BHANWAR SINGH, J. - (1.) MR . Brajesh Misra is tlie son of an Additional District Judge, namely Shri J.C. Mishra who died in harness. He has sought for a writ in the nature of mandamus commanding the respondents to appoint the petitioner on the post of Officer -on -Special Duty like other legal heirs of the Addltional District Judges who unfortunately met with premature death, As he says, he has been discriminated against other legal heirs of the judicial officers, although he has expressed his gratitude for the appointment which has been offered to him in Lucknow Bench of the Allahabad High Court. However, his contention is that the other legal heirs of the judicial officers who died in harness were given better assignment.
(2.) THE facts in brief are as follows: The petitioner's father Shri J.C. Mishra was a member of the U.P. Higher Judicial Service and at the time of his death, he was posted as Additional District and Sessions Judge at Moradabad. Unfortunately, he met with a road accident on 30.7.2000 while going to Moradabad to resume his duty and suffered multiple injuries. Being in critical condition, he was brought to King George Medical College, Lucknow for treatment but since he did not respond, he was taken to Appollo Hospital, New Delhi and from there to All India Institute of Medical Sciences, New Delhi. All efforts to save his life went futile and he succumbed to the fatal injuries, on August 21, 2000 at All India Institute of Medical Sciences. The petitioner is the legal heir of late Mishra, duly nominated by his mother and other members of the family. He holds a post -graduate degree in M.Sc. (Agriculture) with first division, having secured distinction in some papers. He was studying in LL.B. course at the time of the said demise of his father and now he has completed his Law graduation as well. He moved an application to the respondent No. 1 for his appointment on compassionate ground under the U.P. Dying in Harness Rules, 1974. His request was granted on 12.1.2001 and he was appointed as Routine Grade Clerk in the pay -scale of Rs. 3050 -4590 which, according to him, was not as per intendment of the Rules and commensurate to his academic qualification but since his family was in distress and there was financial crisis, he had. no other alternative except to join the service. The petitioner enumerated several instances where the legal heirs of the Additional District and Sessions Judge who died in harness were given higher and better assignment. As stated by him, not even one to his knowledge was appointed as Routine Grade Clerk. Counting such instances, he referred to the case of Smt. Poonam Kaushik, widow of an Additional District Judge. Poonam Kaushik was appointed as Officer -on -Special Duty in the Legal Cell of State Law Office, High Court at Allahabad in the pay -scale of Rs. 8000 -13500. Similarly, Smt. Laxmi Sharma, the widow of an Additional District Judge was appointed as Officer -on -Special Duty in the U.P. Civil Secretariat in the pay -scale of Rs. 8000 -13500. Then one Smt. Durga Verma, widow of late Shri Shell Verma, Additional District Judge was initially appointed as Officer -on -Special Duty in the pay -scale of Rs. 6500 -10500 but on a review, she was appointed in the pay -scale of Rs. 8000 -13500/ - as directed by Allahabad High Court vide order dated 26.3.2003 in Civil Misc. Writ Petition No. 18048 of 2001 Smt. Durga v. State of U.P. and Ors.. Yet in one more case, one Smt. Indu Mathur, the widow of an Additional District judge was directly appointed as Upper Division Assistant in the High Court itself. The petitioner possesses a bright academic qualification with first division throughout in High School, Intermediate, B.Sc. Agriculture, M Sc. Agriculture and LL.B. His grievance is that he has been underestimated and discriminated by giving a step motherly treatment. In fact, he, with better qualification craved for a similar treatment in matters of appointment and service conditions. He moved a representation on 5.8.2003 claiming for parity in the matter of appointment but his representation has not been considered favourably. It was in these circumstances that he was obliged to file this writ petition under Article 226 of the Constitution of India for adequate, efficacious and expeditious remedy. The State Government despite being given adequate opportunities to file counter -affidavit did not perhaps consider it appropriate to file a counter -affidavit and contest this petition. However, on behalf of the High Court, Mr. Pramod Kumar Goel, Joint Registrar (Inspection), filed counter -affidavit and asserted therein that the post of Officer on Special Duty is a Class -II post lying within the category of officers to be recruited under the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976. The Chief Justice has not yet appointed any one of Class -II post under Dying in Harness Rules. Smt. Indu Mathur, the widow of Late D.B. Mathur had been given appointment in the year 1980 and since it is more than two decades now, this old example cannot legally be made any basis for allowing parity to the petitioner. As regards Smt. Durga Verma, widow of late Sheil Verma, it was stated that although she was appointed on the post of Officer on Special Duty, yet she was being paid salary in the lower pay -scale and it was under the said circumstance that her writ petition was allowed on the ground of equality in the posts, the two persons held. It was submitted further that in all the instances of Smt. Indu Mathur, Smt. Durga Verma Smt. Laxrni Sharma and Smt. Poonam Kaushik, the High Court had offered them appointment on the post of Routine Grade Clerk but they did not join on the said post. However, they were later offered appointment on the post of Officer on Special Duty in the Civil Secretariat/State haw Office, High Court Allahabad by the State of Uttar Pradesh and not by the High Court. The petitioner was also offered appointment on the post of Routine Grade Clerk under the Dying in Harness Rules and he accepted this appointment without protest and has been discharging his duty of the said post. Therefore, it is not acceptable that he has been subjected to any hostile discrimination, rather the High Court treated him like others, viz. Smt. Durga Verma, Smt. Laxmi Sharma and Smt. Poonam Kaushik.
(3.) IN his rejoinder affidavit, the petitioner referred to the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 which provide that a Upper Division Assistant may be recruited by direct recruitment. He reiterated his averment that according to the established principle of law enshrined in Articles 14 and 16 of the Constitution of India like snould be treated alike. Merely because the other appointees were ladies, the petitioner being a male should not be discriminated on the ground of sex. The petitioner is entitled to get the same treatment which was extended to Indu Mathur, Durga Verma, Laxmi Sharma and Poonam Kaushik. As the petitioner and his family were in distress and financial crisis following his father's sudden demise, he had no option except to accept the offer regarding his appointment as Routine Grade Clerk but this should not .amount to his acquiescence as it will amount to the foreclosure of his service benefit to which he is legally entitled. It was also stated by him that the post of Officer on Special Duty was not covered under the purview of the Public Service Commission.;