HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Civil Misc. Writ Petition No. 36732 of 2008 Gaurav Pachaury ------- Petitioner Versus State of U.P. & Ors. ------- Respondents Hon'ble Krishna Murari, J.
Heard Shri Rohit Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
Petitioner has approached this Court for issuing a writ of certiorari to quash the impugned order dated 29.04.2008 passed by District Magistrate, Hathras rejecting the claim of the petitioner for compassionate appointment. A further writ of mandamus has been claimed commanding the respondents to appoint the petitioner on compassionate ground.
Brief facts giving rise to the dispute are that father of the petitioner was initially appointed as seasonal Collection Amin on 25.07.1979 and posted at Tehsil Sadabad, District Mathura. He moved a representation before the District Magistrate in the year 1996 claiming appointment on the post of regular Collection Amin. When no decision was taken, he approached this Court by filing Writ Petition No. 37385 of 1996 along with other identically situated Seasonal Collection Amin. The said writ petition was disposed of by this Court vide order dated 25.11.1996 directing the District Magistrate to decide the representation filed by the petitioners in accordance with law and relevant rules and it was further directed that if the services of the petitioners therein have not been terminated, they shall be permitted to continue in service and will also be entitled to salary.
It has been urged that in pursuance to the aforesaid order of this Court, the father of the petitioner was allowed to function as Amin vide order dated 25.03.1997 passed by District Magistrate. Thereafter, on creation of new district Mahamaya Nagar, he was adjusted there. He died in harness on 13th February, 2005 in a road accident. Petitioner was a minor at that time. On attaining majority, he made an application for grant of compassionate appointment in July 2007. When no decision was taken, he approached this Court by filing Writ Petition No. 3760 of 2008, which was disposed of vide order dated 23.01.2008 directing the District Magistrate, Hathras to take a final decision within a period of two months from the date of production of a certified copy of the order.
In compliance of the aforesaid order, the claim of the petitioner has been rejected on 29.04.2008 mainly on the ground that since the father of the petitioner was not absorbed as regular Collection Amin, though he has functioned as Collection Amin, hence, the petitioner is not entitled to be given compassionate appointment.
Learned counsel for the petitioner has vehemently contended that rejection of claim of the petitioner on the ground that his father was not regularly appointed on the post of Collection Amin, though he had functioned on the said post, is not sustainable in view of Rule 2 (a) (iii) of the U.P. Dying-in-Harness Rules, 1974, which provides that a Government servant also includes a servant, who though not regularly appointed, but had put in 3 years' continuous service in regular vacancy in such employment and in view of the said definition, compassionate appointment cannot be denied on the ground that petitioner's father was not substantively appointed and not regularised.
Learned Standing Counsel referring to the averments made in the counter affidavit, contended that father of the petitioner was a seasonal employee and not a regular employee and was only allowed to function as a Collection Amin in pursuance to the order passed by this Court in Writ Petition No. 37385 of 1996, as such, the petitioner is not entitled for being offered compassionate appointment.
I have considered the argument advanced by the learned counsel for the parties and perused the record.
The definition of Government servant as contained in 1974 Rules includes, "not only the Government servant in permanent service, but even temporary Government servant and also those not regularly appointed, but have put in 3 years' continuous service."
Rule 2 (a) of 1974 Rules reads as under.
"2. Definition.- 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."
Factual position which emerges out from the own showing of the respondents is that petitioner's father had functioned as seasonal Collection Amin from 1979 and thereafter vide order dated 25.03.1997, he was allowed to function as Collection Amin regularly. Once petitioner's father had functioned for such a long years right from 1979 till his death on 13.02.2005, mere description that he was a seasonal Collection Amin, will not denude the status of Collection Amin and in particular after he was allowed to function continuously, as such, vide order dated 25.03.1997 passed by Additional District Magistrate in pursuance to the order of this Court in Writ Petition No. 37385 of 1996.
In the present case, the long continuous service, which had put in by the father of the petitioner, his case clearly falls within the ambit of "thought not regularly appointed, but had put in 3 years' continuous service in regular vacancy in such employment."
The similar question in identical facts and circumstances have been the subject matter of consideration by a Division Bench of this Court in the case of State of U.P. & Ors. Vs. Smt. Malti Devi, 2006 (1) ESC 316 (All) (DB), wherein after considering the definition of Government servant as contained in Rule 2 (a) of 1974 Rules, it was held as under.
"It appears that the appellants are under the impression that unless and until Government servant is permanent employee, 1974 Rules is not applicable. The said view is not correct and rather contrary to the Rules."
The same view has again been reiterated by another Division Bench in the case of State of U.P. & Ors. Vs. Panmati Devi & Anr., [2008 (4) ESC 2373 (All)(DB)], wherein also the petitioner was claiming compassionate appointment on the ground that his father was initially engaged as seasonal Collection Peon on 17th February, 1976, thereafter had worked as seasonal Collection Peon for different periods. Subsequently, his services were terminated which was stayed by this Court, as a result, he continued in service till 19th May, 2005 when he died while working as Collection Peon. In such circumstances, the Division Bench held as under.
"Thus, the facts of the case reveal that the working of the father of the petitioner has been continuous for 19 years and during this period, he was paid salary in the regular pay scale. We are satisfy that such working cannot be treated to be seasonal. In such circumstances, the direction issued by the learned Single Judge under the impugned judgment for considering the case of petitioner for compassionate appointment cannot be faulted with. The discretion exercised by the learned Single Judge, in the facts of the present case, is not interfered with."
Facts of the present case are quite similar to the facts of the cases of Malti Devi (supra) and Panmati Devi (supra) before the Division Bench and in view of the principles laid down by the aforesaid two judgments, the impugned order dated 29.04.2008 passed by respondent no. 2 rejecting the claim of the petitioner for compassionate appointment, cannot be sustained and is hereby quashed.
Writ petition stands allowed with the direction to the respondents to consider the claim of the petitioner for grant of compassionate appointment expeditiously, preferably within two months from the date of production of a certified copy of this order before him.
However, in the facts and circumstances, there shall be no order as to costs.
09th September, 2011 VKS