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2010 DIGILAW 3257 (ALL)

State of U. P. & Others v. Jainendra Kumar

2010-10-21

KASHI NATH PANDEY, SUNIL AMBWANI

body2010
Kashi Nath Pandey, J.:- The Special Appeal has been filed with a delay of 49 days. In the application for condonation of delay supported by the affidavit of Shri Manik Chand, Assistant Engineer, Provincial Division, P.W.D. Fatehpur, the delay has been explained to be spent in obtaining sanction of the State Government in filing the Special Appeal. No counter affidavit has been filed to the delay condonation application. 2. No one appears for the respondent-petitioner in the revised call. The delay condonation application is allowed. The registry will give regular number to the Special Appeal. 3. We have heard learned Standing Counsel for the State of UP-the appellant. 4. The petitioner-respondent's father was serving as work charge employee with the respondents. He died in harness on 24.8.2005. The petitioner-respondent's application for compassionate appointment was rejected on 28.10.2005 in view of the Government Order dated 29.1.2003 on the ground that the provisions of the Recruitment of the Dependents of Government Servant (Dying-in-Harness) Rules, 1974 are not attracted in the case of daily wagers/work charged employees. 5. Following the judgments in Smt. Pushpa Lata Dixit; Santosh Kumar and Anju Mishra which were referred to a Larger Bench, the writ petition was disposed of on 1.2.2006 by a conditional order that the respondents were directed to consider the petitioner for appointment subject to the decision of the reference made in Pawan Kumar Yadav's case on 9.3.2005. 6. The reference in Pawan Kumar Yadav vs. State of UP (Writ Petition No. 15505/2005) has been decided by a Full Bench on 22.9.2010 in which both of us were parties. The Full Bench held in paragraph-26 as follows:- "26. On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra), we answer the questions posed as follows:- "1. A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a 'Government servant' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules. 2. The judgements in Smt. Pushpa Lata Dixit Vs. 2. The judgements in Smt. Pushpa Lata Dixit Vs. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi Vs. State of U.P. (Writ Petition No.24231 of 1998 decided on 2.3.1998); State of U.P. Vs. Maya Devi (Special Appeal No.409 of 1998); Santosh Kumar Misra Vs. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615; and Anju Misra Vs. General Manager, Kanpur Jal Sansthan (2004) 1 UPLBEC 201 giving benefit of compassionate appointment to the dependants of daily wage and workcharge employee have not been correctly decided." 7. The father of petitioner-respondent was serving as a work charged muster roll Beldar. He was not on the permanent muster roll and was not holding any post on the date when he died on 24.8.2005. In view of the questions decided by the Full Bench, the petitioner-respondent was not eligible to be considered for compassionate appointment under the Rules of 1974. 8. The Special Appeal is allowed. The judgment dated 1.2.2006, which is even otherwise conditional depending upon the answer of the reference in Pawan Kumar Yadav's case, is set aside. If the appointment was offered, the same shall be cancelled. The benefits, however, if drawn out of such appointment shall not be withdrawn.