The central legal point established in the judgment is that the appointment under Dying-in-Harness Rules is not solely dependent on the death of an employee but also requires the family to be in distress, which must be ascertained as a fact.

( 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 Scheduled Caste, was working as Clerk-cum-typist in the Nagar palika, Fatehpur since 1984. On September 17. 1992 one Mansoor Ahmad, holding post of the stenographer in the said Nagar Palika, died living behind his widow Smt. Zahlda Khatcon, 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 of 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 petition it is stated that appointment letter in favour of respondent no. 4 was anti-dated to make it appear as on 1. 10. 1992 even though petitioner had already taken over the charge on the post in question on September 19. 1992 and hence the post was 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 is 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 in 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 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 partly all