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2016 DIGILAW 117 (UTT)

Bimla Devi v. State of Uttarakhand

2016-03-08

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner before this Court claims appointment on regular post of Beldar in Public Works Department on compassionate grounds, as her husband who was a Beldar, according to the petitioner died while in harness on 09.07.2005. 2. In the first round of litigation, for the same relief, the writ petition of the petitioner was disposed of with a direction to the concerned authority to consider the appointment of the petitioner on a regular vacancy. The same has now been considered and has been rejected by the authority concerned. The reasons assigned in the impugned order dated 07.01.2012 is that the husband of the petitioner was not a regular employee and therefore does not come under the definition of “Government Servant” under the Dying in Harness Rules. Therefore, the claim of the petitioner cannot be sustained. Since this case has somewhat chequered history, some relevant facts need to be stated. The husband of the petitioner was initially appointed as Beldar in the year 1989 and in the same year he was given the status of work charge employee. The services of the husband of the petitioner were regularized on 05.08.1999. 3. However, the said order was cancelled vide order dated 21.04.2000. Aggrieved, the husband of the petitioner as well as similarly situated persons filed a writ petition, which was allowed and a direction was given to regularize the services of the petitioner vide judgment and order dated 25.11.2003. Against the said order, a belated Special Appeal was filed by the State in the year 2006. All the same, the delay in filing the special appeal was condoned. The Special Appeal was allowed (along with other connected appeals) vide judgment and order dated 09.01.2009 and the order of the Learned Single Judge of this Court was set aside. In short, therefore the order of regularization which stood in favour of the petitioner’s husband and other similarly situated employees was set aside by the Division Bench of this Court. Hence, in a fact, is that the husband of the petitioner was never regularized in service. Meanwhile, on 09.07.2005 the husband of the petitioner passed away. The petitioner moved an application for appointment on compassionate grounds, which was not considered, and as already referred above, she was constrained to file writ petition before this Court, which was disposed of by this Court vide judgment and order dated 18.10.2011. Meanwhile, on 09.07.2005 the husband of the petitioner passed away. The petitioner moved an application for appointment on compassionate grounds, which was not considered, and as already referred above, she was constrained to file writ petition before this Court, which was disposed of by this Court vide judgment and order dated 18.10.2011. 4. Now, vide impugned order dated 07.01.2012 the respondents have categorically stated that since the husband of the petitioner was not a regular employee therefore the petitioner is not entitled for regular selection on compassionate ground. The learned counsel for the State submits that husband of the petitioner legally cannot be termed as a regular employee, as regularization of such employees has already been held to be illegal by the Division Bench of this Court. In law, the husband of the petitioner was never a regular employee under Section 2(a) of the Government Servants Dying in Harness Rules, which reads as under :- “2. Definitions – 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. Explanation. – “Regularly appointed” means appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be ;” 5. In view of the above it is clear that the husband of the petitioner was not a permanent employee nor was his status was of a temporary employee though regularly appointed nor was he continuing in a regular vacancy, as contemplated in the above provision. Hence, he was only a work charge employee. A work charge employee by its very nomenclature is not in the regular establishment, is not working on any sanctioned post, and therefore the death of such an employee would not mean that the dependents or family members would be entitled for appointment on compassionate grounds. The claim of the petitioner cannot be sustained and it has been rightly rejected. 6. The claim of the petitioner cannot be sustained and it has been rightly rejected. 6. Having made the above determination, however, this Court is also conscious of the fact that the petitioner was initially appointed as a daily rated worker in the department itself after the death of her husband in the year 2005 and by now as the learned Counsel himself submits she is working in the work charge establishment. The writ petition stands disposed with a direction that on considerations of the past services of the petitioner, the candidature of the petitioner be considered for regular absorption in accordance with law as and when such a vacancy arises. Her vis-a-vis other employees should also be taken into consideration.