Ashish Kumar Shukla v. State of U.P. Thru Prin.Secy.Medical and Health Lucknow and Ors

Court No. - 8 Case :- WRIT - A No. - 7461 of 2019 Petitioner :- Ashish Kumar Shukla Respondent :- State Of U.P. Thru Prin.Secy.Medical And Health Lucknow And Ors. Counsel for Petitioner :- S.K. Tripathi Counsel for Respondent :- C.S.C.,Arun Kumar Gupta,Saloni Jaiswal Hon'ble Dinesh Kumar Singh,J.

¶1Heard Shri S.K. Tripahti, learned counsel for the petitioner and Shri Prafulla Kumar Yadav, learned Standing Counsel appearing for the State-respondents No.1 to 4.

¶2No one has put in appearance on behalf of respondent Nos.5 to 7, however, a counter affidavit has been filed on their behalf.

¶3The present petition under Article 226 of the Constitution of India has been filed seeking following reliefs:- "(i) To issue a writ, order or direction in the nature of mandamus commanding respondent No.1 to 4 to consider and appoint the petitioner under the U.P.Employment of Dependants of Government Servants (Dying in Harness Rules, 1974), due to death of his mother Smt. Saroj Kumari Shukla during her service tenure, according to his qualification.

(ii)...

(iii)..."

¶4The petitioner is son of Late Saroj Kumari Shukla, who was initially married to Shri Gopi Shyam Shukla. It is said the during the lifetime of Shri Gopi Shyam Shukla, the mother of the petitioner got remarried to Shri Rama Kant Shukla-respondent No.5 and she gave birth to respondent No. 6 and 7.

¶5The late mother of the petitioner was working as Basic Health Worker (Women), Department of Medical Health and she died in harness on 04.10.2017.

¶6It appears that the petitioner as well as respondent No.6 and 7 stake their claim for their employment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Dying in Harness Rules, 1974").

¶7Shri S.K. Tripathi, learned Counsel for the petitioner submits that respondent No.6 and 7 were not legitimate children of late mother of the petitioner inasmuch as the mother of the petitioner had not given divorce to the father of the petitioner and during the lifetime of the father of the petitioner she had married to respondent No.5-Rama Kant Shukla and gave birth to respondent No.6 and 7. He therefore, submits that when the petitioner is the child from the first husband, who was alive, he has right to be appointed on compassionate ground under the Dying in Harness Rules, 1974 in preference to the illegitimate children of late mother of the petitioner.

¶8Shri Prafulla Kumar Yadav, learned Standing Counsel for the State-respondents does not dispute this legal position.

¶9In view thereof, the present petition is allowed. The respondent Nos. 1 to 4 are directed to process the application of the petitioner for giving him appointment under the Dying in Harness Rules, 1974 in accordance with law within a period of two months from today. (Dinesh Kumar Singh, J.) Order Date :- 25.5.2023 Piyush/- High Court of Judicature at Allahabad, Lucknow Bench