Allahabad High Court
Aishwarya vs State Of U.P. Thru. Prin. Secy. ... on 22 December, 2022
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- WRIT - A No. - 8630 of 2022
Petitioner :- Aishwarya
Respondent :- State Of U.P. Thru. Prin. Secy. Stamp And Registration Lko. And Another
Counsel for Petitioner :- Rakesh Chandra Tewari
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. The petition seeks issuance of a writ in the nature of certiorari quashing order dated 28.07.2022 passed by respondent no.2 which is appended with the petition as Annexure - 1.
2. Learned counsel for the petitioner has submitted that deceased father of the petitioner namely Shri Rajendra Kumar Bajpai was initially appointed as Registration Clerk in the year 1987 and was regularized vide order dated 25.02.2011 (Annexure - 2). It is submitted that services of the father of the petitioner was confirmed vide order dated 28.09.2015 (Annexure - 3) w.e.f. 28.02.2013 and he died on 26.12.2018 during service.
3.Learned counsel has submitted that regularisation of petitioner's father has never been challenged before any Court of law and the case which has been referred in the impugned order while rejecting representation of the petitioner, pertains to other employees and also the same has been filed after death of father of the petitioner. It is also submitted that no order for staying the operation of regularization as well as confirmation order, has been passed till date by any Court. In such circumstances, rejecting the representation of the petitioner by which appointment under U.P. Recruitment of Dependants of Government Servant (Dying-in-Harness) Rules, 1974 was sought, is illegal, arbitrary and has been passed without taking into consideration the correct facts and law applicable in the instant case. The impugned order is bad in law and deserves to be quashed.
4.Per Contra, learned counsel for the State has vehemently opposed the submissions made by petitioner's counsel and has submitted that since the regularization of petitioner's father and others is under challenge in Writ Petition No.18900 of 2019 and the matter is still pending before the Court, petitioner's case for appointment under dying in harness rules may be considered after final outcome of the said petition.
5.It has further been submitted by learned counsel for petitioner that similar controversy has engaged the attention of this Court, which has been decided by means of Special Appeal Defective No. 20 of 2022 preferred by State of U.P. in the case of Shikhar Sahay Lal Srivastava where this Court was on the view that mere pendency of the any writ petition does not in any manner come in the way of the petitioner seeking compassionate appointment for the reason that in the said writ petition no order has been passed by the Court which can has impact on the entitlement of the petitioner for seeking compassionate appointment. There is no reason or material to deviate from the aforesaid judgment and hence this court is of the considered view that the judgment in the case of Shikhar Sahay Lal Srivastava is also admissible in the case of petitioner.
6.Learned counsel has submitted that after final outcome of the aforesaid writ petition, the petitioner can make another representation and the same may be considered in accordance with law. In such circumstances, the instant writ petition is premature and liable to be dismissed.
7.I have heard learned counsel for the parties and perused the record.
8.Perusal of the impugned order dated 28.07.2022 (supra) as also regularization order 25.02.2011 and service confirmation order dated 28.09.2015 (supra) clearly reveals that at the time of death in the year 2018, petitioner's father was in regular service. It is well settled that merely filing a writ petition challenging an order does not affect the operation of the said order until the said order is stayed. Therefore, right of the petitioner for appointment under dying in harness rules cannot be denied on the ground of pendency of a writ petition, especially when there is no stay order.
9.In view of the forgoing discussion, the instant petition is allowed.
10.Impugned order dated 28.07.2022 (Annexure-1) passed by respondent no.2/Inspector General, Stamp & Registration, U.P., Lucknow is hereby quashed.
11.Respondents are directed to consider the case of petitioner for appointment under U.P. Recruitment of Dependants of Government Servant (Dying-in-Harness) Rules, 1974 and pass appropriate order in accordance with law within 30 days from the date of production of a certified copy of this order.
Order Date :- 22.12.2022 (Alok Mathur, J.)
RKM.
