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2003 DIGILAW 297 (UTT)

Manisha Chand v. Distt. Magistrate, Pithoragarh

2003-12-08

RAJESH TANDON

body2003
Judgment Heard Shri Sudhanshu Dhulia Learned Counsel for the petitioner and Standing counsel for the respondent. 2. Rule, Respondent waive service. Both the parties agreed that the writ petition may be decided finally. 3. By the present writ petition the petitioner has prayed for the following reliefs: - 1. Issue a writ, order or direction in the nature of mandamus directing the respondent no. 1 to appoint the petitioner on Class III post in District-Pithoragarh under U.P. Recruitment of Dependant of Government Servant Dying in Harness Rules, 1974. 2. Issue any suitable writ, order or direction in nature of which this Hon'ble Court may deem fit and proper in the circumstances of the case. 3. Award the cost of the writ petition to the petitioner. 4. Brief facts giving rise to the present writ petition are that the husband of the petitioner Late Shir Shyam Kumar Chandra was a Seasonal Collection Amin in District Pithoragarh. He died on 1.10.98 the petitioner has been persuading the authorities for her appointment under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. 5. It was summoned by the petitioner that her representation dt. 20.2.2000 has been decided by district Magistrate Pithoragarh and vide order dt. 17.5.2000 he has dismissed the same on the ground that the deceased was not a regular government servant as such U.P. Recruitment of Dependants of Govt. Servants Dying in Harness Rules are not applicable in his case. 6. Admittedly, the husband of the petitioner while working as Seasonal Collection Amins in District Pithoragarh on 1st October 1998. On 11th February 2000 on filing the petition by the petitioner being petition no. 7080 of 2000 the direction was made on 11th February 2000 to the following effect:- "It is stated that the petitioner Is the widow of Late Shyam Chand who was a Seasonal Collection Amins in the district of Pithoragarh and on 1.10.98 he died in harness leaving behind petitioner and two minor children. Since the only bread earner of the family died, therefore to mitigate the hardship of the family, the petitioner approached the respondents to give her appointment on compassionate ground under the aforesaid Rules so that the family can be saved from starvation. Since the only bread earner of the family died, therefore to mitigate the hardship of the family, the petitioner approached the respondents to give her appointment on compassionate ground under the aforesaid Rules so that the family can be saved from starvation. Now the grievance of the petitioner is that though considerable time has elapsed, but her said representation has not been disposed of till date by providing her appointment under the Rules. Learned Counsel for the petitioner argued that the status of Seasonal Collection Amins in Hills are different to those seasonal Collection Amins, who are working in plains because in hills there is no regular Collection Amins and, therefore, the duties and functions of regular Collection Amins are being discharged by the Seasonal Collection Amins throughout the year and as such they are entitled to get all benefits which are being provided to a regular Collection Amin in the plains. Reliance has been placed on a judgment of this Court in Writ Petition No. 9557 of 1999 (Umrao Singh and others versus State of U.P. and others) wherein a learned Single Judge of this Court directed to give salary allowances and other benefits to the Seasonal Collection Amins which are being given to a regular Collection Amins. He also contended that even a dependant of Work Charge Establishment can be given benefit of the aforesaid Rules as has been held by a Single Judge Judgment of this Court in the case of Smt. Lal Mani Versus State of U.P. and others reported in 1997(2) AWC 1342 (L.B.). He also argued that in the absence of post, the authorities are required to create supernumerary post of accommodate the dependent of the deceased employees. In this Connection he drew my attention to a judgment of the Hon'ble Supreme Court in case of Smt. Sushma Gosain and others Versus Union of India and others, reported in AIR 1989 SC. 1976:' "In this view of the matter it is necessary that the applications claiming appointment on compassionate ground under the aforesaid Rules are required to be disposed of without any delay and it would not be proper to keep such applications pending for long. However, looking to the facts and circumstances of the case and also in view of the stand taken by the learned counsel for the parties. However, looking to the facts and circumstances of the case and also in view of the stand taken by the learned counsel for the parties. I dispose of this writ petition at this stage with the direction to the District Magistrate, Pithoragarh (respondent no. 1) to look into the grievance of the petitioner and dispose of her aforesaid application for giving appointment under the Dying-in-Harness Rules, as expeditiously is possible, preferably within a period of one month from the date production of a certified copy of this order. However, if the District Magistrate arrives at to the conclusion that the petitioner is not entitled or eligible to be provided an appointment under the aforesaid Rules, he shall pass a reasoned order and communicate the same to the petitioner: 7. In this case of Umarao Singh Rawat and others Vs. D.M. Nainital and others. It has been held as under:- "This writ petition has been filed with a prayer for mandamus directing the respondents no. 2 and 4 to regularize the service of the petitioners as collection peons, as the case may be. In this case, on 13.3.1997, this court granted learned standing counsel for four weeks time to file a counter affidavit but no counter affidavit has been filed, hence, the allegation in the petition are being treated as correct and the petition is being disposed off finally. The petitioner nos. 4 to 9 are seasonal collection Amins and the petitioners no. 10 to 14 are Seasonal Collection peons in District Nainital since 1989 and onwards. The dates of their appointments have been given in para no. 3 of the writ petition. In para no. 4 of the petition, it is alleged that the work of seasonal collection amins and collection Amins is similar. In fact in the entire Tehsil Nainital there is only collection Amin and the rest of the work is being done by the petitioner no. 1 to 9 who are called seasonal collection Amins and they are performing the same work as the collection Amins. In para no. 6 of the petition, it is alleged that the situation in the hills area is some what different from the plains in U.P. prior to 1989 the land revenue in the hill areas was received through patwaris and in fact there Were no post like that of collection Amins in the Hills. In para no. 6 of the petition, it is alleged that the situation in the hills area is some what different from the plains in U.P. prior to 1989 the land revenue in the hill areas was received through patwaris and in fact there Were no post like that of collection Amins in the Hills. In 1989, the patwaris of the hills were on strike demanding higher wages as they have very wise functions to perform including police duties. In the hills of U.P. the patwaris have been given police powers, as the V.I.R. can be made by them in certain case. In 1989, the decision was taken at the higher level and it was decided that the work of collection of land revenue will be performed by the collection Amins in the hills, hence, 1989 a large number of Seasonal Collection Amins were appointed and although the work taken from them is of a regular nature they are being called seasonal Collection Amin. It is alleged in para no. 8 of the petition, that it Was absolutely unjustified Amins since there was no difference in the nature of work being performed by the Seasonal Collection Amins and the regular collection Amins. Similarly, the Seasonal Collection peons are also doing regular nature of work as they are assisting the seasonal collection Amins. The service conditions of the collections Amins are mentioned in the U.P. Collection Amins service Rules, 1974 by a notification dated 23.10.92. Certain amendments more in these rules. The true copy of the notification is Annexure-3 to the petitions. By this amendments certain Seasonal Collection Amins can be appointed as Collection Amins. If they have worked for more than four seasons. The petitioners no. 1 to 7 have worked satisfactory for more than four seasons as stated in para no. 22 of this petition. In para no. 24 it is stated that 50% posts of collection peons are to be filled from Seasonal Collection peons vide Annexure no. 5 to the petition. In para-33 it is stated that except for one single person there is no collection Amins in Tehsil Nainital, although there is need for many more. It appears that the position in the Hills is very different from that in plains of U.P., the patwaris in the hills was revenue official, equivalent to Lekhpal but his power were much wider since they included police powers. It appears that the position in the Hills is very different from that in plains of U.P., the patwaris in the hills was revenue official, equivalent to Lekhpal but his power were much wider since they included police powers. Hence the decision of this of court relating to Seasonal Collection Amins unlike in the plains. Hence, there is nothing "Seasonal" about the work of Seasonal Collection Amins. In fact the District Magistrate, Nainital has been repeatedly writing to the higher authorities in this connection vide annexure no. 1 and 3 to the writ petition. Similarly the Seasonal Collection peons are doing same work as regular collection peons. In view of the unrequited allegations in the petition I am of the opinion, that his petition deserves to be allowed. Since the petitioners have been performing the same work as of the regular collection Amins and regular collection peons. I direct that they shall be given the same salaries, allowances and other benefits and other facilities as regular collection Amins and collection peons, as the case may be on the Principle of equal pay for equal work. The stated Govt. is further directed to take a decision of recommendations of the District Magistrate, Nainital for certain posts, copies of which are annexure 1 and 2 of the writ petition expeditiously and till then the services of the petitioners shall be continued without any artificial break in service," 8. It has been held in writ petition no. 162 (S/S) of 2001 by his Lordship Hon'ble Mr. Justice P.C. Verma J. The following effect:- "The petitioner seeks appointment under the Dying in Harness Rules. Her Application is pending for disposal with the respondent No.1. Learned Counsel for the petitioner invited attention of this Court to the provision contained in Rules of the U.P. Collection Amin's Service Rules, 1974 which provides that the subjects/topics, which are not specifically covered under these rules, shall be governed by the rules applicable to the Government servant. On the basis of this provision, learned counsel for the petitioners submits that since the petitioner's husband was a Collection Amin and he died in Harness therefore, Dying in Harness Rules arc applicable and she is entitled for appointment. This proposition could not be disputed. On the basis of this provision, learned counsel for the petitioners submits that since the petitioner's husband was a Collection Amin and he died in Harness therefore, Dying in Harness Rules arc applicable and she is entitled for appointment. This proposition could not be disputed. Learned Counsel for the State raised an objection that the petitioners husband was a seasonal collection Amin and he was working continuously in compliance of the order passed by the High Court in case Umrao Singh and others versus District Magistrate, Nainital, as stated in the counter affidavit. Therefore being a seasonal collection Amin he does not fall within the definition of Government servant as defined under the Dying in Harness Rules. Therefore, the petitioner cannot be appointed. The petitioner's husband was appointed in the year 1988 and became eligible to be regularized as regular collection Amin in the year 1992 in view of Rule 5 of the U.P. Collection Amin Service Rules. It was alleged that the petitioner could not be considered for regularization by the authorities for which he had to file a writ petition and, accordingly the High Court passed the order for allowing the petitioner to work regularly. Under these facts and circumstances of the case, it cannot be said that the petitioner when died was not a regular Government servant and cannot be said to be a Government servant within the meaning of Government servant defined under the Dying in Harness Rules. Therefore, the writ petition is allowed. The respondent No. 1 District Magistrate, Sageshwar is directed to consider the case of petitioner for appointment under the Dying in Harness Rules within a period of one month from the date of production of certified copy of this order. No order as to costs:' 9. The law is well settled that even a daily wager is entitled for the benefit of the rule under Dying-in-Harness and therefore on the same analogy the Seasonal Collection Amins cannot be deprived from the benefit of the Dying-in-Harness Rule 1974 as under Smt. Pushp Lata Dixit Vs. Madhyamic Shiksha Parishad and others 1991 (18) ALR 509. It has been held as under :- "Hon'ble Supreme Court in a case Smt. Sushma Gosain and others, Vs. Madhyamic Shiksha Parishad and others 1991 (18) ALR 509. It has been held as under :- "Hon'ble Supreme Court in a case Smt. Sushma Gosain and others, Vs. Union of India and others [1989 (59) FLR 626 SC], held that;- It can be stated unequivocally that in all claims for appointment on compassionate grounds, there should be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is not suitable post for appointment supernumerary post should be created to accommodate the applicant:' 3. Keeping in mind that fact that the petitioner was appointed in 1973 and continuously worked in the department up to the date of his death, in my opinion it would be proper to direct the opposite parties to accommodate the petitioner in the Department. The petitioner is a widow of the deceased who died in harness, therefore, I quash the impugned order dated 20.9.1989 contained in Annexure No. 11 and direct the opposite parties to consider the question of appointment of the petitioner in accordance with her qualification and pass an order within one month from the date of receipt of this order and provide employment in accordance with her qualification:' 10. Admittedly, the husband of the petitioner expired on 1st October 1998. The petitioner has moved the application well within time. However, the representation was directed to be decided on 11th February 2000 and the same has been rejected on 17th May 2000 only on the ground that the petitioner is not covered under Dying-in-Harness Rules and as such no relief can be granted in favour of the petitioner. 11. The aforesaid view taken by respondent is wholly incorrect. The order dt. 17th May 2000 therefore having being passed without taking into consideration the principles laid down by the Apex Court with regard to the object of the Rule. 12. In view of the facts and circumstances the order dt. 17th May 2000 cannot be sustained and is liable to be quashed. The writ petition is allowed. 13. The respondents are directed to consider the same afresh. 12. In view of the facts and circumstances the order dt. 17th May 2000 cannot be sustained and is liable to be quashed. The writ petition is allowed. 13. The respondents are directed to consider the same afresh. In the light of the observation made above within a period of 3 weeks from obtaining of the certified copy of the order. There will be no order as to costs.