Hon. Mrs. Sunita Agarwal, J.
We have heard learned counsel for the parties.
This special appeal with delay of 25 days has been filed by U.P. Jal Nigam through its Chief Engineer, Jhansi Region, U.P. Jal Nigam, Jhansi-appellant no.1; Executive Engineer, 16th Branch, U.P. Jal Nigam-appellant no.2 against Shri Rajendra, who succeeded in the writ petition claiming relief of compassionate appointment on the death of his father Shri Chhote Lal serving as driver in U.P. Jal Nigam at Jhansi on 4.8.2007.
Shri Rajendra, the respondent applied for compassionate appointment on the death of his father late Chhote Lal serving as a driver along with death certificate, succession certificate and a no objection certificate given by his sister Smt. Radha Rani. The succession certificate was issued by the Civil Judge (SD), Banda in Petition No.56 of 1970 of the year 2000. The respondent alleged in the application that his sister Smt. Radha Rani has received all the benefits on the death of their father namely GPF, gratuity, leave encashment and insurance.
The Executive Engineer, 16th Branch, U.P. Jal Nigam, Banda replied to the petitioner stating that after the death of Chhote Lal, only his son, daughter and widow as members of his family will fall within the purview of entitlement for compassionate appointment. The petitioner's father name mentioned in the succession certificate is Luchchi and not Chhote Lal.
The respondent found that by a mistake in the succession certificate dated 19.2.2001 in Case No.56/70/2000, Smt. Radha Rani v. Rajendra, the name of the father of the petitioner was recorded as Luchchi. He filed a Misc. Case No.6/74/2003 for correcting the name of his father. The Civil Judge in a proceeding for correction of the name of the petitioner's father considered a 'will', which was proved in proceedings for correction of the order by the attesting witnesses. He passed a long and detailed order dated 20.12.2006 correcting the name of petitioner's father as Chhote Lal in place of Luchchi and consequently corrected the succession certificate. After getting the order passed by the Civil Judge (SD), Banda in Misc. Case No.6/74/2003 the petitioner again applied for compassionate appointment on 28.12.2006. The application was again rejected by the Executive Engineer on 22.3.2007 on the ground that on a legal opinion sought on the petitioner's application, the applicant cannot be appointed on compassionate ground.
The Writ Petition No.33178 of 2007, Rajendra v. U.P. Jal Nigam & Ors. decided on 31.1.2012 was allowed by learned Single Judge setting aside the impugned order rejecting the petitioner's application for compassionate appointment on the ground that by an error the applicant had in his application filed before the authorities shown Late Chhote Lal as his uncle. The application moved by the petitioner in the Court of Civil Judge (SD) Banda was allowed on 20.12.2006, by which a correction was carried out in the name of the petitioner's father and in which the father's name of the petitioner was corrected as Chhote Lal intead of Luchchi. It was held that even if the department was not a party before the Civil Judge, since it had not applied for recalling the order, it is bound to follow the directions of the Court.
It is submitted by learned counsel for the Jal Nigam that late Chhote Lal had made Smt. Siya Dulari, his sister-in-law as his nominee to receive GPF, pension and other dues in case of his death as he was unmarried. A letter dated 8.8.2000 was moved by Smt. Radha Rani claiming to be real sister of the petitioner-respondent stating that her uncle Shri Chhote Lal expired on 4.8.2000. Misc. Case No.56/70/2000 for succession certificate was sent by Smt. Radha Rani daughter of Luchchi, the real sister of respondent/petitioner against Rajendra son of Luchchi. The succession certificate dated 19.2.2001 was issued in favour of Smt. Radha Rani daughter of Luchchi and Rajendra. In the representation dated 22.2.2001 Smt. Radha Rani had shown herself to be the daughter of Luchchi for providing retiral benefits of her uncle late Chhote Lal. In pursuance thereof Smt. Radha Rani was paid retiral dues of Chhote Lal.
It is submitted by learned Standing Counsel that compassionate appointment may be considered for widow, son or daughter, who are dependents of the deceased under the U.P. Appointment of Government Servant (Dying in Harness) Rules. The appointment cannot be considered to be given on the basis of a declaration in a 'will' as the will does not change the relationship between the parties. It only defines or changes the succession to the estate of the deceased.
We have examined the will dated 27.7.2000 annexed as Annexure No.5 to the writ petition by the petitioner, and the circumstances in which Smt. Radha Rani, who is admittedly the real sister of the respondent, had claimed herself to be the wife of Shri Harish Chandra and daughter of Luchchi and had claimed the retiral dues of late Chhote Lal as his neice under the 'will' dated 27th July, 2000.
In the 'will' Shri Chhote Lal has given his age to be 60 years and had stated that his wife Smt. Siya Dulari had died 15 years ago from whom he had son Rajendra Kumar and daughter Radha Rani, who is married to Harish Chandra @ Pappu. He had nominated his son Shri Rajendra Kumar, the respondent and daughter Smt. Radha Rani as heirs entitled to his entire movable and immovable property and the entire service dues, to receive after his death.
In an application for correction of the name of the father of Rajendra from Luchchi to late Shri Chhote Lal, the Civil Judge (SD) has relied upon the same registered will dated 27.7.2000 witnessed by Ram Sanehi son of Tara Pati and Harish Chandra son of Shiv Ratan, who had proved the signature of Chhote Lal on the 'will'. Shri Harish Chandra also accepted that the applicant Rajendra is son of Chhote Lal. Apart from the will the Civil Judge (SD) also relied upon the electoral list filed as document No.3 Ga, verified by the Election Office, Banda, Ration Card filed as document No.14 Ka, to record findings that respondent Rajendra is son of late Shri Chhote Lal.
In the will relied upon by the Civil Judge (SD), late Shri Chhote Lal had described the respondent and Smt. Radha Rani to be his son and daughter. The circumstances in which Smt. Radha Rani and Rajendra had shown themselves to be son of Luchchi and had claimed the property of Shri Chhote Lal as their uncle in the proceedings of succession certificate (Misc. Case No.56/70/2000) have not been sufficiently explained. The succession certificate dated 19.2.2001 records the no objection certificate of the respondent Shri Rajendra to give entire service dues of late Shri Chhote Lal, their uncle to Smt. Radha Rani.
A 'will' does not change the parentage. It may define or change the succession to the estate of the deceased. It is admitted that Smt. Radha Rani is the sister of the petitioner. She has disclosed to be daughter of Luchchi and had clearly stated that late Chhote Lal was his uncle. In the 'will' Smt. Radha Rani' is shown to be real sister of the petitioner. In the circumstances, the petitioner cannot claim to be the son of late Chhote Lal to seek compassionate appointment. The efforts made by him to prove himself to be the son of Chhote Lal have miserably failed. The correction of the order carried out by the Civil Judge (SD), Banda was entirely misplaced and in any case the correction in the name of the father in the overwhelming facts and circumstances would not amount to proof of his relationship as son of late Chhote Lal.
We are of the view that the learned Single Judge legally erred in relying upon the order passed by Civil Judge (SD) in miscellaneous proceedings for correcting the name of the father of the petitioner. The correction will not benefit the petitioner as it does not amount to declaration of the relationship of Shri Rajendra with late Shri Chhote Lal. Shri Rajendra could have filed civil suit for declaration that he is son of late Shri Chhote Lal. The correction of the father's name in the proceedings for succession in which his real sister Smt. Radha Rani has shown herself to be daughter of Luchchi would not benefit him for seeking employment on compassionate ground.
The special appeal is allowed. The judgment of learned Single Judge dated 31.1.2012 is set aside.
Dt.28.05.2014 SP/