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2010 DIGILAW 666 (ALL)

RAJESH v. STATE OF U. P.

2010-02-22

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Heard Sri Arvind Srivastava, learned counsel for the petitioners and learned Standing Counsel for the State-respondents. 2. Petitioners, who are two in number seek quashing of the orders dated 14th October, 2005 (Annexure-8) and that dated 25th February, 2008 (Annexure-14) passed by respondent No. 3, Executive Engineer, Nalkoop Khand-III, Allahabad. 3. The writ petition has been presented before the Court on 18th February, 2010 i.e. after more than two years of the passing of last impugned order. The Court may record that the explanation furnished for the laches in approaching this Court, i.e. after nearly five years of passing of first impugned order qua petitioner No. 1 and after two years of passing of second impugned order qua petitioner No. 2, more so when the petitioners were seeking compassionate appointment, is not satisfactory. 4. It is settled law that compassionate appointment is not a source of employment. It is provided only to mitigate against the immediate uncalled for hardship faced by the family members/dependants due to death of the bread earner. 5. This Court can understand the anxiety for appointment and has, therefore, examined the claims set up by the petitioners on merits also. 6. According to petitioner No. 1, his father was employed as part time tube-well operator, which has wrongly been mentioned in paragraph-3 of the writ petition as tube-well operator on 31st March, 1987. He expired on 18th September, 2004 during such employment. Petitioner No. 1 applied for compassionate appointment. 7. Petitioner No. 2 has not disclosed the date of initial appointment of his father, what has been stated is that his father has expired, while working as Tube-well operator on 27th July, 2007. Petitioner No. 2 also made an application for compassionate appointment. 8. Application made by petitioner No. 1 was rejected vide order dated 23rd September, 2005. He approached this Court earlier by means of Civil Misc. Writ Petition No. 61318 of 2005. This writ petition was disposed vide order dated 16th September, 2005 requiring the Executive Engineer, Nalkoop Khand-III, Allahabad to consider the claim of the petitioner in light of the judgment of this Court in the case of Vinay Kumar v. State of U.P. and others, passed in writ petition No. 53931 of 2001. Writ Petition No. 61318 of 2005. This writ petition was disposed vide order dated 16th September, 2005 requiring the Executive Engineer, Nalkoop Khand-III, Allahabad to consider the claim of the petitioner in light of the judgment of this Court in the case of Vinay Kumar v. State of U.P. and others, passed in writ petition No. 53931 of 2001. The Executive Engineer under the order dated 14th October, 2005 considered the matter, and recorded that recital in the order obtained by the petitioner from the Hon’ble High Court to the effect that his father was employed as work charge employee, was factually incorrect. It has been noticed that the father of the petitioner was appointed for the first time on 1st April, 1987 as part time tube-well operator on fixed pay of Rs. 299/- per month. On 7th April, 1992, another order was passed offering appointment to the father of the petitioner as part time tube-well operator on fixed pay of Rs. 550/-. It has been specifically recorded that under the said appointer letter the father of the petitioner was required to work only two and half hours every day and for the remaining period of the day, he was free to engage himself elsewhere. It has been noticed that the claim of the petitioner was earlier rejected with reference to the Government Order dated 26th October, 1998, which specifically provides as follows : Þe`rd vkfJr lsok fu;ekoyh 1974 esa va'kdkyhu lsodksa ds vkfJrksa dks lsok;ksftr fd;s tkus dh dksbZ O;oLFkk ugha gSA vr% fu;ekoyh ds rgr va'kdkyhu uydwi pkyd ds e`rd vkfJr dks lsok;ksftr ugha fd;k tk ldrk gSAÞ 9. The order refers to the Division Bench Judgment of this Court passed in Special Appeal No. 117 of 2000 (State of U.P. and another v. Smt. Phoola Devi) dated 14th July, 2000, wherein it has specifically been held that the dependants of a part time tube-well operator are not entitled for compassionate appointment. 10. Petitioner No. 2 has been refused compassionate appointment vide order dated 25th February, 2008 passed by Executive Engineer. It has been recorded that there is no provision for any compassionate appointment being offered to the dependants of part time tube-well operator. 11. Learned counsel for the petitioner challenges the aforesaid orders on the ground that the Hon’ble Single Judge in Civil Misc. It has been recorded that there is no provision for any compassionate appointment being offered to the dependants of part time tube-well operator. 11. Learned counsel for the petitioner challenges the aforesaid orders on the ground that the Hon’ble Single Judge in Civil Misc. Writ Petition No. 38912 of 2004 decided on 10th March, 2008 has held that dependants of part time tube-well operator are also entitled for compassionate appointment in view of the law laid down by this Court in the case of Daroga Prasad Singh Yadav v. District Magistrate, Ballia and another, 2007(2) ADJ 213 . Learned counsel for the petitioner further points out that under the Government Order dated 3rd March, 1998, part time tube-well operators have been directed to be paid annual increments and house rent allowances as are applicable to regular tube-well operators and therefore, the part time tube-well operators are also liable to be treated at par with Tube-well operators and their dependants are also entitled for compassionate appointment. He refers to the judgment of the Hon’ble Supreme Court of India in Special Leave to Appeal No. 16291 of 1992 decided on 22/23rd January, 1995. 12. Reliance has also been place upon the Division Bench judgment of this Court in the case of State of U.P. and others v. Smt. Malti Devi, 2006(1) ESC 316 and Daroga Singh (supra). 13. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition. 14. It is surprising to note that despite there being a reference to the Government Order dated 26th October, 1998, in the order impugned dated 14th October, 2005, which specifically prohibits compassionate appointment being offered to part time tube-well operators. Petitioner No. 1 has neither chosen to challenge the said Government Order or to bring on record a copy of the judgment of the Division Bench of this Court passed in Special Appeal No. 117 of 2000 decided 14th July, 2000, wherein the claim of dependants of part time tube-well operators for compassionate appointment has been negated by this Court. Petitioner No. 1 has neither chosen to challenge the said Government Order or to bring on record a copy of the judgment of the Division Bench of this Court passed in Special Appeal No. 117 of 2000 decided 14th July, 2000, wherein the claim of dependants of part time tube-well operators for compassionate appointment has been negated by this Court. The Division Bench judgment of this Court is directly on the point involved in the present writ petition and yet neither the counsel nor the petitioner made any reference to the said Division Bench judgment of this Court, nor tried to suggest that the judgment is no more a good law. Reference to other judgments delivered in matters pertaining to temporary employees/seasonal collection amins etc. alone are referred. Such practice cannot be approved off by this Court. If there is judgment of the Division Bench of this Court directly on the point, it must be referred to at the time of making the submissions and in absence thereof the Single Judge cannot hold otherwise. 15. It is not the case of the petitioner that the recital in the impugned order that the Division Bench of this Court has held that the dependants of part time tube-well operators are not entitled for compassionate appointment is incorrect nor any such case is pleaded by the learned counsel for the petitioner. This Court has no other option but to hold that in view of the Division Bench judgment of this Court passed in Special Appeal No. 117 of 2000, the authorities are legally justified in recording a finding that the dependants of part time tube-well operators are not entitled for compassionate appointment. 16. This Court in the case of State of U.P. v. Malti Devi (Supra) dealt with the case of an employee, who had been working as Beldar for 21 years and thereafter the Court having regard to the definition of Government Servant, held that the answered the description of temporary employee. This Court fails to understand as to how the said judgment has any application in the facts of the present case, specifically when there is a categorical recital in the impugned order that the father of petitioner No. 1 was engaged on a fixed pay of Rs. This Court fails to understand as to how the said judgment has any application in the facts of the present case, specifically when there is a categorical recital in the impugned order that the father of petitioner No. 1 was engaged on a fixed pay of Rs. 550/- for a period of three years, as part time tube-well operator for performing duties for two and half hours every day only with a further liberty to work elsewhere for the remaining part of the day. 17. So far as the judgment of this Court in the case of Daroga Singh (Supra) is concerned, this Court may record that it deals with the seasonal collection amins who were entitled to be regularized under the provisions of U.P. Collection Amins Act, 1974 and it is in that background that the Hon’ble Single Judge directed the consideration of the claim for compassionate appointment of dependants of seasonal collection amins. 18. The Hon’ble Supreme Court in Special Leave to Appeal No. 16291 of 1992 upheld the judgment of the Hon’ble High Court, affirming the award of the Labour Court, therein part time tube-well operator was held entitle to similar benefits as available to regular tube-well operator because of his discharging similar duties. The findings of the tribunal on facts were based on evidence led before it. No law biding upon the Courts under Article 141 of the Constitution of India has been laid down. The judgment of the Hon’ble Supreme Court is clearly distinguishable. 19. Learned counsel for the petitioner has also made reference to the Regularisation Rules enforced in the year 2008 qua part time tube-well operators. 20. Such rules contemplate that regularization is to be offered to the tube-well operator who were appointed upto 30th June, 2008 and were in continuous service on the date of enforcement of Regularisation Rules, 2008. 21. Admittedly the employee qua whom compassionate appointment is being claimed by the petitioner expired prior to the enforcement of regularization rules and therefore, there is no question for their case being considered for regularization. 22. In the totality of the circumstances, as noticed herein above, this Court finds no good ground to interfere with the impugned orders. The present writ petition is accordingly dismissed. ———