Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 668 (ALL)

State of U. P. v. Pushpa Devi

2020-03-03

KARUNESH SINGH PAWAR, P.K.JAISWAL

body2020
ORDER : Ref:-CMA No. 28550 of 2020 1. Heard learned Additional Chief Standing Counsel for the appellant and Sri Rakesh Kumar Srivastava, learned counsel for opposite party/respondent. 2. Present special appeal is barred by limitation from 238 days. 3. On due consideration of the reasons shown in the affidavit filed in support of delay condonation application, we are of the view that the cause shown therein is sufficient to condone the delay in filing the present appeal, accordingly, delay is condoned and delay condonation application is allowed. Order on appeal 4. It is not in dispute that husband of the respondent was initially appointed as daily wager on the post of Beldar on 01.04.1992 and he worked till his death i.e. up to 10.04.2014. 5. In the case of "Smt. Sundari Vs. State of U.P. and others" the husband of the writ petitioner therein was initially appointed on 01.04.1993 and thereafter as per government order issued on 13.01.2015, all the daily wager who were working on contract basis appointed up to 31.03.1995 and their services were considered for regularization. 6. In the case of Sundari Devi (supra), her husband died on 07.04.2016 and an application for compassionate appointed under the provision of the U.P. Recruitment of Dependants of Government Servants Dying-in-harness Rules, 1974 (hereinafter referred to as "Dying-in-harness Rules, 1974") has been rejected and in the writ petition learned writ Court disposed of the writ petition with a direction to the competent authority to consider the case of the petitioner for compassionate appointment under the Dying-in-harness Rules, 1974 in the light of judgment passed in the case of Kuldeep Thakur. The order dated 1.08.2018 passed in the case of Writ Petition No. 22831 (S/S) of 2018 reads as under:- "Heard learned counsel for the petitioner and Sri P.K. Singh, learned Additional Chief Standing counsel appearing for the State-respondents. By means of the present petition, petitioner, widow, of an employee has staked her claimed for compassionate appointment under the provisions of U.P. Recruitment of Dependants of Government Servant (Dying in Harness), Rules 1974 (hereinafter referred to as "Rules 1974"). The case set forth by the petitioner is that her husband was initially appointed on daily wages basis on the post of Beldar on 01.04.1993. Thereafter, he was appointed on the post of Chokidar in the pay scale of Rs. The case set forth by the petitioner is that her husband was initially appointed on daily wages basis on the post of Beldar on 01.04.1993. Thereafter, he was appointed on the post of Chokidar in the pay scale of Rs. 2550-3200/- in a work charge establishment on 24.05.2003 and he continued to work on the said post. A Government order dated 13.08.2015 was issued for the purpose of regularizing the services of such daily wagers, employees working in work charge establishment and the employees working on contractual basis appointed up to 31.03.1996. The said cut off date of subsequently modified vide order dated 24.02.2016 as 31.12.2001 meaning thereby that those who were appointed prior to 31.12.2001 were to be considered for regularization in pursuance to the Government order. The State Government framed the Rules known as the U.P. Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group 'C' and Group 'D' Post (outside the purview of the Uttar Pradesh Public Service (Commission)) Rules, 2016 (hereinafter referred to as "Rules, 2016"). However, before the case of the petitioner could be considered for regularization, he died on 07.04.2016 leaving behind the petitioner, widow and three minor sons. Copy of the death certificate is annexed as annexure-4 to the writ petition. Learned counsel for the petitioner submits that in pursuance to the said regularization rules which were promulgated in pursuance to the aforesaid Government order dated 13.08.2015, a few of his juniors namely Sant Bahadur Singh and Sri Ram Gopal were regularized on 24.10.2011 and 28.12.2016 and as such had the respondents acted timely in pursuance to the said Government order that had already come into force when the petitioner's husband was in service, consequently, even he would have been regularized and as such the petitioner in the case of his unfortunate death would have been entitled for compassionate appointment under the provisions of the Rules, 1974. Learned Additional Chief Standing counsel has placed reliance on a judgment of this Court in the case of Pawan Kumar Yadav Vs. State of U.P. and Ors. Learned Additional Chief Standing counsel has placed reliance on a judgment of this Court in the case of Pawan Kumar Yadav Vs. State of U.P. and Ors. reported in (2011) 1 AWC 1028 to contend that as the petitioner's husband was not regularized in service prior to his death, consequently he cannot be treated to be an employee under the provisions of Rules, 1974 so as to entitle his dependents or the petitioner herein for the benefit of Rules, 1974 and consequently she cannot claim any appointment on the basis of the said rules. On the other hand, learned counsel for the petitioner has placed reliance on a Division Bench judgment of this Court in the case of State of U.P. Vs. Kuldeep Thakur reported in: 2017 (35) LCD 696 wherein this Court after considering the judgment of Pawan Kumar Yadav (supra) has held as under:- "11. Applying the said analogy, the claim of the father of the respondent-petitioner had already been forwarded and he was very much alive when the Government order dated 13.8.2015 was issued. In such a situation the State Government or its concerned department ought to have considered the claim of the respondent-petitioner for regularization and then could have proceeded to determine as to whether the respondent-petitioner was entitled to any benefit or not. In our opinion, the fortuitous circumstance of the death of the father of the respondent-petitioner does not absolve the State Government of its obligation to consider the claim of regularization of the father of the respondent-petitioner. There can be a case where the consideration has been made and the regularization accepted but before the order reaches a man dies or his death takes place in the near vicinity or simultaneously with regularization. In this situation, the claim of regularization of the deceased-employee does not remain an option to be ignored by the State Government. The State Government or its authorities are under an obligation to consider such a claim and to award any consequential benefits if the process has been set into motion as has happened in the present case. Once the father of the respondent-petitioner is found entitled to be regularized as on the date of the Government order dated 13.8.2015, on which date he was admittedly alive, then in that event the claim of the respondent-petitioner can also be considered. 12. Once the father of the respondent-petitioner is found entitled to be regularized as on the date of the Government order dated 13.8.2015, on which date he was admittedly alive, then in that event the claim of the respondent-petitioner can also be considered. 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". Having heard the learned counsels for the contesting parties and having perused the record what this Court finds is that admittedly when the Government order dated 13.08.2015 was issued, the petitioner's husband was alive and in service. However, before the regularization Rules, 2016 could be promulgated, he had died yet his juniors came to be regularized in service. Having heard the learned counsels for the contesting parties and having perused the record what this Court finds is that admittedly when the Government order dated 13.08.2015 was issued, the petitioner's husband was alive and in service. However, before the regularization Rules, 2016 could be promulgated, he had died yet his juniors came to be regularized in service. Thus, what would have seen by the department is the factum of the status of regularization of the father of the petitioner at the time of his death as it was in the interregnum period between the issuance of the Government order dated 13.05.2015 and regularization of his juniors of the petitioner's husband on 28.12.2016 that the petitioner's husband died on 07.04.2016 keeping in view the law laid down in the case of Kuldeep Thakur (supra). Accordingly, with the consent of the parties, the present petition is disposed of with the direction to the competent authority, i.e. respondent No. 4 to consider the case of the petitioner for compassionate appointment under the provisions of Rules, 1974 and in the light of the judgment of this Court passed in the case of Kuldeep Thakur (supra) within a period of three months from the date of certified copy of this order is produced before him." 7. Considering the aforesaid, the learned writ court while disposing of the writ petition made the following directions which reads as under:- "Learned counsel for the petitioner has further submitted that the difference between this matter and in re: Smt. Sundari (supra) the husband of Smt. Sundari who was alive before Government Order dated 13.8.2015 which has been referred in the said order. However, in the present case the husband of the petitioner died on 10.4.2014. However, in the present case the husband of the petitioner died on 10.4.2014. However, learned counsel for the petitioner haws drawn attention of this Court towards Annexure No. 2 which is office memo dated 24.10.2011 whereby the regularisation of similarly placed employees have been made ignoring the claim of the husband of the petitioner whereas his name finds place in office memo dated 24.5.2003 (Annexure No. 1 to the writ petition) wherein the name of the husband of the petitioner finds place at serial No. 16, the list of work charge employees, therefore, the submission of learned counsel for the petitioner is that when the identically placed work charge employees whose name finds place in the order dated 24.10.2003 have been regularised then the services of the husband of the petitioner should have been regularised on 24.10.2011 when the similarly placed employees have been regularised. Since the husband of the petitioner was aggrieved as his name was not considered for regularisation, therefore, he preferred couple of representations before the competent authorities making request that he should have also been regularised when the similarly placed persons have been regularised. Therefore, in view of the aforesaid facts the opposite party may not take any adverse view of the Government Order dated 13.8.2015 for the reason that the husband of the petitioner died before 13.8.2015. Therefore, the matter of present petitioner could have been considered in the light of the order dated 10.8.2018 in re: Smt. Sundari (supra). Accordingly, the present writ petition is disposed of with the direction to the competent authority to consider the case of the petitioner for compassionate appointment under the provision of Rules, 1974 and also in the light of the judgment of this Court in re: Kuldeep Thakur as referred in the order dated 10.8.2018 within a period of three months from the date of production of certified copy of the order of this Court." 8. On due consideration the aforesaid and considering the fact that appointment of husband of the respondent was made on 01.04.1992 and thereafter during employment he died on 10.04.2014 and therefore, learned writ court rightly applied the issues laid down in the case of Smt. Sundari (supra) and issued aforesaid directions while disposing of the writ petition and directed competent authority to consider her case for compassionate appointment under the Dying-in-harness Rules, 1974 and also in the light of judgment passed in the case of "State of U.P. Through Principal Secretary, Agriculture and three others Vs. Kuldeep Thakur" Special Appeal No. 89/2017, decided on 01.03.2017. 9. The sole contention of learned counsel for the appellant is that as the date of death is prior to 2015 and therefore, the learned writ court has committed an error relying on the ratio in the case of "Smt. Sundari Vs. State of U.P. and others" while issuing the aforesaid direction. 10. Looking to the period of service which the husband of respondent namely Smt. Pushpa Devi has completed so also the fact that if he would have alive, his services have been regularized by the aforesaid circular and therefore, the directions issued by the learned writ court for considering the case of the petitioner on compassionate basis because as per regularization order dated 24.10.2011, Jawas Lal Gupta, Kudrat Ali, Ajimullah, Sheetal, Hari Bahadur and Shyam Lal, their services have been regularized and out of the aforesaid six employees Kudrat Ali was appointed on 01.10.1993 i.e. after the appointment of the husband of respondent and thus, it is not in dispute that in the year 2011, the husband of the respondent was also entitled for regularization as he was at serial No. 16 of the list which was prepared by the State Government but his case has not been considered for regularization and thus, on the aforesaid ground we cannot set aside the aforesaid order with the reasons mentioned, special appeal has no merit and is accordingly dismissed. Appeal Dismissed.