Allahabad High Court
Atul Kumar Tewari vs State Of U.P. Thu. The Principal ... on 6 January, 2010
Author: Rajiv Sharma
Bench: Rajiv Sharma
1
Court No. 24
Writ Petition No. 13 (SS) of 2010
Atul Kumar Tewari ... Petitioner
Versus
State of U.P. and others ... Opposite parties
---------
Hon'ble Rajiv Sharma, J.
Heard learned Counsel for the petitioner and the learned Standing Counsel.
The petitioner has filed this writ petition on account of inaction of the opposite parties in not consider the claim of the petitioner for appointment on compassionate ground and thereby denying the legitimate claim of getting employment under the provisions of the U.P. Recruitment of Dependents of Government Servant ( Dying-in Harness) Rules, 1974.
Petitioner's father Late Keshav Prasad Tewari was engaged on daily wage basis on the post of Office Assistant in the office of Forest Ranger, Sultanpur Range. By the order dated 8.1.2003, according to the petitioner's Counsel, he was granted regular scale of pay. On 19.10.2006, all of a sudden, petitioner's father expired and, therefore, the petitioner moved an application for compassionate appointment.
The Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 has been framed in exercise of the powers conferred by Article 309 of the Constitution of India. The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 [ in short referred to as "
Dying in Harness Rules, 1974] are special set of rules, which have been made for providing a source of livelihood, and to give some respite to the members of the deceased Government servant's family at a time when the family is suddenly struck with a calamity where the sole bread earner dies. The overall idea and concept of these rules is to keep the family in main streamline of the society for which economic security and social status is to be provided by the State Government.2
Rule 2 is the definition clause. 'Government Servant' has been defined in clause (a) and it provides as under :
"(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) through no 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 ;"
Rule 3 provides that the Rules would be applied to recruitment of dependents of the deceased government servants to public services and posts in connection with the affairs of State of Uttar Pradesh. Rule 4 is a non-obstante clause stating that the same shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement thereof.
Rule 5 provides for recruitment of a member of the family of the deceased. It reads as under :
"5. Recruitment of a member of the family of the deceased. - (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person-
(i) fulfills the educational qualifications prescribed for the post,
(ii) is otherwise qualified for Government 3 service, and
(iii) makes the application for employment within five years from the date of the death of the Government servant:
Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death."
Thus, in order to claim an appointment under the provisions of Rules, 1974, the deceased should be a Government Servant as defined under Rule 2, as referred hereinabove. But, in the instant case, there are no averments in the writ petition as to whether the deceased was a Government Servant and instead, it has only been stated in paragraph-3 of the writ petition that the petitioner's father, namely, Keshav Prasad Tewari was initially appointed as daily-wager and thereafter was granted regular scale of pay.
No where in the writ petition, there is a whisper of words to the effect that petitioner's father was engaged after due process of recruitment either as daily wager or in the work-charge establishment. In order to be entitled for the benefit of Rules, 1974, petitioner's father, Keshav Prasad Tewari (deceased) should have been engaged on regular vacancy as provided in Rule 3 of Rules, 1974. It is relevant to mention that in Annexure-5, which is a letter addressed to the Chief Conservator of Forest, it is mentioned that there is no provision for compassionate appointment of the dependents, whose father was getting only the minimum of pay scale.
It may be added that in Uttaranchal Jal Sansthan v. Laxmi Devi (2009) 7 SCC the Apex Court, while considering the question as to whether deceased, who was not a permanent or temporary employee, his/her dependent would be entitled to appointment on compassionate ground or not, has held that the persons working in 4 the work-charge establishment cannot be said to be a Government Servant in view of the definition of Government servant under Rule 2(a) of Rules, 1974.
In view of the aforesaid facts and the legal proposition, I am of the considered view that 'daily wager' or work charge employee does not fall in the definition of 'Government Employee' as defined in Rules, 1974 and consequently, the petitioner is not entitled for compassionate appointment, whose father, admittedly, was not the government servant.
For the reasons aforesaid, the writ petition is dismissed.
6.1.2010 HM/-