# Bithoori Lal v. State of U.P. through Secretary & others

- **Citation:** (2000) 3 ILRA 82
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bithoori-lal-v-state-of-u-p-through-secretary-others-39552
- **Pages:** 2

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
82
discretion
having
regard
to
the
observations made herein before.

20. Let a certified copy of this order
be issued to the learned counsel on
payment of usual charges at the earliest.

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By the Court

1. Heard Sri A.C. Verma, learned
counsel for the petitioner, learned Standing
Counsel for Respondent No.1, and Sri
Mehbood Ahmad Siddiqui, holding brief
of Sri I.M. Khan, representing Respondent
no.4,
Sri
R.K.
Saxena,
Advocate,
representing Respondent nos. 2 and 3 is
not present.

2. Petitioner, belonging to Schedule
Caste, was working as Clerk-cum-Typist
in the Nagar Palika, Fatehpur since 1984.
On 17th September, 1992 one Mansoor
Ahmad, holding post of the Senographer in
said Nagar Palika, died living behind his
widow Smt. Zahida Khatoon, who has
been, admittedly, employed at the relevant
time as will be evident from perusal of
para 11 of the writ petition as well as para
21 of the Counter Affidavit, sworn by
Mohd. Arif Mansoor, Respondent no.4.

3. The petitioner claims that the post
of Stenographer held by deceased Mansoor
Ahmad was in the promotional quota in
the relevant rules no particulars given but
Respondent no.4 (son the aforementioned
deceased Mansoor Ahmad) was appointed
on compassionate ground under Dying in
Harness Rules, 1974 and copy of which
has been filed as Annexure 2 to the writ
petition. In para 10 of the writ petitioner, it
is stated that appointment letter in favour
of Respondent no.4 was anti-dated to make
it appear as on 1.10.92 even though
petitioner had already taken over the
charge on the post in question on 19th
September,1992 and hence the post was
3All] Bithoori Lal V. State of U.P. through Secretary & others
83
not vacant at all when Respondent no.
4 was allegedly issued appointment letter.

4. This Court does not intend to go
into
the
disputed
question
of
fact,
inasmuch as this petition can be decided
on a short ground. It si admitted at the Bar
that there is no material, as on date, to
indicate that whether appointment under
Dying
in
Harness
Rules
will
take
precedence over any other mode of
appointment (including by promotion etc.
or vice versa).

5. One fact, which is not disputed in
the instant case, is that wife of the
deceased was already employed. Para 6 of
the relevant Dying in Harness Rules, 1974
(Annexure-2 to the Writ Petition) shows
that certain procedure has to be adopted
before
a
dependant
of
a
deceased
employee could be given benefit of
appointment under Dying in Harness
Rules. Main emphasis is upon the financial
condition of the family.

6. Hence, this Court is of the opinion
that before appointment under Dying in
Harness Rules is proposed, the employer
must follow the procedure and undertake
an exercise to ascertain financial condition
of the family in question. The appointment
under Dying in Harness Rules is not
dependant merely upon one fact i.e. death
of an employee 'Dying in Harness'. To
seek benefit of employment under Rules,
1974 family must be distress- which must
be ascertained as a fact.

7. Since there is nothing on record to
indicate that requisite procedure was
adopted and whether condition precedent
existed-viz
family
in
distress,
no
appointment under 'Dying in Harness
Rules 1974' could be made in favour of
Respondent no. 4. Petitioner has also
failed to substantiate that appointment by
promotion is to take precedence over
appointment on compassionate grounds
under an Dying in Harness Rules.

8. I, accordingly, direct that the
matter may be decided by the Director
Local
Bodies,
U.P.
Lucknow
after
affording opportunity of hearing to the
concerned parties.

9. Consequently, I direct that if the
concerned
party/parties
files
a
representation
before
Director
Local
Bodies, U.P., Lucknow in writing (along
with certified copy of this order as well as
complete paper book of the writ petition)
within six weeks from today, the said
authority shall decide the matter after
affording opportunity of hearing to the
parties concerned by a speaking order
preferably within four months of the
receipt of the representation.

10. Till the decision on the
representation as indicated above, interim
order dated 13.5.1999 passed by this Court
shall continue.

11. Writ petition is party allowed
subject to the observations made above.

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