Allahabad High Court
State Of U.P. & Others vs Shri Balram on 30 January, 2018
Bench: Sudhir Agarwal, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 11.01.2018 Delivered on 30.01.2018 Court No. - 34 Case :- SPECIAL APPEAL No. - 2001 of 2009 Appellant :- State Of U.P. & Others Respondent :- Shri Balram Counsel for Appellant :- S.C. Counsel for Respondent :- D.P. Misra Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. Learned Standing Counsel for appellant is present. None appeared on behalf of respondent though called in revise, hence we proceed to decide the appeal finally after hearing learned Standing Counsel.
2. This intra-Court appeal under Chapter VIII, Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment dated 06.11.2003 passed by learned Single Judge in Writ Petition No.30079 of 2002 disposing of the same and declaring that petitioner-respondent, Bal Ram, is entitled for compassionate appointment as dependent of deceased employee, hence, direction has been issued to appellant to take step for compassionate appointment of petitioner-respondent, expeditiously, within a period of three months from the date of production of a certified copy of the judgment.
3. The facts relevant for adjudication of this appeal are that petitioner- Bal Ram's father Asha Ram was appointed as Tube Well Assistant on 22.10.1992. He was further appointed as Gram Vikas Adhikari in District Kaushambi vide order dated 14.05.1999 passed by Collector and vide order dated 31.7.1999, posted in Gram Panchayat Bhadwan as "Gram Panchayat Vikas Adhikari" (hereinafter referred to as "GPVA"). While working as GPVA , petitioner's father died on 10.09.2000. Petitioner then moved an application requesting for compassionate appointment, but, it was rejected vide order dated 19.10.2000, which was challenged in Writ Petition No.18459 of 2001. The writ petition was allowed vide judgment dated 14.5.2001 and order dated 19.10.2000 was quashed. This Court directed Executive Engineer to reconsider claim of petitioner for compassionate appointment in the light of appointment order dated 31.7.1999 appointing petitioner's father as 'GPVA'. A modification application was filed by petitioner seeking correction in judgment and instead of Executive Engineer, direction was requested to be given to District Magistrate, Kaushambi, who had appointed petitioner's father as GPVA. The judgment dated 14.5.2001 was modified on 31.08.2001.
4. However, again claim of petitioner was rejected by Executive Engineer vide order dated 03.07.2000 holding that petitioner's father was a Part Time Tube Well Operator, hence, not entitled for compassionate appointment as U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 (hereinafter referred to as "Rules, 1974") are not applicable to Part Time Tube Well Operators and such appointee does not come within the definition of "Government Servant" under Rule 2(A-iii) of Rules, 1974. This order was challenged in Writ Petition No.30079 of 2002 and vide judgment in question, learned Single Judge has allowed writ petition and quashed order dated 03.07.2000.
5. Learned Standing Counsel contended that petitioner's father, being a Part Time Tube Well Operator, did not satisfy definition of "Government Servant" under Rule 2(A-iii) of Rules 1974, therefore, application of petitioner for compassionate appointment was rightly rejected and learned Single Judge has erred in law in allowing writ petition and setting aside aforesaid order dated 03.07.2000 passed by Executive Engineer. He placed reliance on a Full Bench judgment in Pawan Kumar Yadav Vs. State of U.P., 2010 (8) ADJ 664, wherein full Bench of this Court has held that Part Time Tube Well Operators cannot be said as appointees on a regular vacancy or on any post in the establishment and, therefore, Rules, 1974 are not applicable to those persons.
6. Our attention was drawn to paragraphs 9(b), (j), (k) and (l) of judgment in Pawan Kumar Yadav (supra) to show that question of applicability of Rules, 1974 to legal heirs of a deceased part time Tube Well Operators was also under consideration before Full Bench and question has been answered by Full Bench against such claim and writ petitions have been dismissed after overruling a number of judgments referred for consideration by Full Bench i.e. Smt. Pushpa Lata Dixit Vs. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi Vs. State of U.P. (Writ Petition No.24231 of 1998 decided on 2.3.1998); State of U.P. Vs. Maya Devi (Special Appeal No.409 of 1998); Santosh Kumar Misra Vs. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615; and Anju Misra Vs. General Manager, Kanpur Jal Sansthan (2004) 1 UPLBEC 201.
7. So far as applicability of Rules, 1974 to Part Time Tube Well Operators and their legal representatives is concerned, the issue has already been settled by Full Bench and we are bound by aforesaid exposition of law, hence, it cannot be doubted that Part Time Tube Well Operators so long as they continue as such, if die in harness i.e., while working as Part Time Tube Well Operators, their heirs and legal representatives cannot claim compassionate appointment under Rules, 1974 since deceased Part Time Tube Well Operator cannot said to be a "Government Servant" as defined under Rule 2(A-iii) of Rules, 1974.
8. However, in the present case, situation is different. On the date of death, petitioner's father was working as GPVA, having been appointed by Collector, Kaushambi and it is not shown to us in any manner that a GPVA is not a "Government Servant". He is governed by U.P. Gram Panchayat Adhikari Service Rules, 1978, as amended from time to time. In the claim set up by petitioner for compassionate appointment, after death of his father, this Court in earlier judgment dated 14.5.2001 directed competent authority to take a decision in the light of the fact that petitioner's father was already appointed as GPVA but instead of looking into this aspect of the matter, claim of petitioner was rejected on the ground that a Part Time Tube Well Operator is not a 'Government Servant' as defined under Rule 2(A-iii) of Rules, 1974 and nothing has been said about entitlement of petitioner to be considered for compassionate appointment under Rules, 1974 treating his father as GPVA, which he was on the date of death, having been appointed by Collector, Kaushambi vide order dated 14.5.1999.
9. It is in these facts and circumstances, we find that reliance placed by learned Standing Counsel on the Full Bench judgment in Pawan Kumar Yadav (supra) has no application. Learned Single Judge has rightly set aside the order, which was not in consonance with direction issued by this Court vide earlier judgment dated 14.05.2001 passed in Writ Petition No.18459 of 2001. Hence, we find no manifest fault or error in the judgment in question warranting interference.
10. The appeal lacks merit.
11. Dismissed.
Order Date :- 30.01.2018 KA