- (1.) SHISHIR Kumar, J. By means of the present writ petition the petitioner has approached this Court for issuing a writ of mandamus directing the respondents to give appointment under the Dying in Harness Rules.
(2.) THE facts arising out of the present writ petition are that the father of the petitioner Sri Jayanti Prasad was posted in Famnagar Range in District Basti on the post of Forester and he died on 19-7-2001. A copy of the death certificate issued by the Pradhan of the village has been annexed as Annexure 1 to the writ petition. After the death of his father the petitioner being the son of the deceased, moved an application for seeking an appointment under the Dying-in-Harness Rules. But the applications filed by the petitioner, in spite of the repeated reminders were not considered. It was informed to the authorities concerned that Smt. Savitri Devi is the legally wedded wife of Late Sri Jayanti Prasad and no divorce decree has ever been obtained from any Court of law, therefore, she will be treated to be legal wife of the petitioner's father. THEre were no dissolution of marriage according to the Hindu Law but in spite of this fact no appointment letter was issued. Petitioner was informed from the office of the respondent No. 3 that they are intending to issue an appointment letter to one Smt. Raman Pandey, who alleged to be legally wedded wife of the petitioner's father late Sri Jayanti Prasad. THEn the petitioner moved an application before the authorities stating therein that the petitioner's father was married to one Smt. Savitri Devi according to the Hindu rites and she was never divorced and if the petitioner's father has married Smt. Raman Pandey, the said marriage is illegal and void according to the Hindu Law. It appears that on the application filed by the respondents, the Sub-Divisional Officer has passed an order expunging the name of the petitioner and the petitioner's mother from the family register on the ground that she is not living with the petitioner's father since 1981 and, as such, it will be treated to be abandonment of the marriage. A report to this effect has also been given that in the service record that late Jayanti Prasad had nominated Smt. Raman Pandey for the purposes of payment of retiremental and other benefits. When the petitioner came to know regarding the aforesaid fact, the petitioner has filed the present writ petition. The notices have been issued and the counter and rejoinder affidavits have been exchanged. A counter affidavit on behalf of respondent No. 4 has been filed and it has been submitted on behalf of the respondent that as the first wife of Late Sri Jayanti Prasad has left her husband, therefore, it will be treated that she has been divorced and from the record, it is also clear that she is already living with another person as his wife. By order dated 15th April, 2002 an application has been filed by the respondents. The Sub-Divisional Magistrate has passed an order deleting the name of first wife of the petitioner and it has been held to this effect that Smt. Raman Pandey is the legally wedded wife of late Sri Jayanti Prasad. The respondents further submits that in view of the finding recorded by the Sub-Divisional Magistrate now it is established that the respondent No. 4 is the legally wedded wife and Smt. Savitri Devi has got no concern with Sri Jayanti Prasad as Smt. Savitri Devi has abandoned the house of her husband and remarried to another person, therefore, the marriage with Smt. Raman Pandey is treated to be legal and valid and, as such, she is entitled for appointment under the compassionate ground.
(3.) ON the other hand, the Counsel for the petitioner submits that the order dated 15-4-2002 passed by the Sub Divisional Magistrate and the finding recorded cannot be treated to be a binding as the same has been recorded in a summary proceeding. It is well settled that any finding recorded in the summary or mutation proceeding cannot be treated as binding. I have heard learned Counsel for the petitioner and learned Counsel for the respondents and have perused the record.;