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Munna Ram v. State Of U.P. Thru' Secretary, P.W.D. And Others - WRIT - A No. 70672 of 2006  RD-AH 7793 (26 April 2007)
Civil Misc. Writ Petition No. 70672 of 2006.
Munna Ram ...........Petitioner
State of U.P. throuhg its Secretary,
Public Works Department, U.P. Govt.,
Lucknow and others ...........Respondents.
Hon'ble Ashok Bhushan, J.
Heard learned counsel for the petitioner, learned standing counsel for respondents No.1 to 4 and Sri P.K. Pandey and Navin Yadav appearing for respondent No.5.
By this writ petition, the petitioner has prayed for quashing the order dated 4th December, 2006 passed by Superintending Engineer allowing the claim of respondent No.5 for compassionate appointment in preference to the petitioner, the younger brother, on account of death of late Bal Kishun Ram working as Beldar in P.W.D.
Sri Navin Yadav, at the very outset, has submitted that on account of death of father of respondent No.5 and the petitioner, the claim of compassionate appointment was claimed by respondent No.5, which has been upheld by the impugned order. He submits that mother of the petitioner being already dead and appointment of respondent No.5 on compassionate ground having been upheld, the respondent No.5 is ready and willing to forego the monetary claim consequent to death of his father and the monetary claim to which respondent No.5 is entitled should be paid to the petitioner. He submits that said offer is being made to adjust the equities between two brothers.
Brief facts of the case for deciding the controversy are; Bal Kishun Ram, a Class-IV employee, working in P.W.D. died on 6th December, 2001 leaving respondent No.5 as elder son and petitioner as younger son. After the death respondent No.5 submitted an application claiming compassionate appointment. The Executive Engineer passed an order dated 5th February, 2005 giving appointment to respondent No.5. The grant of said appointment to respondent No.5 was challenged by the petitioner in this Court by filing Writ Petition No. 46703 of 2005. The writ petition after hearing both the parties was allowed with certain directions. The Court took the view that while considering the claim of both the parties the respondents have not considered the suitability of the person for giving appointment as required by Rule 7 of the Uttar Pradesh Recruitment of Dependent of Government Servant (Dying in Harness) Rules, 1974. Following is the operative portion of the order:-
"Accordingly, the order dated 19.2.2005 are quashed. The Superintending Engineer shall proceed to consider the respective claims of the petitioner and the respondent No.5 in accordance with Rule 7 and the observations made herein above and record clear findings in respect of the suitability of the candidature keeping in view the case of the petitioner as compared to that of respondent No.5 as well.
In the event the question of suitability is answered in favour of the respondent No.5 then in that view of the matter the respondent No.5 and his appointment shall stand saved as under the order dated 5.2.2005."
Subsequent to the order of this Court, the Superintending Engineer considered the claim of the parties and by the impugned order held that respondent No.5 is found suitable for appointment in comparison to the petitioner.
Challenging the order impugned, the learned counsel for the petitioner submitted that respondent No.5 was 50 years of age on account of certificate submitted by the Chief Medical Officer whereas the date of birth of the petitioner is 24.11.1961. He further submits that financial condition of the petitioner is not sound and a first information report was lodged against respondent No.5 in the year 1999.
Admittedly, both petitioner and respondent No.5 being sons of deceased were entitled to be considered for compassionate appointment the daughters of late Bal Kisun Ram having already married and wife having already died in his life time. The appointment offered is on a Class-IV post, i.e., Beldar. The suitability for the appointment as referred to in Rule 7 of 1974 Rules is the suitability, which may be educational qualification, physical fitness or any other relevant material. It is not the case of the parties that respondent No.5 does not fulfil any educational qualification, which is required to be possessed. The work of Beldar being a manual work as contended by the petitioner's counsel himself, no case has been taken that respondent No.5 is not suitable to perform the duties of Beldar. The suitability of a person for offering a job is in the domain of the appointing authority subject to fulfilment of the essential qualifications. The present is not a case where any lack of essential qualification is alleged against respondent No.5. According to own case of the petitioner he was also about 45 years of age in the year 2005 when appointment was offered to respondent No.5 and the respondent No.5 according to certificate of Chief Medical Officer the date of birth of respondent No.5 has been assessed as 18.3.1955.
There being no upper age limit prescribed for appointment under 1974 Rules, it cannot be said that respondent No.5 was not suitable. Moreover, the petitioner also was 45 years of age. The submission remains of the petitioner with regard to a first information report lodged against respondent No.5 in the year 1999. On the basis of the first information report, which was lodged in the year 1999, admittedly criminal case is pending and has not yet been finalised. The effect and consequences of the an offence for which a person is alleged is essentially a matter of consideration by the appointing authority. Merely because first information report was lodged and a case is pending against respondent No.5, it cannot be said that he was not suitable for appointment in facts of the present case. Moreso, the appointing authority has not found respondent No.5 ineligible due to that reason. The appointing authority has preferred respondent No.5 who is elder son of deceased as compared to the petitioner.
The next submission of the counsel for the petitioner is that financial condition of the petitioner is poor and he is in more need of appointment that respondent No.5. The case of respondent No.5 is that he is working as a labour in a brick kiln and his financial condition is also poor. Moreso, the appointing authority has observed that no material was placed by the petitioner that financial condition of respondent No.5 is better than the petitioner.
In facts of the present case, I do not find any error in the order of Superintending Engineer giving appointment to respondent No.5 on compassionate ground. However, in view of the offer made by respondent No.5 that monetary benefit to which respondent No.5 may be entitled on account of death of Bal Kisun Ram be given to the petitioner, it is provided that the monetary benefit to which respondent No.5 may be entitled on account of death of Bal Kisun Ram be not paid to respondent No.5 and the same be paid to the petitioner as undertaken by respondent No.5 through his counsel.
The writ petition is disposed of with the aforesaid directions.
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