Sabhajeet Yadav, J. - (1.) BY this petition, the petitioner has challenged the letter/communication of Executive Engineer, Irrigation Department, Obra Dam Khand, Obra, Sonebhadra dated 23.2.2008 wherein it is stated that the compassionate appointment of petitioner would be considered after the decision in Original Suit No. 631 of 2004 instituted by Sri Mohan Prasad son of Jaipati in the court of Civil Judge (Junior Division), Deoria. The aforesaid letter was communicated to the petitioner in pursuance of direction given by this Court in Writ Petition No. 58491 of 2007 decided on 28.1.2007, earlier filed by petitioner.
(2.) THE brief facts of the case are that one Sri Triveni Prasad, who was a permanent class IV employee in the office of Executive Engineer, Irrigation Department, Obra Dam, Obra, district Sonebhadra/respondent no.2, died while in service on 4.10.2003. THE petitioner claims to be adopted son and dependent of said Triveni Prasad thus moved an application in the office of respondent no.2 for his appointment on compassionate ground against class IV post on 13.1.2004. Since no action was taken by the respondent no.2 for appointment of petitioner in spite of several representations and reminders, he filed writ petition referred herein before and while deciding said writ petition vide order dated 28.11.2007 this Court has directed the respondent no.2 to decide the claim of compassionate appointment of petitioner within a period of three months. In pursuance thereof vide impugned order/letter dated 23.2.2008 the respondent no.2 while deciding the representation of the petitioner has deferred the consideration of claim of compassionate appointment of petitioner and declined to appoint him at the moment on account of pendency of Suit No. 631 of 2004 in the court of Civil Judge (Junior Division), Deoria instituted by Sri Mohan Prasad son of Jaipati @ Jairasi Prasad respondent no.3, hence this petition. It is stated in writ petition that Late Triveni Prasad adopted the petitioner as his son during the life time of his wife when the petitioner was only two years of age. The adoption was made according to rites and after adoption, the petitioner has started living with his adoptive father and mother. The adoption deed was also got regisrered by Triveni Prasad, adoptive father of the petitioner which is on record as Annexure-2 of the writ petition. It is also stated that the wife of Triveni Prasad i.e. adoptive mother of petitioner had died earlier, therefore, the petitioner was only heir and legal representative of his adoptive father Triveni Prasad. Thus in his service book, he had also recorded the name of petitioner for the purpose of benefit of death-cum-retirement gratuity as well as for family pension. A copy of relevant extract of service book of Late Triveni Prasad is on record as Annexure-3 of the writ petition. It is also stated that the adoption of petitioner as son of Triveni Prasad was entered in the school register wherein the name of Triveni Prasad has been shown as father of petitioner. Even in the copy of family register issued by Gram Panchayat Mohan Mundera Vikas Khand, Rampur, district Deoria, which is native place of Triveni Prasad, the petitioner has been shown as adopted son of Late Triveni Prasad. A copy of family register issued by Gram Panchayat Mohan Mundera Vikas Khand, Rampur is on record as Annexure-5 of the writ petition. In para 11 of the writ petition, it is stated that respondent no.3 Mohan Prasad has no concerned with Late Triveni Prasad as he does not come within the purview of family of Triveni Prasad as defined under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. Even in suit instituted by respondent no.3 he has shown himself as son of Jaipati and not as son of Late Triveni Prasad. True copy of the plaint of suit no. 631 of 2004 instituted by Mohan Prasad in Civil Court, Deoria is on record as Annexure-8 of the writ petition. It is further stated in para 12 of the writ petition that respondent no.2 in his written statement filed in Suit No. 631 of 2004 on his own behalf as well as on behalf of State of U.P. has specifically stated in para 17 and 18 of the said written statement that the respondent no.3 cannot be given appointment on compassionate ground as he is not son of Late Triveni Prasad and does not fall within the definition of family of deceased Government servant. In this view of the matter he could not decline to accept the claim of compassionate appointment of petitioner, who is only son (adopted by Late Triveni Prasad) and his name has already been mentioned by Late Triveni Prasad in his service book as well as in the documents for gratuity and family pension as adopted son of Triveni Prasad. A copy of written statement filed by respondent no.2 in Suite No. 631 of 2004 filed by respondent no.3 Sri Mohan Prasad is on record as Annexure-9 of the writ petition. In para 15 of the writ petition, it is specifically stated that the sole case of respondent no.3 is that he is legal representative and heir of deceased Triveni Prasad. A legal representative/heir of a deceased person, if he died issueless, cannot be given appointment under dying in harness rules unless such legal heir and representative comes within the definition of family defined under said rule and further unless he is found to be dependent upon a deceased Government servant.
(3.) A detailed counter affidavit has been filed on behalf of respondents no.1 and 2 wherein the relevant replies of various paragraphs of the writ petition given in paras 3,4,5,6,7, and 8 are as under:- "3. That in reply to the contents of para 1 of the writ petition it is stated that as for the same dispute and controversy, involved in the present writ petition, the respondent no.3 Mohan Prasad has filed a suit in the court of Civil Judge (Junior Division) Deoria, which is pending for consideration, as such, due to this reason, the claim of the petitioner being the legal heir of late Triveni Prasad is pending. Hence, due to pendency of the matter for declaration of legal heir of deceased Triveni Prasad in the court of Civil Judge (Junior Division), Deoria, it is not possible for the answering respondents to dispose of the matter for declaration of heir of deceased Triveni Prasad. 4. That the contents of paras 2,3,4,5 and 6 of the writ petition do not need any specific reply, being matter of record. 5. That in reply to the contents of para 7 of the writ petition it is stated that due to pendency of suit for declaration of legal heir of deceased Triveni Prasad, in the court of Civil Judge (Junior Division), Deoria, no consideration on the petitioner's application for his appointment on compassionate ground, is being possible by the answering respondents. That the contents of para 8 of the writ petition, as stated, need no reply, for want of specific knowledge.;