JUDGMENT A.P. Sahi, J.
1. These two writ petitions are in respect of an engagement on the post of Ward boy in the Primary Health Centre at Amuwari, Narainpur, Azamgarh. on compassionate basis. The petitioner -Akhilesh Tiwari claims himself to be the son of Late Kaushalya Tripathi, who died-in-harness on 19.7.2005. He sought appointment on compassionate basis and was, accordingly, appointed as such. The petitioner's sister Smt. Hem Lata Devi has filed the other writ petition alleging therein that Sri Ahiklesh Tiwari is not the real brother of the petitioner and is rather the son of his uncle who has manipulated documents to obtain the appointment on compassionate basis, Sri Akhilesh Tewari has prayed for quashing of the order dated 1.2.2006 in Writ Petition No. 24728 of 2006 whereby his salary has been withheld and has been restrained from discharging his duties.
2. It is admitted to Sri Hem Lata Devi that she is married but she contends that she has been deserted by her husband and in view of this, it was she, who was entitled for the benefit of compassionate appointment against the post. It is alleged that a divorce decree has also been granted by a competent court and in these circumstances, she was entitled for being considered. It is further alleged that Akhilesh Tiwari succeeded in getting appointment without there being any decision on the representation moved by her.
3. Replying to the aforesaid contentions, learned Counsel for Sri Akhilesh Tiwari contendsjhat the petitioner - Smt. Hem Lata Devi in Writ Petition No. 53990 of 2005 had concealed and had misrepresented facts so as to obtain the interim order and further she failed to disclose the fact that her representation had already been rejected. It is urged that on this conduct, the writ petition filed by Smt. Hem Lata Devi deserves to be dismissed.
4. Having heard learned Counsel for the parties and also having gone through the record, it is evident that both the petitioners had approached this Court and were favoured with a mandamus for the consideration of their claims. Not only this, Sri Raj Kumar Tripathi, the husband of Late Kaushalya Tripathi, also filed a writ petition in this Court for an adjudication of his objection to the claim of Smt. Hem Lata Devi. Even though the entire case is an unfortunate story of a family where the sister is denying her relationship with the brother yet on legal issues, it is clear that Smt. Hern Lata Devi, being the married daughter of the deceased employee, was not entitled to claim appointment on compassionate basis as she does not fall within the definition of the word dependent under the 1974 Rules. Apart from this, this Court has already ruled in the case of Santwana Kumar v. District Inspector of Schools 1998 AWC (NOC) 2.27 that the benefit of a dependent under the dying-in-harness Rules is available to an unmarried daughter and not to a divorced daughter. Even though the degree of divorce does not inspire confidence as it was obtained almost 3 years after the death of the deceased employee yet in view of the law referred to herein above Smt. Hem Lata Devi is not at all entitled for appointment on compassionate basis. It is also clear from the pleadings that Hem Lata Devi was married on the date of death of her mother and that there was no acknowledged divorce existing at that point of time. Thus, either way she was nowhere within the zone of eligibility to claim compassionate appointment.
5. It appears that her claim is founded on an apprehension that in the event Akhilesh Tiwari succeeds in installing himself as the son of Late Kaushalya Tripathi, the same would fleet her succession rights to the estate of Late Smt. Kaushalya Tripathi. It is on record that proceedings for obtaining a succession certificate have already been instituted before the competent court. Sri Rakesh Pandey, learned Counsel for Smt. Hem Lata Devi, has urged that it is on account of the aforesaid apprehension that his client is contesting the claim of Akhilesh Tiwari inasmuch as her contention is that Akhilesh Tiwari is not the son of Kaushalya Tripathi and Raj Kumar and he is the son of his uncle namely Sri Chhavi Nath Tripathi.
6. Be that as it may, learned Counsel for Akhilesh Tiwari, has filed an Affidavit stating therein that in the event a court of competent jurisdiction declares Akhilesh Tiwari to be not the son of Late Kaushalya Tripathi, then in that event, he would refund the entire salary which has been paid to him or is paid in future. The said Affidavit is filed on record.
7. The question, therefore, as to whether Sri Akhilesh Tiwari is the real son of Smt. Kaushalya Tripathi or not is subject to a decision by the competent court which according to Smt. Hem Lata Devi is being agitated. In this view of the matter and in view of the fact that Smt. Hem Lata Devi cannot be granted compassionate appointment as a dependent of the deceased employee, it does not appeal to reason that the case of Akhilesh Tiwari, which has been accepted by the Respondents, deserves any interference by this Court at this stage when his status is yet to be adjudicated on the claim set up by Smt. Hera Lata Devi before the competent court. Apart from this, the claim of Smt. Hem Lata Devi in her representation has already been rejected by the competent authority and which order has not been challenged. In such circumstances, I do not find any reason to entertain the petition of Smt. Hem Lata Devi which in my opinion deserves rejection.
8. So far as the petition of Akhilesh Tewari is concerned, the same has to succeed with the dismissal of Hem Lata's petition. This Court had nowhere issued directions for restraining Akhilesh from discharging his duties. It appears that the order stopping his salary and the order dated 1.2.2006 where passed under the threat created by the impact of the interim order passed by this Court. There remains no reason now for the same as writ petition No. 53990 of 2005 stands dismissed thereby dissolving the interim order passed earlier.
9. Accordingly, the writ petition No. 53990 of 2005, Smt. Hem Lata Devi v. State of U.P. and Ors., is dismissed subject to the observations made herein above. The writ petition No. 24728 of 2006 is allowed and the order dated 1.2.2006 is quashed. The petitioner -Akhilesh Tiwari in Writ Petition No. 24728 of 2006 shall be allowed to continue in service and receive salary including arrears subject to the observations made in this judgment.
10. Both the writ petitions, accordingly, stand disposed of.