Hemant Kumar vs State Of U.P.Thru.Prin.Secy. ...
2022 Latest Caselaw 5906 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 8
 

 
Case :- WRIT - A No. - 6364 of 2021
 

 
Petitioner :- Hemant Kumar
 
Respondent :- State Of U.P.Thru.Prin.Secy. Social Welfare And Ors.
 
Counsel for Petitioner :- Mohd. Ali,Mohd Wajid Irfan
 
Counsel for Respondent :- C.S.C.
 
with
 
Case :- WRIT - A No. - 19658 of 2021
 

 
Petitioner :- Smt. Madhuri
 
Respondent :- State Of U.P. Thru. Prin. Secy. Social Welfare Lko.And Ors.
 
Counsel for Petitioner :- Mohd. Ali,Mohd Wajid Irfan
 
Counsel for Respondent :- C.S.C.
 

 

 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Mohd. Ali, learned counsel for the petitioner as well as Sri Vishal Verma, learned counsel appearing for respondent No.s 1 to 5.

2. Since common questions of facts and law are involved in both the petitions and are connected vide order dated 6.9.2021, hence, they are being decided by this common judgment and order.

3. In Writ A No.6364 of 2021 petitioner Hemant Kumar has challenged the order dated 4.3.2020 by which he has been removed from services while in Writ A No.19658 of 2021 the petitioner has sought quashing of the order dated 16.8.2019 thereby denying her claim of family pension. The ground of challenge of both the impugned orders is that they are based on the sole premise that services of father of the petitioner of writ A No.6364 of 2021 Hemant Kumar and husband of the petitioner of Writ A No.19658 of 2021 Smt. Madhuri was dispensed with by means of order dated 21.11.2000. Both the orders are passed by Director, Social Welfare, U.P., Lucknow.

4. The case of the petitioner of writ A No. 6364 of 2021 is that his father late Sri Shiv Shankar was a permanent government servant and was working on the post of Village Development Officer, Harijan Kalyan at Vikas Khand Hilauli, District Unnao. On account of serious illness he proceeded on leave in the month of February, 1994 and due to seriousness of his disease which was diagnosed as mental disease Depressive Psychosis, Right Pulmonary Kocks and Intestine Tuberculosis etc. and was confined to bed. After recuperating  from the said disease he tried to join on the said post sometime on 25.5.1995  but he was not permitted to join and later he was asked to appear before a medical board and submit fitness certificate. Despite repeated efforts he was not permitted to join  his duties and in the meantime his illness re-surged and he could not get proper medical treatment and was confined to bed and finally expired on 14.10.2009.

5. The death of his father led to severe financial crisis and the mother of the petitioner moved an application requesting the authorities to pay the death/terminal dues admissible  as well as for compassionate appointment of his son (the present petitioner). On the said representation made to the Additional District Development Officer, Social Welfare, Unnao, the case of the petitioner was forwarded to Director, Social Welfare  on 7.6.2010. The claim of the petitioner for compassionate appointment under Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 was favourably considered and the petitioner was appointed on the post of Junior Clerk in the pay scale of 5200-20200. in grade pay of Rs.1900/-regular employment and posted with District Welfare Officer, Unnao.

6. The petitioner continued to discharge his duties of the said post while, on the other hand, his mother Smt. Madhuri Devi pursued her claim for family pension and continued to submit representations to the concerned authorities. As her grievance for family pension could not be redressed she approached this Court by filing writ petition No.3179 of 2019 (S/S) which was disposed of by means of order dated 1.2.2019 directing the Director, Social Welfare, U.P. Lucknow to decide the representation by a reasoned and speaking order. The case for family pension could not be considered as the service book of late Sri Shiv Shankar could not be traced by the respondents and subsequently contempt petition was also preferred  for compliance of the order dated 1.2.2019 passed in writ petition No.3179 (S/S) of 2019. It is after the notices were issued in contempt case that the respondents for the first time informed the petitioner and the family members that termination order dated 21.11.2000 has been passed against late Sri Shiv Shankar.

7. It is only after this Court was informed about the fact that the services of Sri Shiv Shankar had been terminated during his lifetime, that show cause notice was issued to the petitioner on 7.7.2020 for misleading the higher authorities concealing the fact about termination of services of late Sri Shiv Shankar and it was alleged that he has obtained the appointment on compassionate grounds in fraudulent manner after concealing all relevant facts.

8. The petitioner replied to the show cause notice where he contested the aspect of concealing the said fact and further stated that the family members came to know about termination of the services of Sri Shiv Shankar only through letter of the District Social Welfare Officer written on 8.4.2019. After receiving the reply the impugned order of termination has been passed. In the aforesaid circumstances by means of the present writ petition the petitioner has challenged the order of his termination dated 14.3.2020 stating that the same is illegal and arbitrary in as much as the petitioner and his mother were never aware about termination of services of his father dated 21.11.2000 and further stated that such an order has never been communicated to his father in his lifetime nor to any of the family members despite the fact that the mother has been claiming admissible dues of her husband as well as family pension. This aspect of the matter has never been communicated for the last more than a decade and it is only after the contempt petition has been filed that the said order has been passed indicating that services of late Sri Shiv Shankar were terminated prior to his demise.

9. In the aforesaid circumstances, by means of the present writ petition the petitioner has challenged the order of his termination dated 4.3.2020 stating that the same is illegal and arbitrary in as much as the petitioner and his mother were never aware about termination of services of his father dated 21.11.2000 and has further stated that the said order has neither been communicated to his father nor to any of his family members. Despite the fact that mother has been claiming admissible dues of her husband as well as family pension. This aspect of the matter has never been communicated for the last more than a decade and only after contempt petition has been filed that the said order has been passed indicating that services of late Sri Shiv Shankar were terminated prior to his demise.

10. Learned counsel appearing for the respondents, on the other hand, has supported the impugned order  and submitted that father of the petitioner had not attended the office for more than six years due to which a publication was made in the Daily news paper Dainik Jagran and after not having responded to the said publication the services were terminated by means of order dated 21.11.2000.

11. In any view of the matter, neither in the counter affidavit nor in any affidavit filed by the respondents the order dated 21.11.2000 has been annexed. There is no material on record which can indicate that even if the said order was in fact passed or it was ever served upon the petitioner or any of his family members. It has also been submitted by the petitioner that not only was this aspect of termination of his services never known to the petitioner and his family members but a first information report was also lodged against the petitioner and his mother under Section 420 of IPC vide F.I.R. No.336 of 2020 at police station Kotwali District Unnao. In the said first information report it was alleged that the petitioner has deliberately concealed the material facts and obtained appointment in fraudulent manner and, hence, criminal prosecution was sought to be initiated against them. Investigation was carried out and during the investigation the official records of the opposite parties were also summoned and checked by the investigating officer. The investigation was concluded and final report was filed the court of competent jurisdiction where it is clearly recorded that the opposite parties could not produce any document which can indicate that the service of Sri Shiv Shankar had been terminated. The department also could not produce any document from which it could be gathered that the petitioner or his mother had fabricated or forged any document in order to obtain appointment in the respondent department. It has further been submitted that the said final report has been duly accepted.

12. Petitioner has also made a prayer for quashing of the termination order dated 21.11.2000 passed by Director, Social Welfare by which services of father of the petitioner has been terminated.

13. I have heard learned counsel for the parties and perused the record and from the record it is clear that father of the petitioner had been suffering of certain mental disease of Depressive Psychosis, Right Pulmonary Kocks and Intestine Tuberculosis etc. and was confined to bed for very long period of time for 194 days. When he recuperated his health he treed to join the job but he was not permitted to do so and was asked to submit fitness certificate. Undoubtedly,he remained absent from his office till his death . The opposite parties undoubtedly, considering the fact that he had remained absent for number of years had made a publication.

14. The first aspect to be considered by this Court is the rights of the petitioner to be appointed under the U.P. Government Servant (Dying in Harness) Rules, 1974 would squarely rest upon the fact as to whether the appointment was obtained by him after concealing the fact about removal of his father from the services by order dated 21.11.2000. It is noticed that the order dated 21.11.2000 has not been produced before this Court. In case such an order was in existence the same would have necessarily been filed by the opposite parties in their counter affidavit where there is a direct challenge to the same. The other aspect which requires consideration is that even if for the sake of arguments it is assumed that the services of the father of the petitioner was terminated on 21.11.2000 then how could the petitioner be given appointment on compassionate grounds. If the order of termination was in existence then definitely it would have been in the knowledge of the department concerned and there would have been no occasion to consider the application of the mother for grant of family pension as well as the petitioner for appointment on compassionate ground. The very fact that the application of the petitioner was first considered at the level of the Additional Director and subsequently was forwarded to Director, Social Welfare and it is only in pursuance of the direction issued by the highest officer of the department that the proceedings for appointment of the petitioner on compassionate ground was undertaken. It cannot be believed that at the time of appointment of the petitioner the fact of termination of services of his father would have escaped the knowledge of the competent authority. The petitioner could not have been appointed in case these facts were correct and the order of termination was in existence.

15. This Court has given conscious consideration to the above facts. Firstly, the petitioner has been duly appointed on compassionate ground and secondly the first information report having been lodged a detailed inquiry has been conducted by the investigating officer where also the order of termination of the services of the father of the petitioner could not be produced nor its existence could not established and, hence, it cannot be said that there was any concealment or any fraud played by the petitioner in securing his appointment on compassionate ground and, hence, on the basis of the aforesaid facts this Court is of the considered opinion that the order of termination of the father of the petitioner is only an afterthought which came into existence probability subsequent to filing of the contempt petition by mother of the petitioner The petitioner having been appointed in 2010 continued to work till 2020 when the impugned order was passed. It is also not believable that for ten years the opposite parties were unaware of correct factual position regarding termination of the services of the father of the petitioner. In the aforesaid circumstances there is no material to indicate that the services of the father of the petitioner were terminated. The opposite parties have failed to discharge their burden or indicate any material before this Court that services of his father was terminated on 21.11.2000 or that the appointment was secured by the petitioner concealing the said fact.

16. I do not find any infirmity with the appointment of the petitioner nor is there any material even to suggest that the petitioner has played fraud  or obtained his appointment illegally or arbitrarily dehorse the rules.

In Re: Writ A No.6364 of 2021:-

17. In view of the above, the writ petitions are allowed. The impugned orders dated 4.3.2020 and 16.8.2019 passed by Director, Social Welfare, U.P., Lucknow are quashed. The opposite parties are directed to allow the petitioner of writ A No.6364 of 2021 to join forthwith and pay all consequential benefits from the date of his termination till the date of his joining.

In Re: Writ A No.19658 of 2021:-

18. In the aforesaid facts and circumstances and in view of the detailed judgment wherein this Court has returned a finding that the services of the petitioner's husband were never terminated by means of order dated 21.11.2000 which order was not in existence nor has been placed on record and also consider in the fact that the services of petitioner's husband were never terminated, the writ petition is liable to be allowed entitling her all consequential benefits as her husband died in harness as per the findings of this Court in writ A No.19658 of 2021, the petitioner who is widow of late Shiv Shanker would be entitled to all consequential benefits as her husband died in harness, as such, opposite parties are directed to release family pension to the petitioner with effect from 14.10.2009 when her husband died in harness including death-gratuity, G.P.F., leave encashment, G.I.S. and balance salary etc. within a period of four months and in case the payment is not made within the stipulated period, she will be entitled to the interest @ 6 percent per annum from the date it became due.

Order Date :- 5.7.2022                                                     (Alok Mathur, J.)
 
RKM.