Smt. Nazmin Begum vs The State Of U.P. Through Secy.
2023 Latest Caselaw 14157 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- WRIT - A No. - 282 of 1999
 

 
Petitioner :- Smt. Nazmin Begum
 
Respondent :- The State Of U.P. Through Secy.
 
Counsel for Petitioner :- Y.K.Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

Order on Civil Misc. (Delay Condonation) Application No. 9 of 2022

In Civil Misc. (Recall-Restoration) Application No. 10 of 2022

1. Learned counsel for the applicant has pressed the application for recall seeking recall of Court's order dated 29.08.2019, whereby delay condonation application no.70889 of 2019, filed in support of recall application no. 70890 of 2019 has been rejected on the ground that reason for delay in filing the recall application has not been sufficiently explained. The present recall application has been filed with some delay, and is accompanied with delay condonation application.

2. Perused the applications.

3. Reasons shown in the affidavit filed in support of delay condonation application have been deemed to be sufficient. Delay condonation application is allowed. Delay in filing recall-restoration application is condoned.

4. Recall application is also allowed. Order dated 29.08.2019, is hereby recalled. The delay condonation application no.70889 of 2019, as well as recall application no. 70890 of 2019, are restored to their original number.

Order on Civil Misc. (Delay Condonation) Application No. 70889 of 2019

In Civil Misc. (Recall-Restoration) Application No. 70890 of 2019

1. Learned counsel for the applicant has pressed the application for recall seeking recall of Court's order dated 20.07.2016, whereby the writ petition has been dismissed for want of prosecution. Application for recall has been filed with some delay, consequently, same is accompanied with an application for condonation of delay.

2. It is submitted by learned counsel for the applicant that on 20.07.2016, when the case was listed before the Court, but learned counsel for the petitioner could not appear before the Court as the case was not marked by the Advocate's Clerk and this fact could not be brought to the knowledge of the learned counsel by his clerk due to which recall application has been filed with delay. The delay caused in filing recall application is due to the reason as mentioned in the application and same is not deliberate or intentional.

3. Perused the applications.

4. Delay condonation application is allowed. Delay in filing recall application is hereby condoned.

5. Recall application is also allowed. Order dated 20.07.2016, is hereby recalled. Writ petition is restored to its original number.

Order on Civil Misc. (Amendment) Application No. 18107 of 1999

1. Learned counsel for the applicant has pressed the application for amendment seeking certain amendments in the memo of writ petition. He submits that it is necessary to incorporate the said amendments for proper adjudication of the case.

2. Perused the application.

3. Application is allowed. Learned counsel for the applicant is directed to carry out necessary amendments in the memo of writ petition during course of the day.

Order on Writ Petition

1. Heard Sri Y.K. Mishra, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.

2. By means of present writ petition the petitioner has challenged the order of rejection of application of petitioner seeking appointment under Dying-in-Harness Rules, 1974 by the Executive Engineer, Tubewell Division I, Sitapur - respondent no. 3, stating that husband of petitioner was working as part time tubewell operator and as such persons working on part time basis after their death, appointment of their legal heirs under Dying-in-Harness Rules, 1974, is not provided in the Rules and rejected the application of petitioner.

3. It is submitted by learned counsel for the petitioner that husband of petitioner late Phullan Khan was appointed on 02.12.1985 on the post of Tubewell Operator on part time basis in Tubewell no. 53, situated in Village - Jalalpagar, Sitapur. Late husband of petitioner worked continuously on the said post till 13.06.1998, when he died in harness. At the time of appointment of her husband, he was getting Rs.299/- per month which was subsequently enhanced to Rs.550/- per month.

4. It is next submitted by learned counsel for the petitioner that various writ petitions were filed before this Court seeking direction that tubewell operators should be given regular salary at par with regularly appointed tubewell operators and consequently, matter reached up to Hon'ble Supreme Court and before the Supreme Court the case was decided in favour of petitioners therein and regular salary was paid to them since 29.01.1996.

5. With regard to grounds on which the application of petitioner has been rejected that part time tubewell operators cannot be granted appointment under the Dying-in-Harness Rules, 1974, this aspect of the matter was considered by the Division Bench of this Court in Special Appeal (D) No. 234 of 2018, wherein the Court while setting aside the judgmnet of learned Single Judge had considered all service conditions as well as service conditions of part time tubewell operators and held that the case of part time tubewell operators falls within the definition of "Government Servant" as provided in Rule 2(9) of Rules, 1974 and it also took into account the fact that Hon'ble Apex Court in the case of State of U.P. Vs. Uttam Singh, also directed that part time tubewell operators shall also be granted same pay scale as is being given to the regularly appointed tubewell operators and the Court was of the opinion that petitioners therein were also entitled for benefit of the Rules, 1974 and hence set aside the judgment of learned Single Judge who denied the said benefit to the petitioners therein.

6. The State of U.P. being aggrieved by the order of Division Bench, preferred Civil Appeal No. 4575 of 2021 before the Apex Court, which was dismissed by means of judgment dated 03.08.2021. The Apex Court was also of the view that part time tubewell operators would be treated as "Government Servant" within the definition of Rule 2(a)III of the Rules, 1974 and also considered the fact that petitioners therein were regularly working on the said post and were entitled to the benefit of Rules, 1974.

7. In the present case, it is noticed that husband of petitioner was appointed as part time tubewell operator by means of order dated 02.12.1985. Perusal of said order would indicate that for filling up temporary posts of part time tubewell operators, a selection committee was constituted which held an interview and examined all the eligibility conditions of the candidates and it is only after said exercise that the petitioner was found suitable and was appointed on the post of part time tubewell operator by means of appointment letter dated 02.12.1985.

8. It is further noticed that late husband of petitioner continued regularly on the said post till his death on 13.06.1998 and in the meanwhile on the interference of Apex Court he was given regular pay-scale from 1994 onwards.

9. In the aforesaid circumstances, it cannot be said that petitioner would not be entitled for the benefit of Dying-in-Harness Rules, 1974. It is noticed that husband of petitioner died in the year 1998 and petitioner is canvassing her case seeking remedy under the Rules, 1974 since 1998 onwards and present writ petition is pending since 1999 i.e. last two and half decades, though writ petition was dismissed for want of prosecution on two occasions, but merely because the matter is pending for the last two decades and merely on the ground of long passage of time, the petitioner cannot be denied the benefit of the statute. It is also noteworthy that in case claim is made after considerable delay then the writ petition would be liable to be dismissed on ground of delay and latches, but in the present case, there is no laxity on the part of the petitioner as he approached this Court within one year of the death of her husband.

10. In the light of above, this Court is of the view that petitioner's claim shall be duly considered under the Dying-in-Harness Rules, 1974 and her application shall not be rejected merely on account of the fact that her husband was working on the post of part time tubewell operator.

11. The writ petition is allowed.

12. Matter is remitted to the Executive Engineer, Tubewell Division-I, Sitapur - respondent no. 3 for fresh consideration of the case of the petitioner. Respondent no. 3 is directed to consider application of petitioner for appointment under the Dying-in-Harness Rules, 1974 afresh, expeditiously, not later than two months from the date of production of certified copy of this order before him, in accordance with law by means of reasoned and speaking order and communicate the decision to the petitioner.

Order Date :- 5.5.2023

A. Verma

(Alok Mathur, J.)