B. L. Yadav, J. - (1.) -
(2.) BY the present writ petition under Article 226 of the Constitution petitioner has prayed for a writ of Mandamus directing the opposite parties 1 to 4 to appoint him in service in place of his father, who died during his employment as a Sub-Inspector of Police posted at Police Station Sadar Bazar Shahjabanpur City. In view of the provisions of U. P. Employment of Dependents of Government Servants Dying in Harness Rules 1974 (for short the Rules), the petitioner claims the benefit that he being the son of the deceased ought to have been given employment and he was preferential dependent as defined under Rule 2 (iii) (ga) whereas the respondent no. 5 Smt. Mithilesh Singh, being the daughter of the deceased has been given the employment. Mr. M. D. Singh Sekhar, learned counsel appearing on behalf of the petitioner urged that the petitioner applied on 20th July, 1981 and his mother made an application on 13th July, 1981 (Annexure 2 to the petition) that her son may be given employment, but the petitioner was not given employment even though he received a letter dated 5th November, 1981 from the Superintendent of Police Shahjahanpur indicating the physical and educational qualification required for the appointment and he fulfilled the requisite educational and physical requirement but he was not given employment. Sri P. C. Srivastava, learned Standing Counsel appearing for the respondents 1 to 5 urged that under the Rules only one member of the family of deceased could be given employment and as respondent no. 5, the daughter of the deceased had also made application for the employment and she was unmarried and unemployed and qualified to be appointed on the date of her application hence in view of Rule 7 of the Rules, relevant authority after enquiry about educational qualifications and physical fitness, appointed her and she is serving on the post since so many years. On the date of application petitioner was aged about 37 years and as such he was over age, therefore his candidature was rejected by order dated 17th July, 1981, whereas respondent no. 5 fulfilled requisite physical and educational qualification and also in respect of age. It was further urged that it would not be just and equitable that a person out of the same family of the deceased who has been given employment being qualified in all respects may be dislodged and the petitioner who has now completed 43 years of age be given employment in her place and substantial justice has been done by appointing respondent no. 5 according to Rules.
(3.) HAVING heard learned counsel for the parties points for consideration are as to whether only one dependent of the deceased can be given employment or more than one under the Rules and whether the employment given to one dependent of the deceased can be cancelled to give employment to other dependent of the deceased. The next question is as to what should be the criterion for selection in such matters. As regards the first point as to whether only one dependent of the deceased can be given employment or more than one, Rule 5 provides that only one dependent of the deceased can be given employment. Dependent has been defined under Rule 2 (iii) (ga) and the wife is at SI. No. 1, son at SI. No. 2, and unmarried daughter at SI. No. 3. In case more than one dependents are claimant for the appointment in place of deceased, suitability has to be decided on the basis of requisite qualification, keeping in view the welfare of the family. Rule 6 (8) prescribed that the age of the person seeking employment must be not less than 18 years and the petitioner appears to have become over age on the date of application. According to Order/Letter dated 17th July, 1981 (Annexure 3 to the counter affidavit) filed by Devi Prasad Shukla on behalf of respondents 1 to 4 (the State of U. P. & Inspector, General Police etc.) it is clear that comparative suitability of the petitioner and the respondent no. 5 was considered by the Superintendent of Police Shahjahanpur considering the age, health and physical fitness, measurements of height etc. the respondent no. 5 was found more suitable for the post. Much stress has been laid by the learned counsel appearing for the petitioner, that the order dated 17th July, 1981 appears to be fabricated as it appears to be antidated but under the circumstances of the case out of the son and daughter, the unmarried daughter has been given employment. Even the mother at one stage wanted that her son should be given appointment, and at the other instance wanted that her daughter should be given appointment, and at the other stage she claims employment for herself. In view of these facts if the employment has been given to the respondent no. 5, the unmarried daughter, it does not appear erroneous to us. In our opinion under the rules only one member of the deceased's family can be given employment.;