# Basant Lal v. The Chairman, Nagar Palika Parishad ,Jaunpur and others

- **Citation:** (2003) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-01
- **Case number:** Civil Misc. Writ Petition No. 37859 of 2002
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/basant-lal-v-the-chairman-nagar-palika-parishad-jaunpur-and-others-40043
- **Pages:** 4

## Headnote

Sri Shashi Nandan
Sri M.J.B. Rana
Sri P.C. Srivastava

U.P.
Recruitment
of
Dependents
of
Government Servant Dying in Harness
Rules 1974- widow belonging to Muslim
Community - claimed herself to be
divorced
wife
of
Hindu's
husband-
whether entitled to claim appointment ?
- whether the divorce was made under
Hindu Marriage Act- without deciding
this question none can be appointed-
direction issued accordingly.

## Text

http://www.allahabadhighcourt.nic.in
1 All] Basant Lal Vs. The Chairman, Nagar Palika Parishad ,Jaunpur and others
1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.11.2002

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 37859 of 2002

Basant Lal

...Petitioner
Versus
The Chairman, Nagar Palika Parishad,
Jaunpur and others
 ...Respondents

Counsel for the Petitioner:
Sri Ashok Singh
Sri Vinay Singh

Counsel for the Respondents:
Sri Shashi Nandan
Sri M.J.B. Rana
Sri P.C. Srivastava

U.P.
Recruitment
of
Dependents
of
Government Servant Dying in Harness
Rules 1974- widow belonging to Muslim
Community - claimed herself to be
divorced
wife
of
Hindu's
husband-
whether entitled to claim appointment ?
- whether the divorce was made under
Hindu Marriage Act- without deciding
this question none can be appointed-
direction issued accordingly.

(Delivered by Hon'ble S.N. Srivastava, J.)

1. By way of this petition petitioner
prayed for quashing the order dated
29.8.2002, annexure -5 to the writ
petition, passed by Opp. Party no. 2
appointing
Opp.
Party
no.
3
on
compassionate ground on death of late
Prem Lal and further prayed to direct
Opp. 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 on 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 Opp. Party no., who is
claiming herself to be widow of Prem Lal
father of the petitioner cannot be
recognized in law as widow. Opp. Party
no. 2 erred in law in passing orders for
appointment in favour of Opp. Party no. 3
treating her 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 Opp. Party no. 3 was rightly
passed by Opp. 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 Opp. Party no. 3 supported
the
arguments
made
by
Sri
P.C.
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2 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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.

I heard learned counsel for the
parties and considered their respective
arguments.

6. Whether petitioner and Opp. 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 Opp.
Party no. 3.

7. 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. Sundari
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).

8. 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 Opp. Parties.
9. It is not disputed that Gopal,
Basant Lal and Santosh are sons and
Sunita is daughter of Prem Lal from his
first wife. From the perusal of Annexure
CA-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 Sanno Devi.

10. In rejoinder affidavit filed by
petitioner Annexure-RA-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 -RA-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 Scheduled Caste Order 1950 and
amended by the Uttar Pradesh Scheduled
Caste and Scheduled Tribe Order , 1967.

11. 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.

12. 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 pleading and materials on
record clearly established that case set up
by Nagar Palika Parishad, Jaunpur and
Opp. Party no. 3 that Prem Lal was
Muslim is falsified.

13. Now the question arises to be
considered whether Chanda Devi was
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1 All] Basant Lal Vs. The Chairman, Nagar Palika Parishad ,Jaunpur and others
3
legally wedded wife of Prem Lal. She
could be recognized 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.

14. Under the Uttar Pradesh
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974, family has been defined.

15. 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
name as member of the family 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 being quoted below:-
"16. Legitimacy of children of void
and void able marriages :-
(1) Notwithstanding that a marriage
is nuil and void under section 11, any
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.

16. The Uttar Pradesh Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974 makes it
clear that in case an 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.

Rule 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 but it shall be sent to the Head
of Office where the deceased Government
servant was serving prior to his death. The
application shall , inter 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
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4 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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."

17. The Application filed by Opp.
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 Opp.
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 Opp. Party no. 2 could
have passed the orders.

18. The order passed by Opp. 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.

19. Now Opp. 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 Opp.
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
alongwith
other
heirs/dependents. Appointing authority is
required to decide the question whether
Smt.
Sundari
Devi
was
divorced
according to the Hindu Marriage Act and
her marriage ceased to exist before
remarriage as claimed by Chanda Devi.

20. In view of the above, the writ
petition succeeds and is allowed. The
impugned order dated 29.8.2002 is
quashed.

21. Appointing authority shall now
consider the case of all application 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.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 2nd DEC., 2002.

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 22919 of 2001

Reevan Singh

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi
Sri Shashi Nandan

Counsel for the Respondents:
Sri S.F.A. Naqvi
Sri M.D. Misra
Sri S.M. Abbas Naqvi
S.C.

U.P. Government Servant Seniority
determination
Rules-
1991-
Rule-9-
Selection for the post of Deputy Jailor
held and finalised in the year 1989,
Subsequent Selection in the year 1990-
are
held-
illegal-
directions
issued
accordingly.