Khurshid Ahmad S/O Late Quyyoom ... vs State Of U.P. Through Prin. Secy. ...
2023 Latest Caselaw 9242 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 
Case :- WRIT - A No. - 7838 of 2011
 
Petitioner :- Khurshid Ahmad S/O Late Quyyoom Khan
 
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Irrigation Lko.
 
Counsel for Petitioner :- Rakesh Chandra Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Karunesh Singh Pawar,J.

Heard Shri Rakesh Chandra Tiwari, learned counsel for the petitioner as well as learned Additional C.S.C. for the State and perused the record.

By this petition, the petitioner has prayed for issuance of following reliefs:-

(A) To issue a Whit Order or Direction in e nature of Cerborari quashing the impugned order dated 14.09.2011 (as contained in ANNEXURE 1 to this writ writ petition)

(B) To issue a Writ, Order or Direction in the nature of Mandamus commanding the opposite parties to forthwith consider the case of petitioner for appointment on any suitable post according to his qualification under Dying-in-Harness Rules, 1974 which are lying vacant with the opposite parties.

(C)Any other Order which is deemed just and appropriate in the nature and circumstances of the case be also passed in favour of the petitioner in the interest of justice along with cost of this writ petition.

Brief facts of the case are that father of the petitioner was appointed on the post of part time tubwell operator vide order dated 31.01.1994. After serving more than 13 years in the department, he died in harness on 19.04.2007 leaving behind the following heirs:-

(i) Smt. Rabiya Begum (wife)

(ii) Khurshid Ahmad (son)

(iii) Adil Khan (Son)

(iv) Akil (Son)

(v) Amil (Son)

(vi) Km. Safia (daughter)

(vii) Km. Salima (daughter)

On 27.07.2009, the petitioner after attaining the majority has submitted an application for appointment on compassionate grounds under Dying-in-Harness Rules, 1974 (herein after referred as "1974 Rules"). When nothing was done on his representation, he was constrained to file a writ petition No. 595 (S/S) of 2009 "Khursheed Ahmad Vs. State of U.P. and others" which was disposed of with a direction to opposite parties to consider and decide the representation of the petitioner vide judgment and order dated 17.09.2009.

The order dated 17.09.2009 was served to the opposite parties along with an application by the petitioner whereby vide impugned order contained in Annexure No. 1 dated 14.09.2011, the claim of the petitioner has been rejected.

Learned counsel for the petitioner submits that father of the petitioner was working continuously since the date of his appointment i.e. 31.01.1994 till 19.04.2007 (date on which he died). He also submits that he was given a regular pay scale at par with the regular employees of the department as admitted by the State Government in their para 10 of the counter affidavit. He has also submitted that the deceased father of the petitioner falls within the definition of Government Servant as provided under Rule 2(III) of 1974 Rules.

In support of his contention, he has relied on the judgment of the Apex Court in the case of "State of U.P. Vs. Uttam Singh", reported in "2021(39) LCD 1878". Emphasis is on para 7 and 8 of the judgment.

Per contra, learned Standing Counsel submits that father of the petitioner was not a regular employee, hence, he will not come under the definition of Government Servant. It is submitted by the learned Standing Counsel that parity claimed by the petitioner from the case of Vijay Kumar Yadav is not available as the deceased father of Vijay Kumar Yadav was appointed before the cut of date i.e. 01.10.1986 in the department and therefore, he was entitled for regularization and hence, considering this aspect Vijay Kumar Yadav was given compasionate appointment.

A perusal of the impugned order contained in Annexure No. 1 shows that the impugned order has been passed and the representation of the petitioner has been rejected on the ground that the deceased father of the petitioner at the time of his death was still part time tubewell operator and under the 1974 Rules, the provision for providing compassionate appointment is only to the dependents of the employees who have worked in the Niyamit Adhishthan (Regular Establishment) and on this ground the claim of the petitioner for being appointed on compassionate appointment has been rejected as the same is not covered under 1974 Rules. Rule 2 of the 1974 Rules defines the Government Servant. Rule 2(a) of 1974 Rules is extracted as under:-

"(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;"

Perusal of the aforesaid definition of the government servant shows that a government servant employed in connection with the affiars of Uttar Pradesh though not regularly appointed but had put in three years continuous service in regular vacancy in such employment shall be covered under definition of government servant. It is not disputed that father of the petitioner was appointed on 31.01.1994. It has also not disputed that he has worked continuously since the date of his appointment till the date of his death as part time tubewell operator. It is also admitted as per the the pleadings made in para 10 of the counter affidavit that father of the petitioner was paid similar pay scale which was being paid to the other regularly appointed tubewell operators, thus, clearly the services of the deceased father of the petitioner falls within the definition to 2(a)(iii) of 1974 Rules and was a government servant within the meaning of 1974 Rules.

Thus clearly the respondent while passing the impugned order has misread the aforesaid 1974 Rules contrary to the definition of the government servant under Rule 2(a)(iii) 1974 Rules and also has overlooked the fact that father of the petitioner worked continuously since 1994 till 2007 and was paid regular pay scale at par with the regular employees as admitted in the counter affidavit, therefore, the order impugned is apparently erroneous and has been passed in utter violation of the 1974 Rules. The Supreme Court in the case of "State of U.P. v. Uttam Singh, 2021 SCC OnLine SC 550" while dealing with the claim and entitlement of an applicant whose father was also a part time tubewell operator has held:-

9. If we turn to the impugned order of the Division Bench, the High Court has taken note of the Full Bench of the Allahabad High Court which is in consonance with the view propounded by this Court in the case of Gen. Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205 (supra)1. However, it noted the contention that though the father of the respondent was termed as a Part Time tubewell operator but he was always treated as a regular employee. The Court took note of the rule referred to aforesaid and the explanation given thereto which requires that an appointment with procedure laid down for recruitment to the post or the service. The order of appointment in the case of the father of the respondent has been found to be unambiguous in its terms in accordance with norms after verification of all his certificates. A complete process of selection was conducted by the appellants as the employer. At the first instance, appointment was denied to him on account of he not being a resident of the command area of the tubewell concerned but this ground was found unsustainable by the judicial view taken by the High Court by an earlier order dated 29.01.2003 and consequently the father of the respondent was appointed. It is in these given facts of the case that it has been found that the benefit should be made available to the respondent under the Rules. The facts have been found sufficient by the High Court to come to the conclusion that the appointment of the father of the respondent was against a regular vacancy and that is why in that background from the inception regular pay-scale was allowed to him and he thus satisfied the parameters of the Rules aforesaid.

10. We are in complete agreement with the view taken by the High Court in the given factual scenario. We may say, it appears that the appellants, for reasons best known to them, endeavoured to deny the father of the respondent his dues even though the appointment was through a proper process. The High Court opined against the manner in which the father of the respondent was denied employment. That is the reason that from the very inception he was given the benefits of a regular employee while designating him as a Part Time tubewell operator. The High Court has found that these facts show that the appointment was against the regular vacancy though it continued to be termed as a ?Part Time? appointment apart from the fact that his work hours were of a regular employee entitling him to equal pay for equal work.

11. We have also taken note of the fact that during his 13 long years of employment and before that having battled the appellants for the period of 6 years to get his dues, the father of the respondent was also transferred from one department to the other, normally an aspect which would be associated with a person who had a regular employment. The most significant aspect is that had the father of the respondent not been considered a regular appointee, there would be no occasion for the Department to volunteer his services to the State Election Commission to perform election duties, which could have been done only by a Government employee, as is specified under Section 159 of the Representation of the People Act, 1950 (?Staff of certain authorities to be made available for election work?).

In view of the settled law by the Hon'ble Supreme Court and also in view of the admitted case of the State that father of the petitioner was a part time tubewell operator and worked continuously since 1994 to 2007 and was given regular pay scale at par with the regular employees as admitted in para 10 of the counter affidavit, so also considering the judgment of the Hon'ble Supreme Court in case of Uttam Singh (supra), I have no hesitation in holding that he was a government servant as defined under Rule 2(a) of 1974 Rules, however, the claim of the petitioner has wrongly been rejected misreading the 1974 Rules. Accordingly, the impugned order dated 14.09.2011 contained in Annexure No. 1 is set aside and the matter is remanded to the authorities concerned to decide afresh the representation in view of the Rules 1974 and also the judgment of the Hon'ble Supreme Court in the case of Uttam Singh (supra) within a period of three months from the date of production of certified copy of this order.

In view of the aforesaid observation, the petition is allowed.

Order Date :- 29.3.2023

R.C.