Allahabad High Court
Smt. Rita Devi vs State Of U.P. And Ors. on 11 December, 2003
Equivalent citations: 2004(1)AWC825
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
1. Heard Sri Dilip Singh learned counsel for the petitioner and Sri S.S. Sharma learned standing counsel.
2. In this petition prayer has been made for commanding the respondents to appoint the petitioner as Class IV employee on compassionate grounds and for payment of regular salary month to month.
3. By amendment application the petitioner has challenged the order dated 29/30.12.1998 rejecting the representation of the petitioner on the ground that there is no provision for appointment of the dependents of the part time Tubewell operator died under the "U. P. Recruitment of Dependent of Government Servant Dying in Harness Rules, 1974" in short called 'Rules, 1974' hereinafter.
4. As contended on behalf of the petitioner Late Vikram Singh was working as part time Tubewell operator by virtue of his deployment in the Irrigation Department from 7.6.1982 till he died on 14.5.1997. Similarly situated persons with the husband of the petitioner approached this Court collectively by filing Writ Petition No. 11556 of 1989 which was allowed on 8.12.1995 (Annexure-1 to the writ petition) whereby as many as 11 part time Tubewell operator parties to the writ petition were directed to be paid same allowances and pay-scale as are being paid to the other regular Tubewell operators.
5. According to the petitioner as contended in the para 6 of the writ petition consequent upon the order dated 8.12.1995 similarly situated Tubewell operators were regularised in service, however, it was irony of fate that before regularisation of petitioner's husband, he died on 14.5.1997. The petitioner being the dependent, legally wedded wife of late Sri Vikram Singh approached for appointment on compassionate grounds and when no heed was taken, she preferred, the present writ petition and during the pendency of the writ petition she came to know that the representation of the petitioner was rejected by the order dated 29/30.12.1998 enclosed as Annexure-C.A.-1 which has also been challenged.
6. Counter-affidavit has been filed. According to the learned counsel for the respondents undoubtedly, the petitioner's husband was not regularised, however, in para 6 of the counter-affidavit there is no denial that the other similarly situated persons named in the Writ Petition No. 11556 of 1989 were not regularised. It has only been indicated in para 6 to the counter-affidavit as contended on behalf of the respondents that there is no specific provision for extending benefit of appointment on compassionate grounds in respect of the dependents of a worker deployed as a part time Tubewell operator thereafter.
7. Learned counsel for the petitioner has submitted that she is entitled to be given employment in reference to the decision of this Court in Santosh Kumar Mishra v. State of U. P. and Ors., 2001 (4) ESC (All) and in reference to Saroj Devi (Smt.) v. State of U. P. and Ors., 1999 (3) AWC 2443 : (2000) 1 UPLBEC (Sum) 15, and in reference to Smt. May a Devi v. State of U. P. and Ors., 1998 (79) FLR 608.
8. According to the petitioner the vacancies are still available and the petitioner's grievance and poor financial condition is still persisting, therefore, petitioner's case is extremely genuine to be considered in the light of the above mentioned decisions of the Court.
9. In Santosh Kumar Mishra (supra) this Court referring the case of Raj Narain Prasad and Ors. v. State of U. P. and Ors., (1998) 8 SCC 473 and in reference to Smt. Pushp Lata Dixit v. Madhyamik Shiksha Parishad and Ors.. 1991 (18) ALR 591 and Smt. Maya Devi v. State of U. P. and Ors., 1998 (79) FLR 608 and in reference to Smt. Saroj Devi v. State of U. P. and Ors., 1999 (3) AWC 2443 : 1999 (3) ESC 2187 (All), has observed that the writ petitioner Santosh Kumar Mishra when claimed the appointment on compassionate ground under the Dying in Harness Rules on the death of his father, while working initially as daily wager/muster roll employee w.e.f. 15.6.1986 and subsequently deployed as work-charge employee on 13.8.1997 and was continuously in deployment and working till 31.3.1999 and died in harness on 1.4.1999, however was denied the benefit of regularisation, whereas juniors to the father of writ petitioner and other similarly situated persons were regularised ignoring the claim of his father but the denial of appointment to Santosh Kumar Mishra on compassionate ground under Dying in Harness Rules on the ground that his father while in service before death was not regular employee, however, such denial of appointment was held to be illegal and this Court has further observed that the petitioner Santosh Kumar Mishra to be entitled for appointment on the compassionate ground in reference to Rule 2 of Dying in Harness Rules.
10. For convenience the extract of relevant rules of 'Dying in Harness Rules' provides as below :
"2. Definitions.--In these rules, unless the context otherwise requires :
(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) though not 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 ;
(b) "deceased Government servant" means a Government servant who dies while in service ;
(c) "family" shall include the following relations of the deceased Government servant :
(i) Wife or husband ;
(ii) Sons ;
(iii) Unmarried and widowed daughters ;
(iv) If the deceased was unmarried Government servant, brother, unmarried sister and widowed mother dependent on the deceased Government servant ;
(d) "Head of Office" means Head of Office in which the deceased Government Servant was serving prior to his death."
"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) fulfils the educational qualifications prescribed for the post,
(ii) is otherwise qualified for Government 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.
(3) Each appointment under Sub-rule (1) should be under the condition that the person appointed under Sub-rule (1) shall unkeep those other family members of the deceased Government servant who are incapable for their own maintenance and were dependent of the above said deceased Government servant immediately before his death.
11. The observation which was made by High Court in Santosh Kumar Mishra (supra) in paras 9, 14 and 17 are as below :
"9. According to the submission of the learned counsel for the State, a dally wager or work charge employee who is engaged by the State Government or any department of the State Government cannot be treated as a Government servant within the definition of Rule 2 of the aforesaid rules. Qualifying the above argument, the learned counsel for the State further submitted that though an employee who is not regularly appointed is covered by the definition in view of Sub-clause (iii) of Rule 2 (a) but in that case such employee must have put in three years continuous service, that too in regular vacancy in such employment. Since the petitioner's father was earlier a daily wager or muster roll employee and later on worked as work charge employee, therefore, it cannot be said that he was appointed regularly or had worked in regular vacancy."
"14. The practice of appointing daily wagers or work charge employees is very much prevailing in the State of Uttar Pradesh and instances are no less in number where the dally wager or work charge employees in the Government Department have been allowed to continue for years together, namely, 15 years, 20 years and 25 years or till they actually reach the age of superannuation to which they may not be entitled, not being a Government servant but they are disposed with their engagement on attaining the age of superannuation. The practice of appointing such dally wagers and work charge employees has constantly been a matter of great concern for the judiciary and for that matter, the Apex Court has many a times issued directions for framing schemes so as to accommodate all daily wagers of long standing duration and work charge employees as a regular employees. It would be needless to mention that such a scheme has been ordered to be framed by the Court in the department of Rural Engineering Services in the Forest Department and many other department."
"17. In the instant case, one more redeeming feature in favour of the petitioner is that persons junior to the petitioner's father who were similarly appointed and were taken on the work charge establishment were regularised against regular vacancies by means of order dated 2.11.1998 but the case of the petitioner's father was not considered and thus he was deprived the benefit of regularisation. In case, the petitioner's father had been considered at that time, he would have been regularised before he died on 1.4.1999. Since the petitioner's father was entitled for regularisation after putting in such a long service and his case has not been considered for regularisation, the petitioner cannot be deprived of giving the appointment on compassionate ground because the opposite parties themselves did not consider the case of the petitioner's father for regularisation."
12. In the case of Saroj Devi (supra) this Court has directed the entitlement of writ petitioner to be given employment on the compassionate ground under Dying in Harness Rules acknowledging the claim of the petitioner in view of the fact that the husband of the writ petitioner had died in while working on temporary basis against the substantive vacancy.
13. A woman cannot be denied appointment under this rule on the alleged ground that her deceased husband was not working on regular basis in view of Meena Devi Chaudhary v. Chief Engineer, U. P. Public Works Department, Lucknow, (2000) 2 UPLBEC 1421 at 1422 (All).
Delay in appointment--What amounts to.--When a dependent attained the age for appointment on compassionate ground, it will count not as delay for moving an application for consideration of appointment.
14. In Smt. Maya Devi (supra) where the writ petitioner's husband had worked satisfactorily under the Director Government Press, Allahabad for about 10 years as a daily wager until his death, on her claim the writ petitioner was directed to be accommodated on compassionate ground under the Dying in Harness Rules relying on the judgment of Smt. Pushp Lata Dixit (supra), where it was held as under :
"The main contention of the petitioner's counsel is that in pursuance of the Government order she is entitled for the appointment in the said department. On behalf of the State a counter-affidavit has been filed and it is stated that the husband of the petitioner was not regular employee. On behalf of the petitioner. Government Order No. 6/12-1973 Niyukti-4, Lucknow dated 7th October, 1974 has been produced showing that rule of Dying in Harness is fully applicable on the person who is not regularly appointed and died in harness. The main object of the rule is to provide an employment to the family of the person who died in harness. The employment is given on the compassionate ground and, therefore, in my opinion, it would not be proper to say that the husband of the petitioner has not been regularly appointed but he has worked 17 years in the department and died in harness. Therefore, the heir of the deceased is entitled to get benefit of Dying in Harness Rules, 1974."
15. Similar view was also taken by this Court (Hon'ble R. B. Misra, J.) by the order dated 26.9.2003 passed in Writ Petition No. 18172 of 1994, Smt. Anju Mishra v. General Manager, Kanpur Jal Sansthan, Benajhawar Road, Kanpur, where while rendering 11 years of service as daily wager in Jal Sansthan, Kanpur the petitioner's husband died before his regularisation where as one other dependent of a daily wager who also died after serving a considerable number of years as a daily wager was given appointment then in reference to the provisions of Article 14 the writ petitioner was directed to be given similar treatment in respect of appointment as a dependent oh compassionate grounds in reference to 'Rules, 1974'.
16. I have heard learned counsel for the parties. I find that if the similarly situated persons while working along with the husband of the petitioner were regularised and the petitioner's husband had worked for more than 15 years died before regularisation leaving behind the petitioner/widow, the benefit of appointment on compassionate ground could be extended to her, provided the vacancy is available and petitioner is in possession of the minimum qualification and age as required for appointment to the post of Class IV category. However, the age shall not debar the petitioner for appointing provided the petitioner should not be below 18 years and should not be more than 58 years.
17. In view of the above observations, the writ petition is disposed of in view of the observations made above with the direction to the respondents to consider the case of the petitioner in respect of giving employment to Class IV category within three months from the production of the certified copy of this order before Executive Engineer, Tubewell Division-1, district Allahabad.
18. No order as to cost.