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2004 DIGILAW 818 (ALL)

Prem Prakash v. State of U. P.

2004-04-15

A.N.VERMA

body2004
JUDGMENT A. N. Varma, J.—The petitioner through the instant writ petition has assailed the order dated 13.1.2003 passed by the opposite party No. 1 and as contained in Annexure-4 to the writ petition, whereby the representation preferred by him for compassionate appointment has been rejected. The facts giving rise to the petition are as follows : 2. One Mullu, son of Jokhe, grandfather of the petitioner was under employment with the opposite parties as a beldar on daily wages with effect from September, 1988 to 19th March 1999. The appointment was given to him consequent upon the death of his son Kamta, who was also on daily wages and had worked as such with the opposite parties for about 15 years. The petitioner at the time of the death of his father was only a minor. The said Mullu died on 19.3.1999 in harness. As the father of the petitioner had already predeceased his father, the petitioner was totally dependent on his grandfather. He upon the death of his grandfather, made an application before the opposite parties on 3.6.1999 for compassionate appointment under the provisions of U. P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, (hereinafter to be referred as ‘Rules’). The candidature of the petitioner was, however, rejected by the authorities concerned for compassionate appointment, he approached this Court in Writ Petition No. 735 (S/S) of 2002. The said writ petition was disposed of finally vide order dated 25.1.2002 with a direction that the representation made by the petitioner with regard to his appointment under the said Rules be considered. Pursuant to the directions given by this Court in the aforesaid writ petition, the candidature of the petitioner was considered and thereafter vide order dated 13.1.2003 the same has been rejected. It is this order rejecting his representation that has been impugned in the instant writ petition as Annexure-4. 3. I have heard learned counsel for the petitioner, Sri. R. K. Srivastava as well as learned standing counsel at some length. 4. The submission of the learned counsel for the petitioner is that since the father of the petitioner had predeceased his father, (i.e., the grandfather) he being dependent upon the deceased grandfather was entitled for compassionate appointment under the said Rules. R. K. Srivastava as well as learned standing counsel at some length. 4. The submission of the learned counsel for the petitioner is that since the father of the petitioner had predeceased his father, (i.e., the grandfather) he being dependent upon the deceased grandfather was entitled for compassionate appointment under the said Rules. The learned counsel further submitted that even though the grandfather had not worked for the prescribed period as contemplated under the Government order dated 29.2.1996 which subsequently stood rescinded, still his right of appointment flows out from the provisions of the aforesaid Rules. The argument further is that though his grandfather was a daily wager, still his case is covered under the provisions of the Rules inasmuch as that even a dependent of a daily wager is entitled for a compassionate appointment. In para 15 of the writ petition it has been stated that one Gambheera, S/o Sri Chand Deo was given a compassionate appointment under the Rules consequent upon the death of his father who was also working as a daily wager as a boatman/chaukidar and died in harness. The reply of the said para has been given in para 15 of the counter-affidavit wherein it has been stated that petitioner cannot claim equality or parity with the person mentioned in para under reply. In support of his case the petitioner relied upon a Division Bench decision of this Court in State of U. P. and others v. Rajendra Kumar and others, 1999 (83) FLR wherein it was held that even a grandson is entitled for compassionate appointment under the aforesaid Rules. 5. The learned standing counsel in opposition submitted that though the circular dated 29.2.1996 which provided for appointment of dependent of daily wager who had put in ten years of service as such as muster roll employee, stood rescinded and became inoperative in September, 2000, the grandfather of the petitioner had not even completed ten years of service which was minimum requirement in the said circular, therefore, the petitioner is not entitled for any relief under the rules and therefore, his representation for compassionate appointment has rightly been rejected. He further argued that since a grandson is not included in the word ‘family’ as defined under the Rule 2 (c) of the Rules, therefore, the petitioner is not entitled for any benefit under the Rules and as such his case has rightly been rejected for appointment. 6. The definition of word ‘family’ as occurs in Rule 2 (c) of the Rules as reproduced hereinunder : “2. Definitions : (a) ....................................... ........................... (b) ....................................... ........................... (c) “family” shall include the following relations of the deceased Government servant : (i) Wife or husband ; (ii) Sons ; (iii) Unmarried and widowed daughters.” 7. In case of State of U. P. and others v. Rajendra Kumar and others (supra), the Division Bench, relying upon the decisions of Apex Court as well as principles laid down in some English decisions interpreted the word ‘include’ as occurring in Rule 2 (c) of the Rules. In paragraphs 5 of the said report the Bench observed as follows : “5. The learned single Judge agreed with this submission and we also agree with the same. The word ‘include’ connotes that the persons mentioned in Rule 2 (c) are not exhaustive of the meaning of the word family but are only inclusive. This implies that the word ‘family’ is not limited to the persons mentioned in Rule 2 (c), but more persons can also be included in the definition of the word ‘family’ in certain respects.” 8. In case of State of Bombay and others v. Hospital Mazdoor Sabha and others, AIR 1960 SC 610 , while explaining the words used in an inclusive definition in paragraph 10 of the said report held as follows : “10. There is another point which cannot be ignored. Section 2 (j) does not define “industry” in the usual manner by prescribing what it means ; the first clause of the definition gives the statutory meaning of “industry” and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. (Vide Stroud’s “Judicial Dictionary”, Vol. 2, p. 1415). Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation.” 9. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. (Vide Stroud’s “Judicial Dictionary”, Vol. 2, p. 1415). Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation.” 9. The question as to whether or not dependent of a daily wager muster-roll employee or a work charged employee is entitled for compassionate appointment came to be considered by this Court in Santosh Kumar Mishra v. State of U. P. and others, 2002 (1) UPLBEC 337 , wherein in paragraphs 16, 17 and 18 this Court held as follows : “16. It may also be taken note of that if daily wager or a work charge employee is engaged against a particular duty or post, and that work is of perennial nature, the presumption would be that such an employee would be entitled for being treated to have been continuing against a regular vacancy. 17. In the instant case, one more redeeming feature in favour of the petitioner is that persons junior to the petitioner’s father who were regularised against regular vacancies by means of order dated 2.11.1998 but the case of the petitioner’s father was not considered and thus he was deprived the benefit of regularisation. In case, the petitioner’s father had been considered at that time, he would have been regularised before he died on 1.4.1999. Since the petitioner’s father was entitled for regularisation after putting in such a long service and his case has not been considered for reguarisation, the petitioner cannot be deprived of giving the appointment on compassionate ground because the opposite parties themselves did not consider the case of the petitioner’s father for regularisation. 18. It was also not disputed that appointments of such nature have already been given by the department earlier and the respondents State has not been able to indicate as to why the same benefit has not been given to the petitioner.” Relying upon the said decision this Court in Writ Petition No. 2007 (S/S) of 2003, Sushil Kumar Awasthi v. State of U. P. and others, decided on 12.3.2004 held that the dependents of a workcharged employee is also entitled for compassionate appointment under the provisions of the said Rules. 10. 10. While deciding the representation of the petitioner pursuant to the direction given by this Court the opposite parties have not taken note of the aforesaid legal position. It just proceeded on the assumption that since the Government order dated 29.2.1996 stood rescinded, therefore, the petitioner was not entitled for being considered for compassionate appointment under the said Rules. It also proceeded on the ground that since the grandfather of the petitioner had not completed ten years of service, therefore, he is not entitled for compassionate appointment. This approach of the opposite parties is manifestly erroneous and runs contrary to what is contemplated under the Rules and principles laid down in the aforesaid decisions. 11. In view of the above, the order dated 13.1.2003, cannot be allowed to stand. In the circumstances the writ petition succeeds and allowed. The order dated 13.1.2003 is hereby quashed. The opposite parties are directed to reconsider the candidature of the petitioner for compassionate appointment in the light of the observations made hereinabove as well as keeping, in view the principles enunciated by the decisions referred to in this judgment and order, within a period of two months from the date a certified copy of this order is served upon the said opposite parties.