Allahabad High Court

Sarvesh Kumar vs State Of U.P. Thru ... on 7 April, 2023

Bench: Karunesh Singh Pawar




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 17.03.2023
 
Delivered on 07.04.2023
 
Court No. - 21
 
Case :- WRIT - A No. - 5812 of 2016
 
Petitioner :- Sarvesh Kumar
 
Respondent :- State Of U.P. Thru Prin.Secy.Revenue Deptt.Up Govt.Lko.And Ors
 
Counsel for Petitioner :- Ajay Sharma
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Karunesh Singh Pawar,J.

1. By this petition, the petitioner has sought quashing of impugned order dated 04.03.2016 passed by opposite party no. 3 contained in Annexure No. 1 to this petition by which his claim for appointment on compassionate grounds in place of his father Ramesh Chandra who was seasonal collection peon has been rejected.

2. A further writ of mandamus is sought commanding opposite parties to appoint the petitioner on any suitable post as per his qualification/eligibility under the U.P. Recruitment of Dependents Servant (Dying in Harness ) Rules, 1974 (herein after referred to as "Rules 1974").

3. Brief facts of the case are that father of the petitioner late Ramesh Chandra was initially appointed as collection peon under the opposite parties in the year 1989. Thereafter he was disengaged from the service and then he filed a writ petition No. 12013/1990 and this Court vide interim order dated 26.11.1990 directed opposite party No. 3 to allow and take work from him. In compliance thereof, opposite party no. 3 allowed him to work vide order dated 30.09.1991 and since then he continuously worked on the said post without any break in service, however, during the course of service, the late father of the petitioner died in harness in the capacity of seasonal collection peon on 07.10.2013. Even at the time of death of his father, no complaint, inquiry or punishment was pending against him. The deceased father of the petitioner late Ramesh Chandra left behind the following legal heirs:-

(i) Smt. Tejrani (wife) aged about 51 years.

(ii) Sarvesh Kumar (son) aged about 32 years.

(iii) Rakesh Kumar (son) aged about 21 years.

4. Immediately after demise of his father, the petitioner submitted an application to opposite party no. 3 on 15.10.2013 for consideration of his appointment on any suitable post on compassionate grounds. The petitioner is having basic qualification i.e. intermediate and hence, contends that he fulfills all the formalities for appointment under Rules 1974.

5. The other legal heirs of the deceased employee had no objection regarding the appointment of the petitioner on any suitable post on compassionate grounds. No objection certificate given by them is on record as Annexure No. 8. Several applications were given by the petitioner, however, no decision was taken by the opposite parties, hence, the petitioner made an application to his Excellency the Governor on 12.08.2015 and on the said application the District Magistrate was directed to take necessary action on the application of the petitioner for compassionate appointment.

6. The Additional District Magistrate, Finance and Revenue, Unnao, vide its order dated 04.09.2015 directed opposite party no. 3 to dispose of the application of the petitioner. Opposite party no. 3 vide impugned order dated 04.03.2016 has rejected the claim of the petitioner mainly on the ground that since at the time of death of the deceased employee, he was not regular and as per the opinion given by the District Government Counsel Civil, the claim of the petitioner was rejected by the impugned order.

7. Learned counsel for the petitioner submits that late father of the petitioner had worked on the post of seasonal collection peon for about 18 years since the date of his appointment pursuant to interim order granted by this Court, therefore, the claim of the petitioner has wrongly been rejected.

8. Learned counsel for the petitioner further submits that father of the petitioner though was not regularly appointed, he has put in more than three years of continuous service against the regular vacancy and therefore, he comes under the definition of the Government Servant as provided under Rule 2(a)(3) of 1974 Rules.

9. He further submits that opposite party no. 3 while rejecting the claim of the petitioner has misread the rule 2(a)(iii) of the Rules 1974.

10. Learned counsel for the petitioner further submits that regular vacancy pre-supposes a post which may either be substantive or temporary and under service jurisprudence, the expression substantive post and temporary post have definite meaning. On such post there may be a substantive vacancy or a temporary vacancy.

11. It has been further submitted that father of the petitioner was engaged against a particular duty and post and that work is of perennial in nature.

12. It has been further submitted that in the similar circumstances on the same footings, opposite party no. 3 had appointed one Smt. Siyapati wife of late Medi Lal, Smt. Chandra Prabha Verma wife of late Arvind Kumar Verma and Smt. Geeta Pandey wife of late Satya Narayan Pandey, in spite of the facts that services of the above named deceased employee were not regularized by the department till the date of their death. The appointment orders of the above named three persons are on record as Annexure No. 13, 14 and 15 to the writ petition.

13. It is further submitted that the petitioner's father has put in 18 years of uninterrupted continuous service against a substantive vacancy in the pay scale and allowances admissible under the rules and he was getting all the service benefits, like increment, leave encashment, revision of pay scale. The benefit of fifth pay scale had also been provided to late father of the petitioner. Photocopy of the the service book of late father of the petitioner is on record.

14. Learned Standing Counsel though has opposed the petition, however, does not dispute the fact that the alleged father of the petitioner has continuously put in service about 18 years on the post of seasonal collection peon. Service record of the late father of the petitioner are on record.

15. A perusal of the record shows that the deceased has performed continuous service on the post of seasonal collection peon consistently for a period exceeding three years. Further a perusal of service record also shows that the deceased was given regular pay scale on the basis of the recommendation of fifth pay commission. He was given the pay scale, dearness allowance and HRA etc. The pay bills of the deceased are also on record which are in excess of three years and which unambiguously show that the deceased was given pay for every month for a period exceeding thee years. In the counter affidavit also there is no denial of the fact that the deceased father of the petitioner has not continuously worked for a period of 18 years against the post of seasonal collection peon. Only this much has been said that at the time of the death of the late father of the petitioner he was not a regular employee . It has been averred in the counter that late father of the petitioner was allowed to continue to work in compliance of the interim order dated 26.11.990 passed in writ No. 12013/1990 and subject to the final decision in the writ petition. Rule 2(a) of 1974 Rules are extracted below:-

"2. Definitions.- 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.

Explanation.-"Regularly appointed" means appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be;"

16. The Division bench of this Court while deciding the special appeal defective No. 264/2018 has interpreted the appointment of a part time tubewell operator, it was held that mere prefixing of the term "part time" will not change the nature of appointment that otherwise specifies parameters of a Government Servant as required in Rule 2(a) of the Rules 1974. The relevant para 16 of the said order is as under:-

"If all these facts be scaled at the standards of the definition of "Government Servant" given under Rule 2 (a) of the Rules of 1974, we are having no hesitation in holding that the appellant-petitioner's father is a Government Servant as per Rules of 1974. While giving appointment to father of the appellant-petitioner, a regular procedure was adopted. In the order of appointment itself, the respondents in quite unambiguous terms stated that the appointment shall be as Part Time Tube Well Operator but at par with service conditions relating to Regular Time Tube Well Operator. This fact is sufficient to establish that the appointment was against a regular vacancy and in the backdrop from the inception regular pay-scale was allowed to him. The appointment of father of the appellant-petitioner, for all purposes, satisfies the requirements of Rule 2 (a) of the Rules of 1974 and, as such, he was definitely a Government Servant. Mere prefixing of the term "Part Time" will not change the nature of appointment that otherwise satisfies the parameters of a "Government Servant"."

17. Again while dealing with the applicability of

Rule 2(a)(iii) 1974 in Special Appeal No. 844/2014 "State of UP vs. Veer Singh", it was held that claim of the petitioner fulfills the requirement envisaged under Rule 2(a)(III) of 1974 Rules and upheld the order of the Writ Court wherein it was observed that though the father of respondent-petitioner was not regularized on the post, yet he has received salary of collection peon regularly for three years on the regular vacancy of collection peon, therefore, he was held to be a government servant. Relevant paragraph no. 7 and 8 are extracted below:-

"7. Perusal of impugned judgment and order reveals that the Writ Court has observed that late Ganga Ram, father of petitioner-respondent has been paid regular salary from January, 1996 till his death in December, 1998. Therefore, it cannot be said that at the time of his death father of petitioner-respondent had not worked for a period of three years against substantive vacancy of collection peon in the Tehsil concerned. Thus, claim of petitioner fulfils the requirement as envisaged under Rule 2(a)(iii) of the Rules, 1974. The Writ Court in the impugned order has also observed that though father of petitioner-respondent was not regularised on the post, yet he has received salary of collection peon regularly for three years on the regular vacancy of collection peon, therefore he is held to be a Government Servant. The Writ Court further held that since the deceased employee (father of petitioner-respondent) had worked for a period of three years against substantive vacancy as collection peon before his death, therefore, the petitioner-respondent is entitled for compassionate appointment under the provisons of Rules, 1974.

8. Having heard, learned counsel for the parties and on perusal of record, we are of the considered view that there is no illegality or infirmity in the findings recorded by the Writ Court in respect of the claim of petitioner-respondent which is based on consideration of relevant Rules. But we are not agreeable with the view taken by the Writ Court about issuing an outright direction to the authorities concerned to give appointment to the petitioner, which is neither desireable nor sustainable in the eyes of law. Rather a direction ought to have been issued to the respondents to consider the candidature of the petitioner for the post in question as per relevant Rules."

18. Likewise in the case of Sachin Kumar Pandey Vs. State of U.P. and others", in Writ A No. 9760 of 2017, this Court has held as under:-

It is therefore, evident from the definition of the expression 'Government servant' as contained in those Rules that they do not stand restricted in their application to permanent employees alone but also take within their ambit government servants though temporarily engaged who had been regularly appointed in such employment or though not regularly appointed had put in three years continuous service in a regular vacancy in such employment. The impugned order itself notices the fact that the father of the petitioner was working under the respondents for more than 30 years prior to his untimely demise on 03 January 2016. Consequently and for all the aforesaid reasons the impugned order is rendered unsustainable.

19. In the present case also, father of the petitioner though was not regularized on the post of seasonal collection peon, yet he has received the salary of collection peon regularly for a period approximately 18 years. He was given the regular pay scale and he was given the benefit of the fifth pay scale. He was given all the other benefits, thus, I have no hesitation in holding that the deceased father of the petitioner was a government servant under Rule 2(a)(iii) of Rules 1974.

20. A perusal of the appointment order of the petitioner shows that the petitioner along with two others were permitted to work on the post of collection peon and were provided the salary and allowance as per the rules. This Court has also taken notice of the fact that similarly situated three persons have been appointed namely Smt. Siyapati wife of late Medi Lal, Smt. Chandra Prabha Verma wife of late Arvind Kumar Verma and Smt. Geeta Pandey wife of late Satya Narayan Pandey under Rules 1974 despite the fact that all three deceased employees were not regularized by the department till the date of their death. The appointment orders of the aforesaid persons are on record as Annexure No. 13, 14 and 15 and specific pleading in this regard has been made in para 22 of the writ petition to which no specific reply has been given by the State, only this much has been said that the case of the aforesaid three employees are different, however, it has not been explained as to how the cases of the three employees mentioned in para 22 of the writ petition are different than that of the petitioner.

21. Standing Counsel as well as the officer namely Amrit Lal, Nai Tehsildar, Tehsil Purwa, District Unnao, who is present in Court could not clarify as to how the cases of all three employees mentioned in para 22 are different than that of the petitioner.

22. In view of the above and considering the fact that the late father of the petitioner though was not regularly appointed, however, admittedly has put in more than three years of continuous service against the regular vacancy as a seasonal collection peon entitles him to be treated as Govt. Servant under Rules 1974 and the petitioner therefore, is entitled to seek compassionate appointment on the death of his deceased father being his dependent. Hence, the claim of the petitioner is covered under Rule 2(a)(iii) of Rules 1974 and due to wrong consideration of the claim of the petitioner under the aforesaid rules, the impugned order is bad in law and is hereby quashed.

23. The writ petition succeeds and is allowed.

Respondent no. 3 is directed to reconsider the claim of the petitioner in view of the observation made herein above and pass a reasoned and speaking order within a period of one month from the date of production of certified copy of this order.