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2008 DIGILAW 186 (UTT)

PREM SINGH BORA v. STATE OF UTTARANCHAL

2008-04-28

PRAFULLA C.PANT

body2008
JUDGMENT By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 12.12.2005 (copy Annexure 3 to the writ petition), whereby petitioner’s appointment on the post of Peon, has been kept in abeyance. A mandamus has also been sought directing the respondents not to interfere in the working of the petitioner as Peon. By amendment a further writ has been sought in the nature of certiorari quashing the order dated 01.02.2007 (copy Annexure 7 to the writ petition) passed by respondent no. 2. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit. 3. Brief facts of the case are that petitioner’s father Ganga Singh Bora was a Mechanic with Mines and Minerals Department of the respondent. He died on 05.05.2004, when he was posted at Haldwani (within the territory of State of Uttarakhand). It is further stated in the writ petition that he was a permanent employee of the respondents, at the time of his death. After death of Ganga Singh Bora his family was facing a grave financial hardship and consequently the petitioner who is son of the deceased Ganga Singh Bora, moved an application for appointment on the compassionate ground. It appears that earlier he filed a Writ Petition no. 1233 of 2005 (S/S). And while said writ petition was pending the respondent no. 3 issued appointment letter dated 19.11.2005 against the post of Peon in the pay scale of Rs. 2550-55-2660-60-3200 (a copy of said appointment letter is Annexure 1 to the writ petition). It is further stated in the writ petition by the petitioner that on 30.11.2005, the petitioner in pursuance to the aforesaid appointment letter joined his duties. According to petitioner, to his utter surprise he got letter dated 12.12.2005, issued by respondent no. 3 keeping the appointment letter of the petitioner in abeyance, which is challenged before this Court. It appears that thereafter the appointment letter was cancelled and petitioner stood terminated from service by another impugned order dated 01.02.2007, passed during the pendency of this writ petition, which is also challenged by making amendment in the writ petition. 4. A counter affidavit has been filed on behalf of the respondents no. 2, 3 and 4. It appears that thereafter the appointment letter was cancelled and petitioner stood terminated from service by another impugned order dated 01.02.2007, passed during the pendency of this writ petition, which is also challenged by making amendment in the writ petition. 4. A counter affidavit has been filed on behalf of the respondents no. 2, 3 and 4. In para 4 of the counter affidavit it is admitted by the respondents that Ganga Singh Bora, father of the petitioner was a Mechanic in the office of Geology and Mining, Haldwani. It is further admitted in said para that he died while he was in service on 05.05.2004. It is also not disputed that petitioner was given appointment on 19.11.2005 against the post of Peon, after death of his father under U.P. Recruitment of Dependants of Government Servants dying in Harness Rules, 1974, as is apparent from para 5 of the counter affidavit. The ground on which the petitioner’s appointment is kept in abeyance and later cancelled and petitioner’s services are terminated, is that the petitioner’s father died before his final allocation to the successor State after division of the State of Uttar Pradesh, under U.P. Reorganisation Act, 2000. In this connection it is further stated in Para 9 of the counter affidavit that the State Advisory Committee had taken a decision that till the final allocation of deceased employee to either of the States no appointment on compassionate ground can be made. 5. But the counter affidavit is silent as to what prevented the authorities concerned from allocating the employee (Sri Ganga Singh Bora, father of the petitioner) either of the successor States. The communication made by the State Advisory Committee has no force of law under Section 73 of the U.P. Reorganization Act, 2000 as it is not an order passed by Government of India. This Court is of the view that neither a dead person could have been allocated new successor State (as against the State where he was working) nor could have a dead person joined his duties in such other successor State. As such the contention of learned counsel for the respondents is misconceived that because of non-allocation of new successor State by the Government of India to Sri Ganga Singh Bora, father of the petitioner, petitioner’s appointment could not have been considered on compassionate ground by the State of Uttarakhand. As such the contention of learned counsel for the respondents is misconceived that because of non-allocation of new successor State by the Government of India to Sri Ganga Singh Bora, father of the petitioner, petitioner’s appointment could not have been considered on compassionate ground by the State of Uttarakhand. In this connection, this Court thinks it just and proper to mention the provisions contained in Section 75 of U.P. Reorganisation Act, 2000 : “75. Provisions as to continuance of officers in same post. – (1) Every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Uttar Pradesh in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in that successor State : Provided that nothing in this section shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to such person any order affecting the continuance in such post or office.” 6. Sri B.K. Gupta, learned counsel for the respondents drew attention of this Court to Section 73 of U.P. Reorganisation Act, 2000, and argued that every person who was serving with the existing State of &Uttar Pradesh shall continue to serve the affairs of the State of Uttar Pradesh unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Uttarakhand. However, this Court is of the view that said provision does not cover the cases like the present one where the person has died after the creation of State, but before the allocation. Now seven years have passed still there is no allocation of deceased Ganga Singh Bora. 7. For the reasons as discussed above the writ petition is allowed. The impugned order dated 12.12.2005, passed by respondent no. 3 and impugned order dated 01.02.2007, passed by respondent no. 2, are hereby quashed. Now seven years have passed still there is no allocation of deceased Ganga Singh Bora. 7. For the reasons as discussed above the writ petition is allowed. The impugned order dated 12.12.2005, passed by respondent no. 3 and impugned order dated 01.02.2007, passed by respondent no. 2, are hereby quashed. The petitioner shall be treated to be in service of respondent Department on the post he is appointed vide appointment letter dated 19th November 2005 and shall be entitled to all his salary of the period of pendency of this writ petition.