JUDGMENT S.N. Srivastava, J.
1. By way ofthis petition petitioner prayed for quashing the order dated 29.8.2002. Annexure-5 to the writ petition, passed by opposite party No. 2 appointing opposite party No. 3 on compassionate ground on death of late Prem Lal and further prayed to direct opposite party Nos. 1 and 2 to appoint the petitioner as Class IV employee on compassionate ground under Dying-in-Harness Rules, in place of his father.
2. Sri Prakash Chandra Srivastava filed counter-affidavit on behalf of Nagar Palika Parishad, Jaunpur. He made statement before this Court that U. P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, has been adopted by the Nagar Palika Parishad, Jaunpur and the appointment under the Dying-in-Harness is governed by the same.
3. Learned counsel for the petitioner urged that his father Prem Lal died in harness and he being the son and one of the dependent is entitled to be considered for appointment, under the Dying-in-Harness Rules. He further urged that Smt. Sundari Devi, mother of the petitioner is still alive and opposite party No. 3 who is claiming herself to be widow of Prem Lal, father of the petitioner cannot be recognised in law as widow. Opposite party No. 2 erred in law in passing orders for appointment in favour of opposite party No. 3 treating her as widow and dependent of Prem Lal without considering claim of the petitioner and his other brothers.
4. In reply Sri Prakash Chandra Srivastava, learned counsel appearing for Nagar Palika Parishad, Jaunpur, urged that Prem Lal son of Bakreedu Lal was Muslim. He married Smt. Chanda Devi after divorcing his first wife Smt. Sundari Devi. Nagar Palika Parishad, rightly passed orders for appointment of Smt. Chanda Devi, the widow of Prem Lal. The order appointing opposite party No. 3 was rightly passed by opposite party No. 2 in accordance with law on the basis of the service records of Nagar Palika Parishad.
5. Sri J.B. Rana, learned counsel appearing for opposite party No. 3 supported the arguments made by Sri P.C. Srivastava and urged that she was the only dependent on the date of death of Prem Lal and was entitled to be appointed under the Dying-in-Harness Rules.
6. I heard learned counsel for the parties and considered their respective arguments.
7. Whether petitioner and opposite party No. 3 are heirs and dependents of Prem Lal depends on the question whether the father of petitioner Prem Lal was Hindu and died as Hindu as pleaded by his son petitioner from the first wife Smt. Sundari Devi or was Muslim as pleaded by Nagar Palika Parishad, Jaunpur, through affidavit of Sri Hatim Hasan, Lipik, Nagar Palika Parishad, Jaunpur, supported by opposite party No. 3.
8. In paragraph 3 of the writ petition, petitioner has stated that father of the petitioner died on 29.6.2002 due to heart failure leaving his widow Smt. Sundar Devi, three sons Gopal, Basant Lal and Santosh and one married daughter Sunita. Petitioner has filed a death certificate dated 1.7.2000 of his father as Annexure-2 to the writ petition. This certificate issued by Nagar Palika Parishad mentioned Prem Lal as Hindu (Hela).
9. Paragraph 3 of the writ petition has been replied in paragraph 5 of the counter-affidavit. The only pleading made in counter-affidavit was that Smt. Chanda Devi was married on 3.5.1993 and a registered Will was executed by petitioner in favour of Smt Chanda Devi on 30.12.2000. It was also stated that first wife was divorced. Annexure-2 to the writ petition which mentions Prem Lal as Hindu (Hela-Scheduled Caste) has not been denied by any of the opposite parties.
10. It is not disputed that Gopal, Basant Lal and Santosh are sons and Sunit is daughter of Prem Lal from his first wife. From the perusal of Annexure-C.A. 2 to the counter-affidavit, i.e., Will which mentions names of son and daughter of Prem Lal from Chanda Devi as Saheb Lal and Shanno Devi.
11. In rejoinder-affidavit filed by petitioner Annexure-R.A. 1 is F.R. Form No. 13 containing thumb impression of Prem Lal duly signed by Swasthya Nagar Adhikari, Nagar Palika Parishad, Jaunpur, on 24.8.1977. This document mentions Prem Lal as Hela. Annexure-R.A. 3 certificate issued by the Tehsildar, Jaunpur, in favour of Basant Lal son of Prem Lal also mentions Prem Lal as Hela (Hindu). This certificate was issued under the Schedule Caste Order, 1950 and amended by the Uttar Pradesh Scheduled Caste and Scheduled Tribe Order, 1967.
12. There is no material on record that the marriage of Prem Lal with Chanda Devi has taken place according to Muslim Law and any burial has taken place.
13. Considering the facts of the matter. I believe the case of petitioner that Prem Lal was Hindu. He died as Hindu and all his sons and daughters are Hindu. There is neither any material nor pleading to show that he ever accepted Muslim religion and became Muslim during his life-time. The pleadings and materials on record clearly established that case set-up by Nagar Palika Parishad, Jaunpur and opposite party No. 3 that Prem Lal was Muslim is falsified.
14. Now the question arises to be considered whether Chanda Devi was legally wedded wife of Prem Lal. She could be recognised as legally wedded wife and dependent in law only if it is proved that Smt. Sundari Devi was divorced by Prem Lal. The appointing authority was required to take evidence and decide whether Smt. Sundari Devi was divorced in accordance with Hindu Law and thereafter Chanda Devi was married which it failed to do.
15. Under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, family has been defined.
16. Undisputedly petitioner being son of Prem Lal is family member. If Chanda Devi proves before appointing authority that Smt. Sundari Devi was divorced before her marriage, she could be named as member of the family of Prem Lal. Under Section 16 of the Hindu Marriage Act even if second marriage is void, sons and daughters of Prem Lal from second wife would be legitimate heirs.
Section 16 of the Hindu Marriage Act is being quoted below :
"16. Legitimacy of children of void and voidable marriages.--(1) Notwithstanding that a marriage is null and void under Section 11, may child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act."
17. The Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, makes it clear that in case an application is filed for appointment under the Dying-in-Harness Rules, the application shall contain all the details and if more than one member of the family of the deceased seeks employment, the Head of the Office shall decide about the suitability of the persons for giving appointment.
18. Rules 6 and 7 of the said Rules are being quoted below :
"6. Contents of application for employment.--An application for appointment under these rules shall be addressed to the appointing authority in respect of the post for which appointment is sought hut it shall be sent to the Head of Office where the deceased Government servant was serving prior to his death. The application shall, infer alia, contain the following information :
(a) the date of the death of the deceased Government servant ; the department in which he was working and the post which he was holding prior to his death.
(b) names, age and other details pertaining to all the members of the family of the deceased, particularly about their marriage, employment and income ;
(c) details of the financial condition of the family ; and
(d) the educational and other qualifications, if any, of the applicant.
7. Procedure when more than one member of the family seeks employment.---If more than one member of the family of the deceased Government servant seeks employment under these Rules, the Head of Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interest of the welfare of the entire family, particularly the widow and the minor members thereof."
19. The application filed by opposite party No. 3 does not contain name of petitioner and other heirs/dependents of Prem Lal. They were also entitled to be considered by the appointing authority before passing the order in favour of opposite party No. 3 as required under Rule 7 of the Dying-in-Harness Rules and only after considering the claim of all the heirs/dependents, opposite party No. 2 could have passed the orders.
20. The order passed by opposite party No. 2 without applying its mind to the relevant rules and without considering the claim of other heirs/dependents of Prem Lal is vitiated in law and liable to be quashed.
21. Now opposite party No. 2 is directed to consider the case of petitioner and other heirs/dependents of Prem Lal who claim appointment and decide the question of appointment under Dying-in-Harness Rules amongst the children from first wife or second wife. In case opposite party No. 3 satisfies appointing authority that she was married after divorce in accordance with law from Smt. Sundari Devi first wife of Prem Lal, she may also be considered along with other heirs/ dependents. Appointing authority is required to decide the question whether Smt. Sundar Devi was divorced according to the Hindu Marriage Act and her marriage ceased to exist before remarriage as claimed by Chanda Devi.
22. In view of the above, the writ petition succeeds and is allowed. The impugned order dated 29.8.2002, is quashed.
23. Appointing authority shall now consider the case of all applications of the heirs/dependents of late Prem Lal who are applicants for employment under Rule 7 of the U. P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 and pass appropriate orders considering observations of this Court in the body of the judgment within a period of three months from the date of production of certified copy of this order.
24. No order as to costs.