- (1.) Heard Sri Bharat Pratap Singh, the learned Standing Counsel for the State responents as well as Sri Raj Kumar Vaishya, who has appeared for the private respondent. This petition as originally framed principally sought the following reliefs: "1. Issue a writ, order or direction in the nature of mandamus to direct the respondent no.2 i.e. Deputy Director Agriculture Shahjahanpur about appointment of under dying in harness rule and also release all the financial benefit with exgracia in favour of the petitioner. 2. Issue a writ, order or direction in the nature of mandamus to direct the respondent no.2 i.e. Deputy Director Agriculture Shahjahanpur about restrain to release the financial benefit of the deceased Om Prakash in favour of the respondent no.3. Meera Devi." By way of a subsequent amendment the following additional relief has been added: "5. a writ, order or direction in the nature of certiorari quashing the impugned order dated 24.09.2016 (which is already on record in the present writ petition as Annexure No. 4) passed by the Deputy Director of Agriculture, Shahjahanpur." The Court is apprised of the fact that the petitioner here had even before the filing of the present writ petition filed O.S. No. 834 of 2009 before the Civil Judge (Senior Division), Agra in which the following reliefs have been claimed: "a) A decree of declaration that all the plaintiffs no. 1 to 3 own and represent the entire estate of the deceased Dr. Om Prakash and to receive balance salary money, G.P.F., Group Insurance Money, Departmental Financial help providing employment to the plaintiff no.1 in the office of Deputy Director Agriculture as provided under UTTAR PRADESH SEVAKAAL; MAIN MRIT SARKARI SEVAYON KE ASHRITON KI BHARTI NIYMAVALI 1974 and other incidental Government orders. b) A decree of permanent mandatory injunction directing the defendant no.1 to pay all the balance salary money, G.P.F. Group Insurance Money and departmental financial help and other departmental dues which may be found payable to the deceased Dr. Om Praksh to the plaintiffs providing employment to the plaintiff no.1 in place of Dr. Om Prakash deceased employee as provided under UTTAR PRADESH SEVAKAAL; MAIN MRIT SARKARI SEVAYON KE ASHRITON KI BHARTI NIYMAVALI 1974 and the incidental Government order. U.P. Recruitment of DEPENDENTS of Govt Servant Dying in Harness Rules (1974)." The instant writ petition despite the pendency of that suit was entertained and on 17 April 2017, a learned Judge passed an order restraining the second respondent here from releasing retiral and other financial benefits in favour of the third respondent or the petitioner. The dispute itself exists between the petitioner and the third respondent both of whom assert to be the lawfully wedded wife of Om Prakash, the deceased employee who died while serving under the respondent No. 2. The third respondent instituted a writ petition being Writ Petition No. 4668 of 2009 claiming compassionate appointment consequent to the death of Om Prakash. From the material placed before the Court presently it is not clear whether the petitioner here was a party respondent in that writ petition. The aforesaid petition came to be disposed of on 4 August 2009 in the following terms: "In view of the above with the consent of the learned counsel for the parties the writ petition is being finally disposed of without calling for any counter affidavit and without expressing any opinion on the merits of the claim of the petitioner no. 1 for compassionate appointment, with a direction to the respondent no. 3 to consider and decide her application for compassionate appointment (Annexure-2 to the writ petition) pending before him strictly in accordance with law by a speaking and reasoned order as expeditiously as possible preferably within a period of two months from the date of the production of the certified copy of this order before him. The petitioner shall along with the certified copy of this order also file before the respondent no. 3 a self- attested true copy of writ petition complete with all annexures." Since that order is stated to have not been complied with, the third respondent instituted proceedings in contempt. Ultimately, on 23 September 2016 the respondents proceeded to accord a temporary appointment to the third respondent on compassionate grounds. In the present petition it is averred that the deceased employee had deserted the petitioner here constraining her to institute proceedings under Section 125 Cr.P.C. and in terms of the orders passed in those proceedings maintenance was being provided to her. The case set forth is that the deceased employee after abandoning the petitioner here started staying with the third respondent. The petitioner in that backdrop asserts that she was the legally wedded wife of the deceased employee and that consequently the grant of compassionate appointment to the third respondent is illegal. From the material appended along with the writ petition, it also transpires that in the reply which was filed by the deceased employee in proceedings under Section 125 Cr.P.C. the factum of marriage with the petitioner on 8 May 1989 was admitted. The reply states that both had entered into a consensual relationship and the deceased employee was ultimately constrained to marry the petitioner upon her falling into family way. The third respondent thereafter claiming retiral benefits filed another petition being Writ -A No. -60672 of 20161. That petition too appears to have been disposed of on 23 January 2017 without notice to the petitioner here in the following terms: "The petitioner no.1 is claiming to be the wife of Sri Om Prakash "Lucky" who was working under the respondents as Kishan Sahayak and died while still in service on 19.03.2009. It is stated that the terminal dues have not been paid to the petitioners till date. In paragraph 14 of the writ petition, it is stated that another person one Prem Lata is claiming to be the wife of Sri Om Prakash and has filed a suit which has also been dismissed. No particulars have been given in paragraph 14 of the writ petition. No useful purpose would be served by keeping this writ petition pending. The writ petition is, therefore, disposed of with the consent of the learned counsel for the parties with the direction that if the petitioners prefer a fresh representation before the respondent no.3, Deputy Director of Agriculture, Shahjahanpur in respect of their claim for terminal dues within a period of 15 days from today alongwith the certified copy of this order, the respondent no.3 shall consider and decide the same in accordance with law within a further period of four months taking the note of averment in paragraph 14 of the writ petition. It is made clear that the Court has not adjudicated the claim of the petitioners on merits." The State in their Counter Affidavit have taken the following position: "4. That Shri Om Prakash son of Chiddu, Resident of village Kheria Bahadur Garhi, Post Bhojpur Nauri, District Aligarh was temporarily appointed on the post of Kisan Sahayak, in the pay scale of Rs.975-25-1125 EB-30-1660 (at Serial No. 44) vide order dated 15.11.1991 issued by Director of Agriculture, U.P. Lucknow, thereafter, the petitioner given his joining on 13.4.1992 in the office Deputy Director of Agriculture Spreading, Shahjahanpur. It is further submitted that during the service tenure, petitioner died on 19.3.2009. Thereafter, after, the death of Om Prakash, Smt. Prem Lata and Smt. Meera Devi have submitted their claims as his legal widow. Smt. Meera Devi, has annexed successor certificate bearing no. 2126/UP/ALI-1A-4716 Dated 13.11.2013 issued by the office of District Magistrate, Aligarh along with her application, whereas, Smt. Prem Lata has also submitted her claim. Due to aforesaid, dispute, the claim of Smt. Meera Devi and Smt. Prem lata could not be decided at that relevant time because in the service book of Shri Om Prakash, neither the name of his wife is mentioned nor any person is nominated in the service book. Though in the pass book of G.P.F., the name of Smt. Meera Devi was mentioned as his wife but in the relevant page of pass book the neither the signature of the petitioner was available nor the signature of any witnesses was mentioned as well as signature of competent authority was also available. Therefore, it could not treated as nomination paper. In this way, the department had no information about the marriage/divorce of the petitioner. Though vide order dated 11.6.1998 passed by the Learned Family Court, Agra, a fixed amount is being given from the salary of the petitioner to Smt. Prem Lata from the life time of the petitioner. 5. That with regard to the dispute, a Case No. 834 of 2009 Smt. Prem Lata Versus State of U.P. is pending before the Court of Civil Judge, Sr. Division, Agra. It is relevant to mention herein that in compliance of the order dated 4.8.2009 passed in Writ Petition No. 39865 as well in compliance of the order dated 15.12.2003 passed in Contempt Application No. 4685 of 2009, Smt. Meera Devi was temporarily appointed on Class IV post vide order dated 24.9.2016, passed by the then Deputy Director Agriculture. It is further submitted that the Hon'ble Court has passed an order dated 23.1.2017 in Writ Petition No. 60672 of 2016 and a Writ Petition No. 37398 of 2015, as well as present writ petition bearing No. 9778 of 2017, are pending before this Hon'ble Court. It is further submitted that after the counsel for Smt. Prem Lata has informed that he will file a Review Application in writ Petition No. 834 of 2009 and it is possible that the said writ petition is also pending before this Hon'ble Court but department has no information about the said writ petition." From the disclosures made in the Counter Affidavit, it is evident that the State respondents were faced with competing claims insofar as the issue of compassionate appointment and release of retiral benefits is concerned. Despite two competing claims existing on the record the State chose not to accord any consideration to the application as made by the petitioner. The order impugned in the petition refers to the orders passed on the 2009 writ petition as being the cause principally leading to the State appointing the third respondent on compassionate grounds albeit on ad hoc basis. However and as is evident from a reading of the order passed on 4 August 2009, the State was commanded to decide the claim in accordance with law. In case where competing claims are laid, it is the provisions made in Rule 7 of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 19742 which necessarily must be adhered to. Rule 7 reads thus: "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."
(2.) In the absence of any consideration having been accorded and an exercise having been undertaken to evaluate the two competing claims, it is manifest that the State has clearly acted unfairly and arbitrarily. Insofar as the issue of payment of retiral benefits is concerned, the Court notes that neither the name of the petitioner nor that of the third respondent stands recorded in the service book. Even the so called entry as said to be appearing in the G.P.F. Pass Book is not accepted by the State since it is not signed by any competent authority. Consequently, the issue of release of benefits shall have to abide either by the orders that may be passed in the suit instituted by the petitioner or the decision that shall be taken by the second respondent in this regard.
(3.) However, rather than setting aside the order of 24 September 2016 on the strength of which the third respondent appears to have been taken into empoyment and has worked for the last four years, the ends of justice would merit this petition being disposed of on the following terms.;