Lallan Yadav vs State Of U.P. And 3 Others
2022 Latest Caselaw 13402 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - A No. - 2247 of 2018
 

 
Petitioner :- Lallan Yadav
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Siddharth Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikram D. Chauhan,J.

Heard Sri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

It is submitted by learned counsel for the petitioner that initially the father of the petitioner was working as Seasonal Collection Amin from the year 1991 and, thereafter, the regularization of service was undertaken after constituting a selection committee. The regularization order was passed on 21st June, 1995 and the same was cancelled within two months on 31st August, 1995. The order of cancellation was subject matter of Writ Petition No.30486 of 1995. In Writ Petition No.28259 of 1995 filed by similarly situated persons, initially an interim order was granted on 31st January, 1995. On the strength of the interim order passed in Writ Petition No.28259 of 1995, the father of the petitioner has got the same benefit of the interim order. However, subsequently the aforesaid writ petitions were dismissed by a common order dated 20th April, 2012 holding that no statutory provision has been brought to the notice of the Court which enables the Seasonal Collection Amin to claim absorption on regular post on the basis of seniority and suitability without publication in any newspaper or name sponsored by the employment exchange. The aforesaid judgment dated 20th April, 2012 was challenged before the Division Bench of this Court in Special Appeal No.996 of 2012. In the aforesaid special appeal an interim order was granted thereby status quo as existing on 20th April, 2012 was directed to be maintained. The aforesaid order was passed on 22nd May, 2012.

Learned counsel for the petitioner submitted that the father of the petitioner on the strength of the aforesaid order continued in service. The father of the petitioner expired on 22nd April, 2014 during the pendency of the special appeal. According to the learned counsel for the petitioner, a substitution application was filed and the aforesaid special appeal was dismissed by judgment dated 16th May, 2017 upholding the judgment of the learned single Judge dated 20th April, 2012. The special appeal of the petitioner was decided in terms of the judgment dated 16th May, 2017 passed in connected Special Appeal No.968 of 2012. The judgment dated 16th May, 2017 passed in Special Appeal No.968 of 2012 is annexed as Annexure 8 to the writ petition. However, the Division Bench in special appeal directed that the order in special appeal will not affect the rights of the petitioner to be considered for regularization under the U.P. Collection Amin Service Rules, 2004 (hereinafter referred to Rules of 2004).

The submission on behalf of the petitioner is that the right of regularization of the father of the petitioner stood protected by the judgment of the Division Bench dated 16th May, 2017 and as such it was imperative for the respondent authorities to have considered the claim of the father of the petitioner for regularization prior to passing of the impugned order. After the death of the father of the petitioner, the respondent authorities have passed an order dated 14th May, 2015 appointing the petitioner on the post of Collection Amin on compassionate ground. The petitioner thereafter working on the aforesaid post. However, after the dismissal of the special appeal by vide order dated 16th May, 2017, the respondent authorities have passed an order dated 24th August, 2017 which records the order of the District Magistrate, Ghazipur dated 23rd August, 2017 instructing that the regular and permanent appointment under the Rules of 2004 would be conducted after seeking applications in this respect. On the strength of the impugned order dated 24th August, 2017, the respondent authorities have stop taking work from the petitioner.

The learned counsel for the petitioner has relied upon a Division Bench judgment of this Court passed in State of U.P. and others Vs. Kuldeep Thakur, 2017 (3) ESC 1137 (All)(DB)(LB) to submit that the death of the father of the petitioner will not take away the right which had accrued for being considered for regularization in favour of the father of the petitioner and the petitioner is entitled to be appointed on compassionate ground after consideration of the claim of the father of the petitioner for regularization as has been protected by judgment dated 16th May, 2017 in the special appeal.

Learned Standing Counsel submits that the petitioner was appointed on compassionate ground during the pendency of the special appeal. The services of the father of the petitioner was earlier regularized. However, the aforesaid regularization order was cancelled, which was challenged by father of the petitioner in the writ petition and the aforesaid writ petition was dismissed by judgment dated 20th April, 2012.

Learned Standing further submits that the aforesaid judgment was challenged by the father of the petitioner before a Division Bench in special appeal and the special appeal has also been dismissed by judgment dated 16th May, 2017.

The submission of the learned Standing Counsel is to the effect that the cancellation of the regular appointment of the father of the petitioner stands fortified by the fact that the special appeal was dismissed. However, learned Standing Counsel does not dispute the fact that the Appellate Court by judgment dated 16th May, 2017 protected the right of the father of the petitioner to be considered for regularization under the Rules of 2004.

It is further submitted by learned Standing Counsel that by means of the impugned order the District Magistrate, Ghazipur has directed to consider the applications of the appellants in special appeal for regularization in accordance with the Rules of 2004 and the same would be considered at appropriate point of time.

In rebuttal, learned counsel for the petitioner submits that the respondent have stop taking work from the petitioner on the strength of the impugned order dated 24th August, 2017. Although, the aforesaid order does not terminate the services of the petitioner and it is a settled law that compassionate appointment is to be treated as a permanent appointment and the service as such could not have been dispensed with by the respondents without an inquriy and without passing an order of termination since in the present case no order of termination has been passed as such the action of the respondents in stopping the petitioner from working is untenable under law.

It is to be seen that in the present case, the father of the petitioner was initially working as Collection Amin and his services were regularized by the respondents by order dated 21st June, 1995. However, the said order was cancelled after two months on 31st August, 1995. The aforesaid order dated 31st August, 1995 was subjected to challenge by the father of the petitioner in Writ Petition No.30486 of 1995. The aforesaid writ petition was dismissed by means of judgment dated 20th April, 2012 whereby it was held that no provision has been brought to the notice of this Court which would enable the Collection Amins to claim absorption on regular post on the basis of seniority and suitability and that too without publication in any newspaper or name sponsored from the employment exchange. Father of the petitioner challenged the aforesaid judgment in Special Appeal No.996 of 2012, which was disposed of in terms of judgment dated 16th May, 2017 passed in Special Appeal No.968 of 2012.

The Appellate Court has by judgment dated 16th May, 2017 has upheld the judgment passed by the learned single Judge and as such the cancellation of the regularization of the father of the petitioner stood finalized. However, the Appellate Court had protected the right of the father of the petitioner for regularization by holding that the order dated 16th May, 2017 shall not affect the right of the petitioner to be considered for regularization under the Rules of 2004.

It is to be seen that during the pendency of the special appeal the father of the petitioner expired in the year 2014 and the petitioner was granted compassionate appointment by order dated 14th May, 2015 and the petitioner in pursuance to the aforesaid order had joined the duties. The respondents after the judgment in the special appeal passed the impugned order dated 24th August, 2017 whereby taking notice of the judgment dated 16th May, 2017 passed in the special appeal, the District Magistrate, Ghazipur has directed that claim for regularization shall be considered in pursuance to the Rules of 2004 in accordance with law on the basis of an application received. The Appellate Court had protected the right to be considered for regularization in respect of the father of the petitioner and as such the right accrued in favour of the father of the petitioner further gave rise to consequent claim for compassionate appointment provided the service of the father of the petitioner is declared regular and the same has to be considered in view of the law laid down by this Court in the case of State of U.P. and others Vs. Kuldeep Thakur (supra). The Division Bench has held that:-

"10. The consideration of the right of being regularized by operation of law while in force had already accrued in favour of the father of the respondent petitioner, and his death in between further gave rise to the expected consequential claim of compassionate appointment of the petitioner, provided his father's services were declared regular. The consideration of such right, whether had accrued, does not get eclipsed nor could it be abandoned. If the consideration results in the services of the petitioner's father becoming regular, then the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be an impediment for the respondent petitioner to be considered for compassionate appointment. The appellant State and it's authorities therefore cannot escape this exercise and defeat the right of consideration by their inaction or the absence of timely and prompt action. Such exercise of consideration will not evaporate because of untimely death which is a fortuitous circumstance so as to result in any advantage to the State.

11.Apart from this, in the present case those who were at par with the father of the respondents had been extended the benefit of regularization. This distinguishing feature therefore is in addition to the issues involved in the case of Pawan Kumar Yadav (supra) and consequently, the claim of the respondent petitioner was at least entitled for consideration by the State Government in the light of the observations made hereinabove.

Learned counsel for the appellant State submits that the services of the father of the respondent petitioner could not be straight away treated to have been regularized and the learned Single Judge erred in issuing directions for consideration of appointment on compassionate basis of the petitioner. We agree with the submissions of the learned standing counsel for the appellant and to that extent, the judgment cannot be sustained. Learned Single Judge also does not appear to have noted the judgment of Pawan Kumar (supra).

12. Consequently, we modify the judgment dated 22.11.2016 to the extent that it shall be open to the appellant State to consider the status of regularization of the father of the respondent and then proceed to take an appropriate decision with regard to the claim of the respondent petitioner for compassionate appointment in the light of the observations made hereinabove."

The claim of the petitioner to compassionate appointment arises out of the right of the father of the petitioner to be considered for regularization and the Appellate Court has protected the the aforesaid right. The exercise for regularization till date has not been completed by the respondent no.2 and the respondent no.2 neither passed any termination order against the petitioner nor he is taking work from the petitioner and as a result of the same, the rights of the petitioner for compassionate appointment is being affected.

Learned Standing Counsel has not disputed the fact that the claim regularization of the father of the petitioner is to be considered in light of the judgment of the Appellate Court and has further submitted that the impugned order in fact has been passed in furtherance of the judgment of this Court dated 16th May, 2017.

Under the circumstances, it is hereby directed that the claim for regularization of the father of the petitioner shall be considered by the respondent no.2 in accordance with law and in view of the observation made by the Division Bench of this Court in special appeal by order dated 16th May, 2017 within a period of three months from the date of production of a certified copy of this order.

The claim for compassionate appointment of the petitioner shall be subject to the aforesaid decision of the respondent no.2.

The writ petition stands disposed of.

Order Date :- 19.9.2022

Bhaskar