KANHAIYA LAL Vs. STATE OF U P
LAWS(ALL)-2001-5-166
HIGH COURT OF ALLAHABAD
Decided on May 04,2001

KANHAIYA LAL Appellant
VERSUS
STATE OF UTTAR PRADESH Respondents




JUDGEMENT

Binod Kumar Roy, Lakshmi Bihari, JJ. - (1.)Following prayers have been made in this writ petition by the two petitioners, who are related as Grandfather and Grandson respectively :
(i) to quash the order dated 17.6.1995 passed by Collector. Farrukhabad (as contained in Annexure-17) :

(ii) to command respondent No. 1. State of U.P. which has been sued through the District Magistrate. Farrukhabad, to Issue a certificate of dependant of Freedom fighter ;

(iii) to issue any writ, order or direction as may be deemed fit and proper, and (iv) to award costs. 1.1. A perusal of the impugned order shows rejection of the petition dated 17.5.1995 filed by the Petitioner No. 1 before the Collector, Farrukhabad (as contained in Annexure-15) for issuing a certificate that his Grandson Hari Narain Sharma (petitioner No. 2 herein) is actually dependent on him.

(2.)The case of the Petitioners, in substance, is as follows : Since his childhood the petitioner No. 2 has been living with petitioner No. 1 as his dependent and he has no concern with his father Om Prakash. Petitioner No. 2 is a Diploma holder in Civil Engineering since 1986 and still unemployed and eligible for being appointed as a Junior Engineer. The fact that the petitioner No. 1 happens to be the guardian of petitioner No. 2 stands mentioned in his School Leaving Certificate as contained in Annexure-2. As per the Government Order dated 7.9.1972 (as contained in Annexure-3 clarifying the earlier Government Order dated 6.2.1972) the grandsons who are dependents of freedom-fighters, are entitled for certificate of dependent of freedom-fighters which after its deletion by Government Order dated 3.4.1972 (as contained in Annexure-4) was again included vide Government Order dated 19.1.1977 (as contained in Annexure-5). Vide another Government Order dated 22.1.1982 (as contained in Annexure-6). a clarification was issued to the Public Service Commission in respect of reservation in service for the dependents of freedom-fighters. Vide Government Order dated 15.1.1983 (copy appended as Annexure-7) the facilities provided to the dependents of the freedom -fighters were made applicable upto 1985 and by another Government Order dated 3.9.1992 (copy appended as Annexure-9) the same was extended upto 31.12.1997. The petitioner No. 2 being fully dependent on petitioner No. 1 is entitled to such a certificate. In January, 1993 an application was submitted for grant of such a certificate. On the said application, enquiries were made by the Lekhpal. Kanoongo and Tahsildar. From the report dated 28.12.1993 of the Lekhpal and reports dated 29.12.1993 of the Kanoongo and Tahsildar submited to the Collector, Farrukhabad (as contained in Annexure-10) even though it was clear that the petitioner No. 2 was reported to be dependent on the petitioner No. 1 with whom he resides whereas his father Om Prakash Sharma does "Lohargiri" (blacksmith by profession) yet the District Magistrate, Farrukhabad, refused to issue the desired certificate. A representation dated 9.2.1994 was made by the petitioner No. 1 to the Special Secretary, U.P. Government, who vide his order as contained in letter dated 9.2.1994 (copy appended as Annexure-11) asked the District Magistrate, Farrukhabad to pass appropriate order in the light of G.O. dated 15,1.1983 . On 8.9.1993 a certificate (copy appended as Annexure-12) was issued to petitioner No. 1 to the effect that petitioner No. 2 is his grand-son but relying upon the Government Order dated 8.12.1986 it was stated that petitioner No. 2 is not dependent of a freedom-fighter and thus not entitled to such a certificate. Various efforts were made for issuance of the desired certificate. An advertisement for appointment to the post of Junior Engineers in the Department of Rural Engineering Service was published in 1995 pursuance to which petitioner No. 2 applied. appeared in the written test, called for an interview and was asked by the Public Service Commission, vide its letter dated 1.3-1995 (copy appended as Annexure-13) to submit such a certificate, which was served on him on 16.5.1995. On receipt of this letter, another application dated 18.5.1995 along with his affidavit (copy appended as Annexure-14) was filed by petitioner No. 1 before the Collector. The Lekhpal vide his report dated 21.5.1995 (copy appended as Annexure-15) submitted to the effect that the petitioner No. 2 is in fact totally dependent on his Grandfather who is a freedom-fighter pensioner. The Kanoongo, vide his report dated 24.5.1995 (which is part of Annexure-15 itself) also submitted his report favourably. Despite favourable reports and recommendations, the desired certificate has not been issued till date, respondent No. 1 has no authority to withhold issuance of the desired certificate. Petitioner No. 2 personally visited the office of respondent No. 1 on 22.5.1995 and requested him for issuance of the desired certificate but the latter refused to do anything. The petitioners 'moved this Court in Civil Misc. Writ Petition No. 15435 of 1995 which was disposed of vide order as contained in Annexure-!6 with a direction to the District Magistrate. Farrukhabad. to decide the representation in accordance with the Government Order and thereafter vide impugned order the representation was rejected without giving any opportunity of being heard and thereby it is liable to be set aside. In rejecting his representation, the District Magistrate has completely ignored and not at all considered the reports of the Lekhpal and Kanoongo as contained in Annexures-10 and 15, which were already on the record clearly proving that the petitioner No. 2 came within the purview of dependent of a freedomfighter. The Public Service Commission is going to declare the result of selection and it is apprehended that in the absence of desired certificate he may not be considered and thus an Irreparable loss will be suffered.
(3.)A counter-affidavit, sworn by the Additional Tahsildar, was filed on 11.9.1996 asserting to the following effect : He has been authorised to file counter-affidavit on behalf of respondent No. (leaving the number blank) who has full knowledge in regard to the facts stated in the writ petition and is competent to answer them, petitioner No. 2 is not dependent on his grand-father Kanhaiya Lal but on his father Om Prakash who is doing in Iron grill manufacturing business. In the School Leaving Certificate the name of Kanhaiya Lal stands entered as a Guardian and the petitioner No. 2 has not been shown as his dependent. Petitioner No.1 resides with his second son Ram Narain from which it is clear that even the father of petitioner No. 2 is not dependent on petitioner No.1 ; the Government Order dated 22.1.1982 clearly states that for civil services merely being a dependent is not sufficient but one should be factually dependent whereas petitioner No. 2 is in fact not a dependent on his grandfather and the Government Order in question does not apply ; from the spot-inspection in question it is clear that petitioner No. 2 is not dependent on his grand-father but is dependent on his father, the reports relied upon are incomplete besides the Tahsildar, who is the competent authority, has not submitted his report, but has merely forwarded which has no justification inasmuch as his report should have been clear and made after a thinking which was not accepted by the Pargana Adhikari, who recommended for non-issuance of the certificate and accordingly it was not issued, the Government has not passed any order to issue certificate without holding a complete enquiry, only reports of a gazetted officer is liable for acceptance and the reports of Lekhpal and Kanoongo are not acceptable, the petitioners were not found entitled for issuance of the certificate which can be issued only as per the rules, the Impugned order has been passed as per the rules in which there is no error, the petitioners are not entitled to the reliefs prayed for under Article 226 of the Constitution of India and the writ petition is worthy of dismissal with cost.


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