Kamal Kumar Mishra vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 409 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 
Case :- WRIT - A No. - 8397 of 2022
 
Petitioner :- Kamal Kumar Mishra
 
Respondent :- State Of U.P. Thru. Prin. Secy. (Cooperative) Civil Sectt. Lko. And 2 Others
 
Counsel for Petitioner :- Prashant,Nirankar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

Heard Sri Nirankar Singh, learned Counsel for the petitioner and learned Standing Counsel.

The instructions filed by the learned Standing Counsel is taken on record.

The present petition has been filed by the petitioner challenging the order dated 24.05.2022 whereby the application of the petitioner for appointment on compassionate ground has been rejected mainly on the ground that in terms of the mandate of The U.P. Co-operative Collection Fund and Amins and other Staff Service Rules, 2002 (in short "the 2002 Rules"), there is no provision for appointment under The U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974.

The facts in brief are that the father of the petitioner, namely, Dev Narayan Mishra was appointed as Co-operative Kurk Amin, who died in harness on 22.11.2019. As the petitioner was totally dependant on his father, he moved an application for appointment under the Dying-in-Harness Rules, 1974. In the meantime, the petitioner preferred a writ petition before this Court, however, during the pendency of the writ petition, an order rejecting the claim of the petitioner was passed, as such, Writ-A No.2872 of 2022 was disposed off on 09.11.2022 permitting the petitioner to challenge the rejection order which has led to filing of the present writ petition.

The Counsel for the petitioner argues that the claim of the petitioner has been rejected mainly on the grounds that in 2002 Rules, there is no provision for appointment on compassionate ground.

Learned Standing Counsel, through the instructions reiterates the said position and argues that guidance have been sought from the State Government which is pending.

The Counsel for the petitioner on the strength of the 2002 Rules itself argues that the Rule 36 of the said Rules clearly stipulates that with regard to the matters not specifically referred in these Rules or special orders, the same shall be governed by the Rules and Regulations and the orders applicable generally to the government servant who are employed in connection with the affairs of the State. He places strong reliance on the judgment of this Court in the case of Kaushlendra Kuwar vs Registrar, Co-operative Societies, U.P., Lucknow and others decided on 05.04.2007 in Writ-A No.44810 of 2001 wherein this Court was confronted with the similar claim made by a legal heirs of an employee who was appointed in Collection Wing of the District Assistant Registrar. This Court had the occasion to deal with the contention including the stand taken by the State that the case of the petitioner therein cannot be considered as the petitioner therein was not covered by the 2002 Rules and thus he was not entitled for appointment.

The stand of the State as recorded in the judgment of Kaushlendra Kuwar (Supra) is recorded herein for the sake of remedy. The Court after considering the mandate of the 2002 Rules as well as consider the mandate of Rule 36 held that the petitioner therein would be entitled for consideration of appointment under Dying-in-Harness Rules and consequent directions were issued. The relevant paragraphs wherein the Court held are quoted hereinbelow:

"Learned standing counsel supporting the action of the respondents contended that only Amins and their Sahyogies are entitled for compassionate appointment according to 2002 Rules read with letter of the State Government dated 22.12.2004. The petitioner not being covered by the said 2002 Rules is not entitled for compassionate appointment.

I have considered the submissions of counsel for the parties and perused the record.

In the counter affidavit the State has taken stand in paragraph 5 that the Rules have been framed namely Uttar Pradesh Cooperative Collection Fund and the Amins and Other Staff Service Rules, 2002 which does not contain any provision for giving employment on compassionate ground to the deceased employee. The appointment on compassionate ground can be given only after receipt of the direction from the State Government. The said plea has again been taken in paragraph 6. In supplementary counter affidavit they have come up with the letter of the State Government dated 22.12.2004 which mentions that only Amins and Sahyogies are covered under 2002 Rules and other employees of the Collection Wing are not entitled for compassionate appointment.

... The appointment of Amins and their Sahyogies in the Collection Department were on commission basis. According to the earlier U.P. Sangrahya Kosh Viniyamawali, 1982 the posts of senior clerk and junior clerk were sanctioned posts in different pay scales. The Amins and their Sahyogies were entitled for certain amount according to percentage of commission as provided under rule 24 although there were certain posts of Kurk Amins in the pay scale also. The Rules of 2002 have been framed for Amins and their Sahyogies which is clear from rule 2 (d). The persons covered by 2002 Rules were fully entitled for appointment on compassionate ground which is clear from rule 36. Rule 36 of the said 2002 Rules is quoted below :-

"36. Regulation of other matters,___ In regard to the matter not specifically covered by these rules or special order, persons appointed to the Cadre of service shall be governed by the rules, regulations and orders applicable generally to Government servant serving in connection with the affairs of the State."

It is the case of the respondents also that the petitioner is not covered by 2002 Rules he being neither Amin nor Sahyogi. It is also relevant to consider the submission of the respondents on the basis of the letter dated 22.12.2004. The letter dated 22.12.2004 mentions that by 2002 Rules only Amins and their Sahyogies are covered and other employees are not covered by the said Rules and are not entitled for appointment on compassionate ground . Rule 36 of 2002 Rules as quoted above clearly provides that the other matters be regulated by the Rules and orders by which the other employees of the State Government are governed. The employees covered by 2002 Rules read with rule 36 shall be governed by the U.P. Recruitment of dependants of Government Servants Dying in Harness Rules, 1974 . The letter of the State Government mentions that those persons who are not covered under 2002 Rules, are not entitled for appointment on compassionate ground For the employees who are not covered by 2002 Rules, it is difficult to read any prohibition from getting compassionate appointment in 2002 Rules. The question to be considered is as to whether the petitioner's father is covered by the U.P. Recruitment of dependants of Government Servants Dying in Harness Rules, 1974. Rules 1974 provides under rule 2 (a) the definition of the Government servant which is as follows :-

"2.Definitions:-........................................

(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; "

Rule 3 of the 1974 Rules which is also relevant , is extracted below :-

"3. Application of the rules- These rules shall apply to recruitment of dependants of the deceased Government servants to public services and posts in connection with the affairs of State of Uttar Pradesh, except services and posts which are within the purview of the Uttar Pradesh Public Service Commission."

Thus for the applicability of 1974 Rules a Government servants is to be employed in connection with the affairs of the State of Uttar Pradesh where permanent in such employment; or though temporary had been regularly appointed in such employment or though not regularly appointed, had put in three years continuous service in regular vacancy in such employment. There is no dispute between the parties that the petitioner's father continued to work from initial appointment till he died in 2000. The appointment of the petitioner's father was made on 12.1.1977 and thereafter he has been continuing in service on the post of collection clerk. Thus from the definition of "Government servant " as provided in rule 2 (a) the petitioner's father was fully covered and is clearly entitled for the benefit of he U.P. Recruitment of dependants of Government Servants Dying in Harness Rules, 1974. Non application of 2002 rules on the petitioner's father has no bearing nor can be read denying the benefit of Rules -1974 to the petitioner.""

It is argued that the said judgment of Kaushlendra Kuwar (Supra) has been followed by this court in the case of Sanjay Kumar Singh vs State of U.P. and others, decided on 03.07.2018 in Writ Petition No.12054 (SS) of 2016.

Considering the fact that that the law has been clarified by this Court in the case of Kaushlendra Kunwar (Supra), there is no reason to hold otherwise and thus, it is directed that the petitioner would be entitled for consideration under the Dying-in-Harness Rules, 1974. Furthermore, in respect of the similarly placed employee, the respondents have given appointment to the heirs of the deceased employee who died in harness as argued by the petitioner, thus the writ petition is allowed and the impugned order dated 24.05.2022 is set aside with directions to pass an appropriate order in respect of the application of the petitioner for appointment under Dying-in-Harness Rules on a post suitable according to the eligibility held by the petitioner as well as the post occupied by the father of the petitioner who died in harness.

It is clarified that the case of the petitioner shall be considered only on a suitable post and subject to the petitioner having requisite qualification. It is further clarified that the claim of the petitioner cannot be rejected solely on the ground that the appointment to the post of Amins is a promotional post and no direct recruitment can be made thereof. The decision shall be taken with all expedition preferably within a period of four months from the date of production of certified copy of this order.

Order Date :- 5.1.2023

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