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2016 DIGILAW 747 (ALL)

Vandana v. State of U. P.

2016-03-01

RITU RAJ AWASTHI

body2016
JUDGMENT Ritu Raj Awasthi, J. 1. Heard learned counsel for petitioner as well as the learned Additional Chief Standing Counsel and perused the records. 2. The writ petition has been filed seeking suitable order or direction in the nature of mandamus commanding the opposite parties to appoint the petitioner on a suitable post under U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 (hereinafter referred to as 'Dying-in-Harness Rules') on compassionate ground. 3. As per the facts of the case as indicated by the petitioner's counsel, the State Government vide G.O. dated 17.9.1986 had sanctioned certain posts of Investigator-cum-Computer in the department of Animal Husbandry. After following the due procedure, as prescribed in this regard, the husband of the petitioner late Kirti Prakash was selected/appointed on the post of Investigator-cum-Computer and had joined on 20.2.1987, however services of the petitioner along with other persons were abruptly terminated without affording any opportunity of hearing. Being aggrieved a writ petition no. 1760 (S/S) of 1987 was filed in this regard wherein the Court was pleased to grant interim relief in favour of husband of the petitioner and some other persons and in compliance thereof they were allowed to continue in service. The said writ petition was allowed vide judgment and order dated 8.11.2005 with the observations that the petitioner's husband and other persons who were duly selected and appointed against the newly created/sanctioned posts shall be allowed to continue as their cancellation of appointment was against the principles of natural justice. 4. It is submitted that the petitioner's husband had worked in the office of opposite party no. 4 till 16.11.2009 with an unblemished service record of 23 years but unfortunately the petitioner's husband had died on 16.11.2009 in an accident due to which the petitioner along with her two minor daughters were left without there being any bread earner in the family. 5. The contention raised by learned counsel for petitioner is that the petitioner is fully covered under the Dying-in-Harness Rules, as such she is entitled to be considered for compassionate appointment. The claim of the petitioner for compassionate has not been considered by the opposite parties till date. 6. 5. The contention raised by learned counsel for petitioner is that the petitioner is fully covered under the Dying-in-Harness Rules, as such she is entitled to be considered for compassionate appointment. The claim of the petitioner for compassionate has not been considered by the opposite parties till date. 6. The learned Additional Chief Standing Counsel appearing for the opposite parties, on the other hand, on the basis of counter affidavit, submitted that husband of the petitioner late Kirti Prakash was appointed on a fixed salary, and as such the petitioner is not entitled for compassionate appointment under the Dying-in-Harness Rules. 7. It is further submitted that husband of the petitioner was allowed to continue in service on the basis of an interim order granted in Writ Petition No. 1760 (S/S) of 1987 and no benefit of continuity of service can be given for the purpose of compassionate appointment. 8. I have considered the submissions made by the parties' counsel and gone through the records. 9. This Court vide judgment and order dated 8.11.2005 passed in Writ Petition No. 1760 (S/S) of 1987; Kirti Prakash & others Vs. State of U.P. & others and other connected matters, while allowing the writ petition has held as under: "It has been admitted by the parties that the petitioners were appointed after calling their names from the Employment Exchange and direct recruitments procedure was following. They were duly selected and appointed on the post of Investigators-cum-Computers. A Government Order dated 17.9.1986 reveals that posts were duly created and the other documents reveal that the petitioners were duly selected and appointed on the above mentioned posts. They have worked in the department and performed the duties and responsibilities of the post. Suddenly their services were terminated by the order dated 27.7.1987 without affording opportunity of hearing. The principles of natural justice have not been followed. This Court has already stayed the operation of the orders, cancelling the appointments of the petitioners. The petitioners have continued in the services for the last 19 years. In view of the facts and circumstances of the case, this Court is of the opinion that the cancellation of appointment is violative of the principles of natural justice. The writ petitions are allowed. The consequences shall follow. However, it is made clear that this Court has not dealt with the revision of pay scale or claim of higher pay scale etc. The writ petitions are allowed. The consequences shall follow. However, it is made clear that this Court has not dealt with the revision of pay scale or claim of higher pay scale etc. It has only adjudicated the main issues in the writ petitions regarding the cancellation of appointment of the petitioners." 10. It was in compliance of the Court's interim order dated 27.3.1987 passed in Writ Petition No. 1760 (S/S) of 1987 that the petitioner along with similarly situated others was allowed to continue on the post of Investigator-cum-Computer.The final judgment & order dated 8.10.2005 has not been challenged and it has attained finality. 11. It is not in dispute that the petitioner's husband had died in harness on 16.11.2009 while in service. It is also not disputed that the petitioner's husband late Kirti Prakash has left behind petitioner as well as two minor daughters. It is also not disputed that there is no bread earner in the family of late Kirti Prakash. 12. In the counter affidavit filed by the opposite parties, it is the admitted case that the husband of the petitioner along with other persons was appointed against the sanctioned posts of Investigator-cum-Computer which were duly sanctioned vide Government Order dted 17.9.1986. It is also admitted by the opposite parties in the counter affidavit that appointment of late Kirti Prakash on the post of Investigator-cum-Computer was temporary in nature. 13. Rule 2 of U.P.Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, provides the definitions wherein the Government servant has been defined 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; of (iii) though not regularly appointed, had put in three years continuous service in regular vacancy in such employment." 14. As such it is manifestly clear that for the purpose of application of Dying-in-Harness Rules, the deceased employee i.e. deceased government servant, shall either be permanently appointed or temporary in service though regularly appointed or though not regularly appointed, has continued in service for more than three years in regular vacancy. 15. In the present case the deceased government servant had continued in service for approximately 23 years. 15. In the present case the deceased government servant had continued in service for approximately 23 years. His appointment was made against regular sanctioned post, although on a fixed pay. 16. As such, I am of the considered view that in the given facts of the case the appointment of late Kirti Prakash, though on a fixed pay and in a particular scheme, would he covered under the definition of "Government Servant" for the purpose of application of Dying-in-Harness Rules, 1974. Late Kirti Prakash could, in fact, be treated as a temporary employee working against a regular vacancy and though temporary employee but regularly appointed against a regular post. 17. In view of above, I am of the view that the petitioner is entitled to be considered for compassionate appointment under the Dying-in-Harness Rules, 1974 and the opposite parties shall pass appropriate orders in this regard. 18. The writ petition, as such, is allowed. 19. The opposite party no. 2/Director, Animal Husbandry, Lucknow, shall consider the case of the petitioner for compassionate appointment under the Dying-in-Harness Rules and pass appropriate orders in accordance with law expeditiously, say, within a period of three months from the date a certified copy of this order is produced before him. 20. In case the death-cum-retiral benefits of the husband of the petitioner late Kirti Prakash have not been finalized, the same shall also be finalized and paid to the legal heirs of late Kirti Prakash in accordance with law during this period.