Allahabad High Court
Sandeep Kumar Yadav vs State Of U.P. And 2 Others on 12 May, 2022
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Court No.49
Case :- WRIT - A No. - 17252 of 2021
Petitioner :- Sandeep Kumar Yadav
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Vipin Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Siddhartha Varma, J.
The present writ petition is being decided on a pure question of law as to whether would the petitioner's father was to be treated as a Government employee on the date when he died when the regularisation order was passed after his death ?
The facts of the case are that the petitioner's father was initially appointed on the post of Seasonal Collection Peon on 1.2.1995 in Tehsil Gyanpur, District Sant Ravidas Nagar (Bhadohi). After having put in substantial number of years of service, he was considered eligible for regularisation as per the U.P. Collection Peons' Service Rules, 2004. A list of peons who were to be regularized was issued on 24.12.2016 in which the petitioner's father was shown at Serial No.9. However, since the petitioner's father was above 45 years of age, outright regularisation was not done but a permission was sought from the State Government for the relaxation of age. The State Government relaxed the age of the petitioner's father and considered him to be a fit case for being regularized on 22.2.2019. However, in between, on 30.11.2017, the petitioner's father died. The petitioner thereafter prayed for an appointment under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the "Dying in Harness Rules") on 6.3.2019. The District Magistrate vide letter dated 15.3.2019 sought directions from the Additional Chief Secretary, Revenue Department, Government of Uttar Pradesh, Lucknow as to what was to be done with regard to the case of the petitioner. However, when no response was there from the side of the respondent-Additional Chief Secretary, the petitioner filed a writ petition being Writ-A No.16701 of 2019 (Sandeep Kumar Yadav vs. State of U.P. & Ors.) wherein on 22.10.2019, the following order was passed :-
"Petitioner's father was employed as Seasonal Collection Peon. A decision had been taken by the District Magistrate during his lifetime to regularise his services. It appears that orders of regularisation could not be passed as a recommendation had been made to the State Government for grant of relaxation as the father of petitioner has crossed the maximum age fixed in the rules. The State Government has granted such permission in accordance with law. It is therefore, submitted that petitioner's father would be covered within the definition of Government Servant and, therefore, on account of his death in harness on 30.11.2017, petitioner's claim for grant of compassionate appointment is liable to be considered under Uttar Pradesh Dying in Harness Rules, 1974. Representation of petitioner made in that regard since has remained without any decision taken by the Committee as such the petitioner has approached this Court.
Perusal of record would go to show that District Magistrate, Bhadohi has sought some clarification from the State Government in the matter relating to grant of compassionate appointment. In the facts and circumstances of the present case, it would be appropriate to direct second respondent to respond to the letter of the District Magistrate, Bhadohi dated 15.03.2019 within a period of six weeks from the date of presentation of a certified copy of this order. The District Magistrate, Bhadohi i.e. respondent No.3 shall pass appropriate orders in respect of petitioner's claim within a further period of three months thereafter."
In response thereof the District Magistrate, Bhadohi passed the order dated 19.9.2020 which has been challenged in the instant writ petition.
Primarily by the order dated 19.9.2020 the claim of the petitioner has been refused by saying that the petitioner's father was not a regular Government servant as has been defined in the Dying in Harness Rules. By the impugned order, it has been virtually said that since as per Rule 2(a) of the Dying in Harness Rules, the petitioner's father was not a Government Servant, the petitioner was not entitled for getting an appointment under the Dying in Harness Rules.
Learned counsel for the petitioner has relied upon a judgment of this Court dated 6.10.2021 passed in Writ-A No.2988 of 2021 and has submitted that had the petitioner's father been regularized as per his entitlement before his death, then the petitioner's claim could have been considered. However, since the lethargy of the State Authorities had delayed the regularisation of the petitioner's father, the regularisation was not done during his life-time. He submits that if the regularisation had been done during the life-time of the petitioner's father, then the petitioner would have definitely been entitled for appointment under the Dying in Harness Rules.
Learned Standing Counsel, however, relying upon a judgment rendered by a Full Bench of this Court in Pawan Kumar Yadav vs. State of U.P. & Ors. reported in 2010 (8) ADJ 664 has submitted that since the petitioner's father was not a Government servant as has been defined in Rule 2(a) of the Dying in Harness Rules, the petitioner was not entitled to be considered for appointment.
Having heard learned counsel for the petitioner and learned Standing Counsel, the Court is of the view that when the matter with regard to age relaxation had been forwarded to the Additional Chief Secretary, Revenue Department, Government of Uttar Pradesh, Lucknow much before the father of the petitioner had died, then the case of the petitioner could not be jeopardized simply because the age relaxation was conveyed to the District Magistrate on 22.2.2019 i.e after the petitioner's father had died on 30.11.2017. The petitioner ought to be given the advantage which would have accrued to him. Had the State acted with alacrity, the District Magistrate could have passed the order on the age relaxation of the petitioner's father before his death.
Under such circumstances, the Court presumes that the advantage which the petitioner would have got, had the petitioner's father been regularized before his death, should have been extended to the petitioner. Under such circumstances, the order dated 19.9.2020 is quashed and is set-aside. The matter is remitted back to the District Magistrate, Bhadohi who shall, within a period of one month from the date of presentation of a certified copy of this order, reconsider the case of the petitioner treating that the petitioner's father was a regularized employee at the time of his death.
The writ petition is, accordingly, partly allowed
Order Date :- 12.05.2022
GS
(Siddhartha Varma, J.)
