Nand Kishore vs State Of U.P. Through Prin. Secy. ...
2024 Latest Caselaw 18654 ALL

Allahabad High Court

Nand Kishore vs State Of U.P. Through Prin. Secy. ... on 23 May, 2024

Author: Abdul Moin

Bench: Abdul Moin

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2024:AHC-LKO:39368
 
Court No. - 6
 

 
Case :- WRIT - A No. - 6865 of 2013
 

 
Petitioner :- Nand Kishore
 
Respondent :- State Of U.P. Through Prin. Secy. Revenue Deptt. Lko. And Ors.
 
Counsel for Petitioner :- Anand Mani Tripathi,Anshuman Srivastava,Paritosh Kumar Trivedi,Prateek Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.
 

1. Heard Sri Prateek Mishra and Sri Anshuman Anshuman Srivastav, learned counsels for the petitioner and learned Standing Counsel for the respondents-State.

2. Under challenge is the order dated 26.12.2013, a copy of which is Annexure-7 to the writ petition, whereby the claim of the petitioner for being treated as a permanent confirmed Collection Amin since 22.06.1993 with all consequential benefits has been rejected.

3. During pendency of the writ petition, Sri Nand Kishore has died on 11.06.2014 and his legal heirs have been substituted.

4. Contention of the learned counsel for the petitioner is that Sri Nand Kishore, who was initially working as Seasonal Collection Amin had been appointed on a temporary basis as Collection Amin vide order dated 22.06.1993, a copy of which is Annexure-2 to the petition. He continued to work in the said capacity. He was working on the said post when his services were terminated vide order dated 11.03.1994, a copy of which is Annexure-3 to the petition.

5. Being aggrieved, Sri Nand Kishore filed Writ Petition No.1419 (SS) of 1994 In re: Nand Kishore vs Board of Revenue & Ors. The writ Court vide order dated 19.03.1994, a copy of which is Annexure-4 to the petition, stayed the termination order. Vide order dated 08.10.2012, a copy of which is Annexure-5 to the petition, the writ petition was itself disposed of in terms of the interim order dated 19.03.1994 meaning thereby that the petitioner continued to work as Collection Amin in terms of the appointment order dated 22.06.1993. In the year 2014, the instant petition was filed by Sri Nand Kishore praying for being given all service benefits including additional increment, selection grade, promotional pay scale and other service benefits as well as issuance of a confirmation/regularization order forthwith.

6. The writ court vide order dated 18.11.2013 as an interim measure permitted the petitioner to move a fresh representation and the Collector/District Magistrate was required to decide the said representation by means of the reasoned and speaking order.

7. In pursuance thereof Sri Nand Kishore's claim has been rejected vide order dated 26.12.2013, a copy of which is Annexure-7 to the petition. In the said order, it has been indicated that Sri Nand Kishore had only been appointed against a vacant post on a temporary basis which appointment had been terminated but on account of the order passed by the writ court, he has been continued in service but has not been found fit for being regularized.

8. The said order has been challenged by means of the amendment application. During pendency of the writ petition, Sri Nand Kishore died on 11.06.2014 and has been substituted by his legal heirs.

9. The contention of the learned counsel for the petitioner is that when Sri Nand Kishore had been appointed, though on temporary basis, vide order dated 22.06.1993, and he continued to work and ultimately died in harness on 11.03.2014 as such, his services cannot be treated to be temporary despite working for approximately 21 years.

10. Placing reliance on the averments contained in the rejoinder affidavit more particularly the averments contained in paragraph 8 of the rejoinder affidavit, the argument of the learned counsel for the petitioner is that the service book of Sri Nand Kishore had been prepared. Relevant extract of the service book has been filed as Annexure RA-3 to the rejoinder affidavit.

11. Reliance has been placed on Subsidiary Rule 135 of the Financial Handbook to contend that the said subsidiary rule provides for preparation of the service book of all government servants but with certain exceptions i.e. (i) Inferior Servants of all sorts; (ii) Police servants of rank not higher than head constables; and (iii) Government Servants officiating in posts or holding temporary post, who are recruited for purely temporary or officiating vacancies for short periods and are not eligible for permanent appointment.

12. Placing strong reliance on Subsidiary Rule 135, the contention is that once the respondents have prepared the service book of Sri Nand Kishore consequently, once the said service book can only be prepared for permanent Government servants with the exceptions as provided in Subsidiary Rule 135 as such, it would be deemed that for all practical purposes, the services of Sri Nand Kishore were treated to be on a permanent basis and as such, rejection of the claim of Sri Nand Kishore on the ground that his services were not regularized is patently misconceived.

13. The further contention of the learned counsel for the petitioner is that son of Sri Nand Kishore namely Sri Satish Chandra Gaur, who is petitioner No.1/2 in the instant petition had staked his claim for being appointed on compassionate ground by filing Writ Petition No.7227 (SS) of 2014 in re : Sri Satish Chandra Gaur vs State of U.P. and Ors. The writ Court vide judgment and order dated 23.05.2018 after considering the provisions of U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974 (hereinafter referred to as 'Rules, 1974') was of the view that petitioner No.1/2 is entitled for consideration of his claim on compassionate ground under the Rules, 1974 as the services of his father namely Sri Nand Kishre would fall within the ambit of the services as governed by Rules, 1974. It has further been contended that the petitioner No.1/2 was appointed on compassionate ground on 28.1.2019.

14. Further, reliance has also been placed on the information given by the Sub Divisional Magistrate, Safipur District- Unnao dated 23.09.2019, a copy of which is a part of Annexure RA-2 to the rejoinder affidavit, wherein it has been indicated that in pursuance to the direction issued by the writ court dated 23.05.2018, services of Sri Nand Kishore have been treated to be regular and compassionate appointment has been given to his son namely Satish Chand Gaur, i.e petitioner No.1/2. The same information has also been given vide order dated 04.10.2019, a copy of which is part of Annexure RA-2 to the rejoinder affidavit.

15. Placing reliance on the aforesaid documents as well as Subsidiary Rule 135, the contention is that once from all the aforesaid documents on record as well as relevant rules, the natural presumption is that the services of Sri Nand Kishore were regular in all aspect of the manner as such, the respondents have patently erred in law in rejecting the claim of Sri Nand Kishore vide impugned order dated 26.12.2013 that he was not a regular employee.

16. On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit has argued that the appointment of Sri Nand Kishore on 22.06.1993 was an appointment on a temporary basis as Collection Amin. Sri Nand Kishore was never confirmed or regularized on the said post and as such, even if he died during service, the same would not entail any right of confirmation on the deceased employee so as to entail the payment of dues as have been sought in the instant petition or the reliefs as have been sought in the instant writ petition.

17. So far as the grant of compassionate appointment to the son of Sri Nand Kishore is concerned, it is contended that the writ Court had considered the provisions of the Rules, 1974 while requiring the respondents to consider the claim of the petitioner for compassionate appointment and the same would not entail or it cannot be said that the writ Court has found the services of Sri Nand Kishore to be of a confirmed and regular employee. It is further contended that so far as the service book is concerned, it is specifically indicated in the service book that Sri Nand Kishore is a seasonal and temporary employee.

18. Heard learned counsel appearing on behalf of the contesting parties and perused the records.

19. From the arguments as raised by the learned counsel for the parties and perusal of record, it emerges that Sri Nand Kishore while working as a Seasonal Collection Amin, was appointed on a temporary basis through an order dated 22.06.1993 as Collection Amin. Subsequently, his services were terminated, which termination order was stayed by the writ Court. Later, the writ petition itself was disposed of in terms of the interim order. Sri Nand Kishore continued in service right since 1993 till his untimely death on 11.06.2014. During his lifetime, Sri Nand Kishore had filed the instant writ petition praying for a direction to the respondents to consider and pay all service benefits to him including the additional increment/selection grade/promotional pay scale and other service benefits as well as for issuance of a consequential order for regularization/confirmation forthwith. In terms of the interim order passed by this Court, the representation of Sri Nand Kishore was required to be decided, which representation has been rejected vide order dated 26.12.2013 by contending that Sri Nand Kishore had never been regularized in service although he had been found fit for regularization meaning thereby that Sri Nand Kishore has not been treated to be a regular employee. A challenge has been raised to the said order by means of an amendment application.

20. From a perusal of records, it thus emerges that Sri Nand Kishore has continued in service right since the year 1993 till his untimely death on 11.06.2014 having been appointed as a Collection Amin on a temporary basis. Subsidiary Rule 135 pertains to preparation of a service book. For the sake of convenience, Subsidiary Rule 135 is quoted below:-

"135. With the exceptions noted below, a service book (form no. 13 prescribed by the Auditor General) should be kept for every non-gazetted government servant holding a substantive post on a permanent establishment or officiating in a post or holding a temporary post in which every step in his official life should be recorded, each entry being attested, except as mentioned in the notes below this rule, by the head of his office or by his immediate superior if the government servant is himself the head of an office.

The following are the exceptions referred to:

(i) Inferior servants of all sorts.

(ii) Police servants of rank not higher than head constables.

(iii) Government servants officiating in posts or holding temporary posts, who are recruited for purely temporary or officiating vacancies for short periods and are not eligible for permanent appointment."

21. From a perusal of subsidiary Rule 135, it emerges that a service book is to be prepared for all Government servants with the exception of inferior servants of all sorts; police servants of rank no higher than head constables and Government servants officiating in posts or holding temporary posts.

22. In case the respondents were of the view that the services of Sri Nand Kishore were in the capacity of being a temporary Government servant or a seasonal Government servant, there was no occasion for preparation of a service book. Admittedly, the service book had been prepared and the respondents on their own accord have indicated the services of Sri Nand Kishore to be seasonal and temporary. The Sub Divisional Magistrate has also indicated in his order dated 13.09.2019 that the writ Court while passing the judgment and order dated 13.09.2018 has treated the services of Sri Nand Kishore to be regular. The same information has been reiterated vide order dated 04.10.2019. Incidentally, all these aspects of the matter have not been considered by the respondents while rejecting the claim of Sri Nand Kishore vide order impugned dated 26.12.2013.

23. Keeping in view the aforesaid discussion, the writ petition is partly allowed. The order impugned dated 26.12.2013, a copy of which is annexure 7 to the writ petition is quashed. The respondents are directed to reconsider the grievance of the legal heirs of Late Sri Nand Kishore pertaining to he being treated as a regular employee since the date of his appointment dated 22.06.1993 with consequential benefits, keeping in view the discussion made above.

25. Let a decision in this regard be taken by the competent authority who is said to be the District Magistrate within a period of eight weeks from the date of receipt of a certified copy of this order.

Order Date :- 23.5.2024

prateek/pachhere