Research › Search › Judgment

Uttarakhand High Court · body

2010 DIGILAW 202 (UTT)

KUMARI USHA SAXENA v. DIVISIONAL FOREST OFFICER

2010-04-13

TARUN AGARWALA

body2010
JUDGMENT Heard Shri Siddhartha Bisht, the learned counsel for the petitioner and Shri Subhash Upadhyaya, the learned Brief Holder for the respondents. 2. The petitioner’s father was working as a Class-IV employee in the Forest Department and, after putting in 30 years of service, died in harness on 1st June, 2005. The deceased left behind his wife and two unmarried daughters including the petitioner. The financial conditions of the deceased family was in penurious state of affairs and, accordingly, the petitioner moved an application on 18th June, 2005 before the authority for appointment on compassionate grounds. This application remained pending and, considering the urgency of the matter, the petitioner approached the writ court by filing a writ petition in October, 2005 which was entertained and the respondents were directed to file a counter affidavit. The petitioner prayed for a writ of mandamus commanding the respondents to appoint the petitioner according to her qualification under the relevant Dying in Harness Rules. 3. The respondents have filed a counter affidavit and have admitted that the petitioner’s father worked on a daily wage basis for 30 long years and that he was regularized by an order dated 5th February, 2004. The respondents, however, submitted that the petitioner’s father refused to accept the order of regularization and did not join and, consequently, remained a daily rated employee and eventually died as a Daily rated employee. The respondents contended that the dependant of a Government servant who was regularly appointed could be considered for appointment on compassionate grounds under the relevant Dying in Harness Rules. The respondents contended that since the petitioner’s father was not a regularly appointed employee and had only worked as a daily rated employee, the petitioner was not entitled for any appointment on compassionate grounds. In support of his submission, the learned Brief Holder has placed reliance upon a decision of the Division Bench in the case of State of Uttarakhand & others Vs. Smt. Brijesh Kumari in Special Appeal No. 153 of 2006 decided on 12.09.2008, which will be considered hereinafter. 4. From the aforesaid, the admitted facts which can be culled out safely is, that the petitioner’s father worked uninterruptedly for 30 years and died in harness on 1st June, 2005. Further, the deceased left behind his wife and two unmarried daughters. Smt. Brijesh Kumari in Special Appeal No. 153 of 2006 decided on 12.09.2008, which will be considered hereinafter. 4. From the aforesaid, the admitted facts which can be culled out safely is, that the petitioner’s father worked uninterruptedly for 30 years and died in harness on 1st June, 2005. Further, the deceased left behind his wife and two unmarried daughters. On the face of it, the financial condition of the deceased family was penurious which demanded immediate consideration for appointment on compassionate ground. 5. Before proceeding further, it would be relevant to peruse Rule 5 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as ‘Rules of 1974’) which, for facility, is extracted below : [5. Recruitment of a member of the family of the deceased. – (1) In case a Government Servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person – (i) fulfils the educational qualifications prescribed for the post, (ii) is otherwise qualified for Government service, and (iii) makes the application for employment within five years from the date of the death of the Government servant : Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death]. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death]. [(3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall ‘upkeep those other family members of the deceased Government Servant who are incapable for their own maintenance and were dependent of the abovesaid deceased Government servant immediately before his death.] 6. A perusal of the aforesaid Rules indicates that the dependant of a Government servant, who dies in harness, could be given a suitable employment in government service subject to fulfilling the education qualifications, etc. “Government servant” has been defined under Rule 2 of the Rules of 1974. For facility, the said provision is extracted hereunder:- “2. Definition. – In these rules, unless the context otherwise requires : (a) “Government servant” means a Government servant employed in connection with the affairs of Uttar Pradesh who – (i) Was permanent in such employment; or (ii) Though temporary had been regularly appointed in such employment; or (iii) Though not regularly appointed, had put in three years’ continuous service in regular vacancy in such employment.” 7. The aforesaid definition of a Government servant indicates that the Government servant must be employed in a permanent or in a temporary capacity and, if not regularly appointed, the Government servant must have put in three years of continuous service in a regular vacancy in such employment. 8. The petitioner was a daily wager and was regularized in the year 2004. Consequently, sub-clause (i) of Rule 2(a) would come into picture, namely, that he was employed in a permanent capacity. It has been alleged by the respondents that the petitioner’s father did not accept the order of regularization and he continued to work as a Daily Wager. In that scenario, sub-clause (iii) of Rule 2(a) would come into effect, namely, though not regularly appointed, had put in three years of continuous service in regular vacancy. The reasoning adopted is on account of the fact that a person who had worked for 30 years continuously indicates that the work was of a perennial nature and was not intermittent in nature and, in that light, there would be a deemed presumption that the daily wager was working in a regular vacancy or in a substantive vacancy. In Santosh Kumar Mishra Vs. In Santosh Kumar Mishra Vs. State of U.P. and others [(2002) 1 UPLBEC 337], the Court while considering the matter of daily wager and the appointment of dependant on compassionate grounds held :- “16. It may also be taken note of that if daily wager or a workcharge 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.” 9. The aforesaid judgment is squarely applicable to the present facts and circumstances of the case. Similarly, in Meena Devi Chaudhary (Smt.) Vs. Chief Engineer, U.P. Public Works Department, Lucknow and others [(2000) 2 UPLBEC 1421, the Court while considering the case of the daily wager who died in harness, held that a daily wager who worked continuously and was being paid in the regular pay scale, would be treated as a Government servant contemplated under Rule 2 of the Rules of 1974 and that the dependant would be entitled for consideration on compassionate appointment. In Saroj Devi (Smt.) Vs. State of U.P. and others [(1999) 2 UPLBEC 1404], the Court while considering the case of a casual or adhoc employee held that if a person worked for a long period against a substantive vacancy, his dependant would be considered for appointment on compassionate grounds. 10. The decision of the Division Bench in the case of Smt. Brijesh Kumar (supra) cited by the learned Brief Holder is distinguishable, in as much as, there was no finding that the daily wager was working against a regular vacancy. In the present case, the petitioner would be deemed to be working against a vacancy simply on account of the fact that he had worked continuously for 30 long years and doing the work which was perennial in nature. 11. The court finds that the petitioner was also regularized by the respondents by an order dated 05.02.2004 pursuant to the directions of the Supreme Court in the case of State of U.P. and others Vs. Putti Lal (2006) 9 SCC 337, wherein the Supreme Court directed the respondents to regularize the services of the daily wagers who had been working continuously. The regularization order clearly indicates that the petitioner was being absorbed in a permanent capacity. Putti Lal (2006) 9 SCC 337, wherein the Supreme Court directed the respondents to regularize the services of the daily wagers who had been working continuously. The regularization order clearly indicates that the petitioner was being absorbed in a permanent capacity. The order of regularization makes it clear that the petitioner’s father had been working on a substantive vacancy. 12. In the light of the aforesaid, this Court is of the opinion that the petitioner is entitled to be considered for appointment on compassionate grounds under the Rules of 1974. The writ petition is allowed. A writ of mandamus is issued to the respondents to consider the application of the petitioner for appointment on compassionate grounds in the light of the observations made aforesaid and pass a reasoned and speaking order within three months from the date of the production of a certified copy of the order.