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2010 DIGILAW 1243 (ALL)

SURESH BABU v. STATE OF U. P.

2010-04-19

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Prakash Padia, learned counsel for the petitioner and the learned Standing Counsel Sri S.K. Mishra who prays that the respondents want further two weeks’ time to file a response to the order dated 30.3.2010. 2. This matter is pending for the past 16 years and two counter affidavits have been filed on behalf of the State, one by Mr. Ghanshyam Singh which was served on the learned counsel for the petitioner on 2.12.1994 and second counter affidavit sworn by Sripati Prasad which has been served on the learned counsel for the petitioner on 26.7.1995. In view of the affidavits which have already been filed on record, the only query made by the Court on 30.3.2010 was with regard to the judgment which has been brought on record through the supplementary affidavit dated 4.5.2007 in the case of Lala Ram v. State of U.P. and others, decided on 4.5.2007. 3. Learned Standing Counsel, therefore, states that time may again be granted for ascertaining the instructions thereon. 4. In my opinion, the pendency of this writ petition for the past 16 years and the filing of two affidavits on behalf of the respondents and time already having been granted on 30th March, 2010, there is no necessity of accepting the request of the learned Standing Counsel. The petitioner’s counsel has brought on record the judgment of this Court which may not require any further verification. Accordingly, this Court is proceeding to decide the case finally. 5. The petitioner was appointed under the compassionate appointment rules known as U.P. Recruitment of Dependants of Government Servants (Dying in Harness) Rule, 1974 as a Farm Clerk on 30.11.1987 as his father Kishan Singh died in harness while working as a Reserve Warder in the District Jail, Muzaffarnagar. This compassionate appointment continued for about 7 years when on 19th September, 1994 the services of the petitioner were dispensed with on the ground that the post against which the petitioner had been appointed is no longer available inasmuch as the same had fallen vacant due to the promotion of Lala Ram who has now been reverted to the said post. The said order was challenged and an interim order was passed on 1.12.1994 that in case the post is vacant the petitioner may be permitted to continue on the post in question inasmuch as Lala Ram had already filed a writ petition and an interim order was passed in his favour. Two counter affidavits as indicated above have been filed. For reasons best known to the respondents both the counter affidavits indicate the respondents helplessness in continuing the petitioner on the post in question on the ground that the post was not available due to the reversion of Lala Ram the earlier incumbent on the said post. The second counter affidavit also indicates that the petitioner was offered an alternative employment as a Junior Assistant keeping in view his status of a compassionate appointee but the petitioner did not accept the request and instead filed this writ petition. 6. Sri Padia, learned counsel for the petitioner contends that the post which the petitioner was offered was on compassionate basis and it has been held in a series of decisions of this Court that an appointment on compassionate basis is a permanent appointment which cannot be terminated in the manner in which it has been done by the respondents. He further submits that even if Lala Ram had been reverted back the respondents were duty bound to appoint the petitioner against a permanent post. Sri Padia further contends that the impugned order was passed without giving any notice or opportunity to the petitioner and the same is in violation of principles of natural justice and thirdly once Lala Ram had already filed a writ petition and an interim order was passed by the Lucknow Bench of this Court there was no occasion to terminate the services of the petitioner. 7. Learned Standing Counsel on the other hand contends that the petitioner cannot claim the same post, and he had been offered an alternative employment inasmuch as the post could not be filled up due to the reversion of Lala Ram. In rejoinder Sri Padia submitted that the supplementary affidavit which has been filed bringing on record the judgment in the case of Lala Ram clearly indicates that the writ petition filed by Lala Ram had been allowed and the reversion has been set aside. In such a situation the very basis of the contention raised in the counter affidavit vanishes. 8. In such a situation the very basis of the contention raised in the counter affidavit vanishes. 8. I have heard learned counsel for the parties and perused the affidavits. 9. The contention with regard to the status of appointment of a compassionate claimant is covered by the Division Bench decision in the case of Yogendra Ram Chaurasia v. State of U.P., (2002) 5 AWC 3708. The petitioner, therefore, could not have been thrown out of employment or given an alternative employment against a lower post. Secondly, the said order of termination of the services of the petitioner could not have been passed without giving any notice or opportunity. The third contention has also to be accepted inasmuch as the writ petition filed by Lala Ram has already been allowed. Respondents had already filed counter affidavits and after 16 years are praying again for further time for which there is no justification. 10. Accordingly on all three counts the writ petition has to succeed. The order impugned dated 19.9.1994 as communicated to the petitioner vide letter dated 6.10.1994 is quashed. Petitioner shall be treated to have been continuing on the post in question and he shall be entitled to all consequential benefits. 11. The writ petition is accordingly allowed. No order as to costs. —————