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2018 DIGILAW 2451 (ALL)

ANIL KUMAR GUPTA v. STATE OF U. P.

2018-12-04

RAJESH SINGH CHAUHAN

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JUDGMENT Hon’ble Rajesh Singh Chauhan, J.—Heard Sri Rakesh Kumar Srivastava, learned counsel for the petitioner and Dr. Udaivir Singh, learned Additional Chief Standing Counsel for the State-respondents. 2. By means of this petition the petitioner has assailed the order dated 23.9.2000 passed by the Executive Engineer, Sarya Nahar Khand-8, Bahraich, opposite party No. 5 whereby the appointment of the petitioner was denied on the pretext that the U.P. Recruitment of Dependant of Government Servants Dying in Harness Rules, 1974 are not applicable upon the employees of work-charge establishment. Learned counsel for the petitioner at the outset submitted that he had filed Writ Petition No. 1239(S/S)2001 challenging the same impugned order but since he had not arrayed the proper parties in the writ petition, therefore, he requested that said writ petition be dismissed and he be granted liberty to file a fresh writ petition. This Court vide order dated 3.3.2005, which is contained in Annexure 6 to the writ petition, was pleased to dismiss the writ petition as withdrawn granting the liberty to the petitioner to file a fresh writ petition. Thereafter the petitioner filed present writ petition wherein affidavits have been exchanged. 3. The brief facts of the case are that the father of the petitioner, namely Sri Sant Ram was working as Beldar in the work charge establishment in the office of Executive Engineer, Sarya Nahar Khand-8, Bahraich w.e.f. 8.8.1977. Further, when the father of the petitioner was working as Beldar in the work charge establishment in the office of Executive Engineer, Saryu Nahar Khand-9, Bahraich, he died on 3.1.1999 during the course of his employment leaving four legal heirs i.e. (i) Smt. Vidyawati (widow), (ii) Anil Kumar Gupta (petitioner/son), (iii) Suneel Kumar Gupta (son), (iv) Km. Anita Gupta (Daughter). Learned counsel for the petitioner has enclosed the succession certificate as Annexure 3 to the writ petition. The petitioner being the eldest son of the deceased Sant Ram applied for appointment on compassionate grounds under Dying in Harness Rules, 1974 in the office of respondent No. 5 and his claim was rejected on the ground that the father of the petitioner was working in the work charge establishment, therefore, the appointment under Dying in Harness Rules may not be provided. 4. 4. Learned counsel for the petitioner has drawn attention of this Court towards Annexure 2 to this writ petition which is an order dated 23.9.1998 whereby the services of the father of the petitioner were regularized. In compliance of the aforesaid regularization order the father of the petitioner was to submit his joining in the office of Executive Engineer, Saryu Drainage, Khand-2, Balrampur within a month but he (father of the petitioner) was not relieved from Bahraich for more than one month and thereafter he submitted his joining before the competent authority at Balrampur on 11.11.1998 but the authority concerned at Balrampur refused to take joining of the father of the petitioner at Balrampur for the reason that more than one month has lapsed from 23.9.1998, order of regularization, therefore, the father of the petitioner was directed to go back to Bahraich. Learned counsel for the petitioner has drawn attention of this Court towards Annexure 2A which is an order dated 12.11.1998 indicating the reason as to why the father of the petitioner was not permitted to submit his joining. In this letter the Executive Engineer, Balrampur addressed to the Executive Engineer at Bahraich that since the father of the petitioner was not relieved from Bahraich within the stipulated time, therefore, he could not submit his joining at Balrampur. Further, it has also been submitted by the learned counsel for the petitioner that undisputedly the services of the father of the petitioner was regularized vide order dated 23.9.1998, therefore, he shall be treated as regularized w.e.f the date of regularization i.e. 23.9.1998. However, he could not submit his joining at the place where he was to discharge his services in the capacity of regularized employee. 5. The learned counsel for the petitioner has relied on the Division Bench of this Court in re: State of U.P. and others v. Kuldeep Thakur, 2017(4) ADJ 94 (DB)(LB), wherein it has been held that the incumbent is entitled for consideration of his claim for compassionate appointment provided his father’s services were declared regular. Para Nos. 12,13 and 15 are being reproduced herein below: 12. Para Nos. 12,13 and 15 are being reproduced herein below: 12. The consideration of the right of being regularized by operation of law while in force had already accrued in favour of the father of the respondent petitioner, and his death in between further gave rise to the expected consequential claim of compassionate appointment of the petitioner, provided his father’s services were declared regular. The consideration of such right, whether had accrued, does not get eclipsed nor could it be abandoned. If the consideration results in the services of the petitioner’s father becoming regular, then the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be an impediment for the respondent petitioner to be considered for compassionate appointment. The appellant State and it’s authorities therefore cannot escape this exercise and defeat the right of consideration by their inaction or the absence of timely and prompt action. Such exercise of consideration will not evaporate because of untimely death which is a fortuitous circumstance so as to result in any advantage to the State. 13. Apart from this, in the present case those who were at par with the father of the respondents had been extended the benefit of regularization. This distinguishing feature therefore is in addition to the issues involved in the case of Pawan Kumar Yadav (supra) and consequently, the claim of the respondent petitioner was at least entitled for consideration by the State Government in the light of the observations made hereinabove. 15. Consequently, we modify the judgment dated 22.11.2016 to the extent that it shall be open to the appellant State to consider the status of regularization of the father of the respondent and then proceed to take an appropriate decision with regard to the claim of the respondent petitioner for compassionate appointment in the light of the observations made hereinabove. 6. Per contra learned Additional Chief Standing Counsel has submitted that since at the time of death of the father of the petitioner he was working as work charge employee, therefore, as per the State policy no appointment can be provided to the dependent of an employee who was work charge at the time of his death. 7. 6. Per contra learned Additional Chief Standing Counsel has submitted that since at the time of death of the father of the petitioner he was working as work charge employee, therefore, as per the State policy no appointment can be provided to the dependent of an employee who was work charge at the time of his death. 7. Since Annexure 2 which is a letter dated 12.11.1998 clearly reveals that the father of the petitioner had not submitted his joining at Balrampur because he was not relieved from Bahraich, therefore, it may not be treated as deliberate lapse of the father of the petitioner not to submit his joining at Balrampur. Further, since the services of the father of the petitioner had already been regularized on 23.9.1998 and in the light of the judgment and order of this Court in the case of State of U.P. and others v. Kuldeep Thakur (supra) the father of the petitioner should be considered for regularization w.e.f the date 23.9.1998, therefore, the claim of the petitioner for getting a suitable appointment under Dying in Harness Rules, 1974 may not be rejected on the pretext that he is son of an employee who was work charge at the time of his death. 8. In view of the facts and circumstances stated herein above I am of the considered view that the order dated 23.9.2000 passed by the opposite party No. 5, Annexure 1 to the writ petition, is liable to be quashed and accordingly is hereby quashed. 9. The competent authority is directed to consider the status of regularization of the father of the petitioner in the light of judgment of this Court in re: Kuldeep Thakur (supra) and then proceed to take appropriate decision with regard to the claim of the petitioner for compassionate appointment with expedition say within a period of three months from the date of production of the certified copy of the order of this Court. 10. Accordingly, the writ petition is allowed. No order as to costs.