha Anubhag-5, U.P. Shashan is set aside; (b) Matter stands remitted back to Respondent no.1, the State Government to decide the matter afresh; (c) Before deciding the claim of the writ petitioner, the following fundamental and core issues have to be bore in mind:- (i) the issue with regard to the solemization of marriage of the deceased Ramkishan Singh Arya with Smt. Kusum Devi; (ii) the issue with regard to the dependents of the deceased Ramkishan Singh Arya in particular with regard to Smt. Rajkali Devi (first wife), Nirmala Devi (second wife), Smt. Kusum Devi (claimed to be the third wife), Km. Komal and Km. Shivani; (iii) the issue with regard to the allegation that the writ petitioner was employed in Delhi Metro; (iv) entitlement of the writ petitioner for compassionate appointment in relation to the no objections of the other dependents and the legal heirs; (v) the financial needs as well as dependency of the writ petitioner; (vi) the issue with regard to the condonation of delay for consideration of compassionate appointment; (d) any other ancillary or incidental issues connected with the same.

Needless to point out that in absence of any participation by the fourth respondent, though notices have been issued and served upon him and the non-impleadment of the legal heirs of the deceased, thus before proceeding to decide the matter, legal heirs / dependents of the deceased and fourth respondent be put to notice and they be heard.

The entire exercise be undertaken within a period of three months.

With the aforesaid observations the writ petition stands partly allowed.

Order Date :- 24.8.2023

N.S.Rathour