Allahabad High Court
Kulwant Kumar vs State Of Up And 4 Others on 29 March, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT - A No. - 5427 of 2023
Petitioner :- Kulwant Kumar
Respondent :- State Of Up And 4 Others
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate
Counsel for Respondent :- C.S.C.,Nagendra Nath Mishra,Suresh Singh
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioner, Shri Nagendra Nath Mishra, learned counsel for Nagar Nigam, Aligarh, Shri Bimlesh Kumar Mishra, learned counsel for respondent no.2 and 3 and learned standing counsel for the State.
The State government has issued advertisement for appointment under Dying in Harness Rules in favour of the petitioner and further has directed Nagar Nigam, Aligarh to give such an appointment. Initially such an appointment was not given in furtherance of the Government Order, hence, petitioner filed Writ-A No.262 of 2022 which was disposed of on 31.01.2022. Relevant paragraph of the said order reads as:
"Having heard learned counsel for the parties, this Court is of the view that the matter requires to be examined in the first instance by the Additional Municipal Commissioner, Nagar Nigam, Aligarh as the query has been made in letter dated 15.10.2021 which has come to be suitably replied by the present petition vide his reply dated 18.12.2021. This argument of learned Senior Advocate also carries weight that once the Government Order was issued to offer appointment to the petitioner by the concerned Nagar Nigam, it was out of his authority to question the validity of the application made by the petitioner for compassionate appointment.
In view of the above, this petition stands disposed of with a direction to the respondent concerned namely the respondent no. 4 to take a final decision in the matter of compassionate appointment to the petitioner pursuant to the Government Order dated 03.09.2021, if there is no legal impediment considering the reply of the petitioner dated 18.12.2021 to the query made by Additional Municipal Commissioner, Nagar Nigam, Aligarh in its letter dated 15.10.2021. Consideration with regard to decision in the matter, as directed herein above, shall be accorded within a maximum period of six weeks from the date of production of certified copy of this order."
Thus, the Court required the Additional Municipal Commissioner, Nagar Nigam, Aligarh to give appointment to the petitioner holding that the Nagar Nigam has no authority to question the validity of the State Government. Now, the petitioner's application is rejected by the impugned order dated 14.02.2023 which is under challenge in the present petition.
The sole ground taken in rejecting the application is that against the petitioner, there is a Criminal Case No.461 of 2017 under Section 60 (1) of the Excise Act and Case Crime No.602 of 2018 under Section 60 of the Excise Act. Admittedly, both the aforesaid cases are with regard to offences trivial in nature. The matter referred is squarely covered by the judgment of the Supreme Court in case of Avtar Singh Vs. Union of India (2016) 8 SCC 471. The same cannot come in way of appointment of the petitioner for government job. The sole reason given in the impugned order is already covered by law settled by the Supreme Court. The next ground further taken is that no objection certificate is not provided by the petitioner from his brother for his appointment under Dying in Harness Rules. Firstly, the said issue is already covered by the order of the State government which has already provided that petitioner is to be given an appointment under Dying in Harness Rules. Even otherwise the said brother of the petitioner admittedly is not known for last around nine years. The said fact is referred to in the will and other documents of the family which are also provided. Even otherwise, once there is no objection filed by any family member of the petitioner for grant of appointment under Dying in Harness Rules to the petitioner, the State authorities cannot refuse appointment only on the said ground. The Dying in Harness Rules themselves provide that the appointing authority shall give appointment to the person who will look after all the dependents of the family. Thus, the said ground also cannot come in way of appointment under Dying in Harness Rules.
Thus, the impugned order dated 14.02.2023 cannot stand and is hereby set aside.
Respondent No.5- Nagar Ayukt, Nagar Nigam, Aligarh is directed to issue the appointment letter to the petitioner under Dying in Harness Rules within a period of two months from the date a certified copy of this order is place before him.
With the aforesaid direction, writ petition is allowed.
.
[Vivek Chaudhary J.]
Order Date :- 29.3.2023
-Amit K-
