Mukhtar Ahmad v. State of U.P. and others) Hon'ble Alok Mathur,J

1. Heard Sri Piyush Mishra, learned counsel for the petitioner as well as Standing counsel for the respondents.

2.Since both the writ petitions involve common questions of facts and law and, hence, they are being decided by this common order.

3. It has been submitted that mother of the petitioner, namely Sakila Bano was working on class IV post (Dhawak) having been appointed on 27/28.7.1983 with Executive Engineer, Sinchai Khand, Ayodhya. She continued to work there to the full satisfaction of the superiors till she died on 23.1.2022 during her servcie period. It is stated that the mother of the petitioner was illiterate and was also not aware of her date of birth and accordingly, the department got her medically examined on 17.7.1984 where her age was determined to be 22 years and her date of birth as 16.7.1962.

4. The grievance of mother of the petitioner as well as petitioner has arisen on account of the fact that the respondents issued a notice to the mother of the petitioner stating that according to the service book her date of birth is 23.10.1951 and she would superannuate on 22.10.2011. On receipt of the said notice mother of the petitioner filed a writ petition bearing writ petition No.4634 (S/S) of 2010 ( Smt. Sakila Bano Vs. State of U.P. and others) which was dismissed on 9.11.2011. Review petition bearing (D) No.455 of 2012 was also filed which too was rejected on 21.2.2014. The mother of the petitioner thereafter filed a special appeal assailing both the aforesaid orders in Special Appeal No.175 of 2014 where this Court relying upon the statement made by mother of the petitioner and also the fact that her age has been duly determined by medical board and accordingly allowed the special appeal and dismissed the writ petition as well as the order passed in review application thereof.

5.It is submitted hat the order of the Division Bench judgment and order dated 26.8.2015 was duly communicated to the competent authority to comply with the same and to allow the petitioner to discharge her duties till the age of her superannuation i.e. 22.7.2022 but the respondents did not comply with the said order and continued to treat her date of birth to be 1951. The mother of the petitioner died on 23.1.2022 and after her death the petitioner had claimed compassionate appointment under U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974 which application has been rejected by the respondents on 25.4.2023 which has been assailed by the petitioner in instant Writ A No.6002 of 2024 (Mukhtar Ahmad Vs. State of U.P. and others). The respondents had also rejected the representation of the petitioner for grant of post retiral dues on the death of her mother and the said representation was also based on the fact that date of birth of the mother of the petitioner was 1951 and would have superannuated in 2011 which has been previous to her death and consequently the petitioner would not be entitled for the benefits under the Rules of 1974 and also denied payment of salary to the petitioner since 2011 and till the date of her death. This representation has been rejected by means of order dated 25.4.2023 that too has been rejected by means of order dated 25.4.2023 which has been assailed in Writ A No.5841 of 2023.

6. Accordingly, the only dispute which is to be adjudicated in both the writ petitions pertain to date of birth of the mother of the petitioner. In this regard, we find that mother of the petitioner was unsuccessful before the Single Judge in writ petition No.4634 of 2010 as well as review application preferred by her but the judgment of the Single Judge was set aside in Special Appeal No.175 of 2014 where this Court relied upon the opinion of Chief Medical Officer rendered on 17.7.1984 indicating that mother of the petitioner was 22 years of age at that time and consequently her date of birth would be 17.7.1962. It is in aforesaid circumstances that the Division Bench had allowed the special appeal though erroneously mentioned in the penultimate paragraph that date of birth would be 17.7.1984 which is clearly a clerical and typographical error. The same is evident from the discussion in prior paragraphs to the special appeal as well the fact that the special appeal, was in fact, allowed and the judgment and order of Single Judge was set aside . Accordingly, this Court after looking into the judgment of Single Judge as well as Division Bench passed in Special Appeal no.175 of 2014 is that the age of mother of the petitioner was determined by Chief Medial Officer on 17.7.1983 to be is 17.7.1962. In case the date of birth of mother of the petitioner was 17.7.1962 she wold have been continued in service till 16.7.2022 and certainly on the date of her death i.e. 23.1.2022 she would be deemed to be in service.The judgment of Division Bench is binding and is to be followed by the State.

7. In aforesaid circumstances the writ petition No.6002 of 2024 deserves to be allowed and it is hereby allowed. Impugned order dated 25.4.2023 is set aside and it is directed that the application of the petitioner for appointment on compassionate grounds shall be duly considered by the respondents treating the fact that mother of the petitioner died in harness and consequently the petitioner would be entitled for compassionate appointment under the said circumstances.

8. For the reasons aforesaid writ A No.5841 of 2023 is also allowed. The impugned order dated 25.4.2023 passed by opposite party No.5 to the extent it denies retiral benefits of petitioner's mother treating her retirement dated in the month of July, 2022, is set aside. The respondents are directed to pay all service benefits and other post retiral dues to the petitioner to which the petitioner would be entitled to under law treating the date of birth of the mother to be 17.7.1962 and consequently she would be superannuated on 16.7.2022.

9. Let aforesaid consideration of appointment of the petitioner on compassionate grounds and also for paying dues to the petitioner on account of death of her mother and other service benefits be paid expeditiously, preferably within six weeks from the date a certified copy of this order is produced before the appropriate authority. (Alok Mathur, J.) Order Date :- 3.3.2025 RKM.

1. Heard Sri Piyush Mishra, learned counsel for the petitioner as well as Standing counsel for the respondents.

2.Since both the writ petitions involve common questions of facts and law and, hence, they are being decided by this common order.

3. It has been submitted that mother of the petitioner, namely Sakila Bano was working on class IV post (Dhawak) having been appointed on 27/28.7.1983 with Executive Engineer, Sinchai Khand, Ayodhya. She continued to work there to the full satisfaction of the superiors till she died on 23.1.2022 during her servcie period. It is stated that the mother of the petitioner was illiterate and was also not aware of her date of birth and accordingly, the department got her medically examined on 17.7.1984 where her age was determined to be 22 years and her date of birth as 16.7.1962.

4. The grievance of mother of the petitioner as well as petitioner has arisen on account of the fact that the respondents issued a notice to the mother of the petitioner stating that according to the service book her date of birth is 23.10.1951 and she would superannuate on 22.10.2011. On receipt of the said notice mother of the petitioner filed a writ petition bearing writ petition No.4634 (S/S) of 2010 ( Smt. Sakila Bano Vs. State of U.P. and others) which was dismissed on 9.11.2011. Review petition bearing (D) No.455 of 2012 was also filed which too was rejected on 21.2.2014. The mother of the petitioner thereafter filed a special appeal assailing both the aforesaid orders in Special Appeal No.175 of 2014 where this Court relying upon the statement made by mother of the petitioner and also the fact that her age has been duly determined by medical board and accordingly allowed the special appeal and dismissed the writ petition as well as the order passed in review application thereof.

5.It is submitted hat the order of the Division Bench judgment and order dated 26.8.2015 was duly communicated to the competent authority to comply with the same and to allow the petitioner to discharge her duties till the age of her superannuation i.e. 22.7.2022 but the respondents did not comply with the said order and continued to treat her date of birth to be 1951. The mother of the petitioner died on 23.1.2022 and after her death the petitioner had claimed compassionate appointment under U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974 which application has been rejected by the respondents on 25.4.2023 which has been assailed by the petitioner in instant Writ A No.6002 of 2024 (Mukhtar Ahmad Vs. State of U.P. and others). The respondents had also rejected the representation of the petitioner for grant of post retiral dues on the death of her mother and the said representation was also based on the fact that date of birth of the mother of the petitioner was 1951 and would have superannuated in 2011 which has been previous to her death and consequently the petitioner would not be entitled for the benefits under the Rules of 1974 and also denied payment of salary to the petitioner since 2011 and till the date of her death. This representation has been rejected by means of order dated 25.4.2023 that too has been rejected by means of order dated 25.4.2023 which has been assailed in Writ A No.5841 of 2023.

6. Accordingly, the only dispute which is to be adjudicated in both the writ petitions pertain to date of birth of the mother of the petitioner. In this regard, we find that mother of the petitioner was unsuccessful before the Single Judge in writ petition No.4634 of 2010 as well as review application preferred by her but the judgment of the Single Judge was set aside in Special Appeal No.175 of 2014 where this Court relied upon the opinion of Chief Medical Officer rendered on 17.7.1984 indicating that mother of the petitioner was 22 years of age at that time and consequently her date of birth would be 17.7.1962. It is in aforesaid circumstances that the Division Bench had allowed the special appeal though erroneously mentioned in the penultimate paragraph that date of birth would be 17.7.1984 which is clearly a clerical and typographical error. The same is evident from the discussion in prior paragraphs to the special appeal as well the fact that the special appeal, was in fact, allowed and the judgment and order of Single Judge was set aside . Accordingly, this Court after looking into the judgment of Single Judge as well as Division Bench passed in Special Appeal no.175 of 2014 is that the age of mother of the petitioner was determined by Chief Medial Officer on 17.7.1983 to be is 17.7.1962. In case the date of birth of mother of the petitioner was 17.7.1962 she wold have been continued in service till 16.7.2022 and certainly on the date of her death i.e. 23.1.2022 she would be deemed to be in service.The judgment of Division Bench is binding and is to be followed by the State.

7. In aforesaid circumstances the writ petition No.6002 of 2024 deserves to be allowed and it is hereby allowed. Impugned order dated 25.4.2023 is set aside and it is directed that the application of the petitioner for appointment on compassionate grounds shall be duly considered by the respondents treating the fact that mother of the petitioner died in harness and consequently the petitioner would be entitled for compassionate appointment under the said circumstances.

8. For the reasons aforesaid writ A No.5841 of 2023 is also allowed. The impugned order dated 25.4.2023 passed by opposite party No.5 to the extent it denies retiral benefits of petitioner's mother treating her retirement dated in the month of July, 2022, is set aside. The respondents are directed to pay all service benefits and other post retiral dues to the petitioner to which the petitioner would be entitled to under law treating the date of birth of the mother to be 17.7.1962 and consequently she would be superannuated on 16.7.2022.

9. Let aforesaid consideration of appointment of the petitioner on compassionate grounds and also for paying dues to the petitioner on account of death of her mother and other service benefits be paid expeditiously, preferably within six weeks from the date a certified copy of this order is produced before the appropriate authority. (Alok Mathur, J.) Order Date :- 3.3.2025 RKM.