Allahabad High Court
Rajesh Kumar vs State Of U.P. And Anr. on 20 March, 2002
Equivalent citations: 2002(2)AWC1480, [2002(93)FLR703], (2002)3UPLBEC2256
JUDGMENT R.B. Mishra, J.
1. In the present writ petition, the petitioner has sought writ of mandamus commanding the respondents to consider the case of the petitioner to appoint him on regular basis as a permanent employee and to declare appointment letter dated 18.2.1997 passed by Superintending Engineer, Flrozabad circle, P.W.D., Agra, as cancelled by which the petitioner was appointed as a 'Beldar' on daily wage.
2. Heard Sri Dharmesh Chaturvedi, learned counsel for the petitioner as well as Sri B.K. Pandey. learned standing counsel for the State. No counter and rejoinder-affidavits have been filed, however, as agreed by the parties this petition is being decided finally at this stage according to the Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952.
3. The brief facts necessary for adjudication of the case are that the petitioner's father late Nathu Ram had worked initially as work charge employee in construction Division, P.W. D., Flzorabad but later on was regularised by order dated 14.2.1996 of Superintending Engineer. Agra/ Firozabad circle, P.W.D., Agra, however, as on irony of fate, he died six days later, i.e., on 20.2.1996 and an application on behalf of the petitioner/son has been filed before the concerned authority seeking employment on the compassionate ground under U. P. Recruitment of Dependents of Government Servants Dying in Harness Rule, 1974 (hereinafter referred to as the 'Rule 1974'). When the request of the petitioner was not acceded to, the petitioner filed Writ Petition No. 3441 of 1997 (Rajesh Kumar v. Superintending Engineer and Anr.) before this Court and this Court by its order dated 28.1.1997 has been pleased to dispose of the same with direction to the respondents to decide the case of the petitioner within a stipulated time. In compliance to the above order, the petitioner was given appointment to the post of 'Beldar' on daily wage by order dated 18.2.1997 of Superintending Engineer on compassionate ground under the above 'Rule 1974'.
4. Being aggrieved, the petitioner has again agitated and has come before this Court by way of the present writ petition saying that his appointment should be made only on permanent basis not as Beldar on daily wage. For this purpose, the petitioner has placed reliance on the judgment dated 10.1.2002 of this Court passed in Writ Petition No. 2253 of 1997 where it has been held that the appointment of petitioner under 'Rule 1974' should have been made on permanent basis.
5. On behalf of the petitioner, learned counsel has also placed reliance on the judgment dated 10.1.2001 of this Court passed in Writ Petition No., 25956 of 1997, Ajay Kumar Sharma v. State Government of U. P., 2000 (2) AWC 1020 : 2000 (1) ESC 291 (All) where the service of the person appointed under 'Rules 1974' was terminated under the provisions of U. P. Temporary Government Employees (Termination of Service) Rules, 1975 in short called 'Rules 1975'. On challenge, this Court while deciding the writ petition has set aside such termination order treating it to have been passed in violation of principle of natural Justice when the appointment on the compassionate ground under rule could not be made as temporary or ad-hoc in disregard to the purpose of 'Rule 1974'. Learned counsel for the petitioner has also relied on an order dated 12.2.1999 passed in Writ Petition No. 39127 of 1997, Ravi Karan Singh v. State of U. P. and Ors. 1999 (2) AWC 976 : 1999 (2) ESC 976-972 of High Court (D.B.) where this Court has observed that:
"This petition has come up before us on a reference made by the learned single Judge by his order dated 19.12.1997. The point involved is very simple, that is whether an appointment under the Dying-in-Harness Rules is a permanent appointment or a temporary appointment. According to the learned single Judge, this Court, had earlier held that an appointment under Dying in-Harness Rules is a permanent appointment uide Budhi Sagar Dubey v. D.I.O.S., 1992 AWC (Suppl) 211 : 1993 ESC 21 ; Gulab Yadav v. State of U. P. and Ors. 1991 (2) UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. and Ors. 1991 (2) UPLBEC 427. The learned single Judge, who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.
In our opinion, an appointment under the Dying-in-Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment, then it will follow that soon after the appointment. the service can be terminated and this will nullify the very purpose of the Dying-in-Harness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner. We, therefore, hold that the appointment under Dying-in-Harness Rules is a permanent appointment and not a temporary appointment and hence the provisions of U. P. Temporary Government Servant (Termination of Services) Rules 1975 will not apply to such appointments."
6. Learned counsel for the petitioner relying on the judgment of this Court dated 11.2.2002 in Writ Petition No. 41891 of 1997. Sanjay Kumar v. Deputy Director General (N.C.C.) Directorate U. P. and Ors., has contended that the petitioner should be treated to have been appointed on permanent basis under 'Rule 1974' since the date of initial appointment and the petitioner was to given his retiral benefits.
7. I have considered the facts and circumstances of the case and in the light of the above decisions, I find that the appointment of the petitioner as a Beldar on daily wage by order dated 18.2.1997 is not legally justified and, therefore, It is liable to be set aside by substituting a fresh order to be passed by the appropriate concerned authority by issuing a modified order of appointment of permanent nature since beginning and giving him consequential benefits.
8. In view of the above observation made above, the writ petition is, therefore, allowed with the directions to the concerned authority to consider the case of the petitioner and issue an appointment order in appropriate form as indicated above preferably within six weeks from the date of receipt of certified copy of this order. Let a certified copy of this order be given to the learned counsel for the petitioner on payment of usual charges.