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2012 DIGILAW 1681 (ALL)

BRIJESH KUMARI v. STATE OF U. P.

2012-07-27

V.K.SHUKLA

body2012
JUDGMENT Hon’ble V.K. Shukla, J.—Petitioner has rushed to this Court questioning the validity of the order dated 14.6.2012 wherein appointment of the petitioner made under Uttar Pradesh Recruitment of Dependent of Government Servants Dying in Harness Rules, 1974 has been cancelled on the ground that petitioner’s claim was not falling within the parameter of the aforesaid Rules. 2. Brief background of the case, as is reflected that petitioner’s husband had been working on daily wage basis on the post of Clerk. Petitioner’s husband had filed Civil Misc. Writ Petition No. 43127 of 2001 and this Court gave direction for ensuring minimum pay-scale and dearness allowance. Petitioner’s husband continued on minimum pay-scale and thereafter he died in harness on 19.1.2009. This is accepted position that during his continuance in service, his service has never been regularized and after the death of her husband, petitioner had applied for grant of compassionate appointment and thereafter petitioner had in fact been offered compassionate appointment on 20.2.2009 and thereafter she joined and had been performing and discharging duties and thereafter her services has been dispensed with on 14.6.2012. Petitioner at this juncture has rushed to this Court. 3. Sri R.C. Shukla, learned counsel for the petitioner contended with vehemence that in the present case petitioner has rightly been offered appointment on compassionate basis and said appointment in question had been arbitrarily cancelled without providing any opportunity of hearing, as such writ petition deserves to be allowed. 4. Countering the said submission Sri Manu Saxena, Advocate representing respondents on the other hand contended that petitioner’s appointment is dehors the statutory rules and said situation is fully reflected from the fact stated by petitioner herself, as such that petitioner legitimately can have no grievance. 5. After respective arguments have been advanced, factual situation which has so emerged that petitioner’s husband was working on Class III post on daily wage basis and an order was passed by this Court in the writ petition filed by her husband that husband of petitioner shall be paid minimum pay-scale and dearness allowance and accordingly her husband has been paid minimum pay-scale. Accepted position is that at no point of time service of husband of the petitioner has ever been regularized he died in the said capacity on 19.1.2003. Accepted position is that at no point of time service of husband of the petitioner has ever been regularized he died in the said capacity on 19.1.2003. Petitioner had applied for grant of compassionate appointment and she has been offered appointment then respondents realizing this fact that she is not at all entitled to be offered appointment, her appointment has been cancelled accordingly. This Court has proceeded to examine the claim of the petitioner and has found that claim of the petitioner is not at all legally admissible and sustainable for being offered appointment under Uttar Pradesh Recruitment of Dependent of Government Servants Dying in Harness Rules, 1974 as petitioner’s husband was daily wager and was being paid minimum pay-scale and dearness allowance under the order of this Court and he was not at all falling with the definition of employee as is provided for under Uttar Pradesh Recruitment of Dependent of Government Servants Dying in Harness Rules, 1974. 6. Apex Court in the case of General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, 2009(7) SCC 205 , while considering the matter of compassionate appointment clearly took the view that daily wagers and work charge employee do not fall within the scope and ambit of employee entitled to be considered for grant of compassionate appointment and in the paragraph 19 of the said judgment it was clarified that it is one thing to say that services of work charge should be directed to be regularised, but it is another thing to say that they were not absorbed in the permanent cadre till their death in harness and their dependents are not at all entitled to invoke right as grant of compassionate appointment has its own limitation. 7. Full bench of this Court in the case of Pawan Kumar Yadav v. State of U.P. and others, 2010 (5) ESC 3025, in paragraph 26 has completely ruled that dependent of daily wager or work charge employee do not hold any post either substantive or temporary and are not appointed against any regular vacancy and are not entitled to appoint on compassionate ground. Said full bench judgment still holds the field and keeping in view of the nature of work charge establishment and nature of work charge employee, it cannot be said that they are holding any post either substantive or temporary, and by no stretch of imagination incumbent working in the work charge establishment can be dubbed to be Government servant within the meaning of sub-rule 2(a) of Rules, 1974 and thus dependent on his death are not entitled for grant of compassionate appointment. Here also engagement of petitioners husband was that of daily wager and he was not holding any post either substantive or temporary as such he cannot be accepted and dubbed as Government servant within the meaning of sub Rule 2(a) of Rules, 1974. In view of this, once such is that factual situation that appointment of the petitioner was not at all covered under the provision of U.P. Recruitment of Dependent of Government Servants Dying in Harness Rules, 1974 and petitioner has been incorrectly appointed and now said appointment has been cancelled then in view of this, this Court will not come to the rescue of the petitioner merely on the ground that no opportunity has been provided for as any interference will amount to perpetuation of illegality and on admitted position providing of opportunity is of no consequence. Consequently present writ petition is dismissed.