Mahesh Nath vs State Of Uttarakhand Through
2021 Latest Caselaw 3527 UK

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL



                  Writ Petition (S/S) No. 2935 of 2018


Mahesh Nath                                               ....... Petitioner

                                    Vs.

State of Uttarakhand through
Secretary Irrigation and Others                        ......Respondents




Present:
Mr. Devesh Upreti, Advocate for the petitioner.
Ms. Anjali Bhargava, Addl. C.S.C. and Mr. N.P. Shah, Standing Counsel for the
State.



                              JUDGMENT

Ravindra Maithani, J. (Oral)

Aggrieved by denial of appointment under the UP

Dependents of Dying in Harness Rules, 1974 (for short 'the 1974

Rules'), the petitioner is before the Court.

2. It is the case of the petitioner that his father Late Arjun

Nath was appointed as part-time Tubewell Operator in the office of the

respondent no.5 on 19.07.1988. He worked continuously working on

that post. On 31.05.2012, the respondent no.2 regularized the services

of the petitioner. Thereafter by an order dated 26.06.2012, appointment

as a regular Tubewell Operator was given (annexure-2). In serial

number 75 of it, the name of the father of the petitioner is revealed. He

was regularized at the place, where he had been working. The father of

the petitioner died on 08.11.2014. An information was given to the

department and on 20.11.2014, a representation was also submitted for

appointment of the petitioner on compassionate ground. No action was

taken on it, therefore, the petitioner again, on 23.04.2018, made

another representation to the respondent no.5. By the impugned order

dated 03.05.2018, the representation of the petitioner was again

rejected on the ground that though services of father of the petitioner

was regularized on 31.05.2012, but, pursuant to it, he never gave his

joining, as such. It is the case of the petitioner that having regularized

in the department, petitioner thereafter also rendered his services. He

was getting the pay-scale as that of a regular employee. The rejection

of the representation for appointment on compassionate ground is bad

in the eye of law because according to it, condition 3 and 6 of the

regularization order was not complied with by the petitioner. But, it

was not applicable to the case of the petitioner. Because condition 3 of

the order dated 26.06.2012 directs that charge was to be taken over by

the regular employee within a period of one month and condition no. 6

applies to such part-time Tubewell Operator, who at the relevant time,

were working with the Panchayati Raj Department.

3. It is the case of the petitioner that petitioner was

working in the same sub division Haldwani where he was posted after

regularization, therefore, he had no occasion to take fresh charge and

he was not working with the Panhayati Raj department as is clear by

communication dated 12.12.2012 of the respondents themselves,

which is filed alongwith supplementary counter affidavit dated

24.07.2019.

4. The State in its counter affidavit has denied the claim

of the petitioner on the ground that though father of the petitioner was

regularized on 31.05.2012 and orders for posting were also issued on

26.06.2012, but, pursuant to the order of the regularization dated

26.06.2012 as per condition nos. 3 and 6, the father of the petitioner

neither gave joining on the regularized post, within the stipulated

period nor informed the office concerned about his joining and

working on the regularized post.

5. It is also the case of the State that the service record of

the father of the petitioner does not disclose the fulfilment of the

condition nos. 3 and 6 of the order dated 26.06.2012, therefore, his

services cannot be considered to be regularized.

6. Heard learned counsel for the parties and perused the

record.

7. Learned counsel for the petitioner would submit that

the father of the petitioner was appointed in the department on

19.07.1988. He was working as a part-time Tubewell Operator with

the respondents department. On 31.05.2012, his services were

regularized and by order dated 26.06.2012, postings were allotted to

him. He was working at the Tubewell Division, Haldwani before

regularization and after regularization also, he continued working at

Tubewell Division, Haldwani, as was required by the order dated

26.06.2012. It is argued that not only this, after 2012, the father of the

petitioner was transferred at some other division. He was paid salary

equivalent to the regular employee. He had no occasion to take fresh

charge because he was working at the same office where he was posted

after regularization. He also did not have any occasion to get relieved

from Panchayati Raj Department because he was not working in the

Panchayati Raj Department, instead, he was in the Tubewell Division

itself. Therefore, it is argued that it is wrong on the part of the State to

claim that petitioner cannot get appointment on compassionate ground

because his father was not a regular employee. The father of the

petitioner was a regular employee and in view of Rule 5 of the 1974

Rules, the petitioner is entitled to get appointment on compassionate

ground.

8. On the other hand, learned State Counsel would

submit that although on 31.05.2012, the services of the petitioner was

regularized and on 26.06.2012, postings were also issued after

regularization, but, it is argued that the father of the petitioner never

gave formal joining as a regular employee. He did not fulfil criteria 3

and 6 of the communication dated 26.06.2012; in the service record, he

is still part-time Tubewell Operator. It is admitted by learned State

Counsel that the salary of the part-time Operator and regular Tubewell

Operator was one and the same.

9. Appointment is claimed under the 1974 Rules. The

criteria for eligibility is under Rule 5, which is as hereunder;

"5. Recruitment of a member of the family of the deceased.

- (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-

(i) fulfils the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and,

(iii) makes the application for employment within five years from the date of the death of the Government servant: Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death."

10. Reference has also been made to Rule 2 of the 1974

Rules, which defines government servant. It is as hereunder;

2. Definitions.- In these rules, unless the context otherwise requires:

(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 accordance with the procedure laid down for recruitment to the post or service, as the case may be

(b) "deceased" Government servant" means a Government servant who dies while, in service;

(c) "family" shall include the following relations of the deceased Government servant-

(i) Wife or husband;

(ii) Sons;

(iii) Unmarried and widowed daughters;

(d) "Head of Office" means Head of Office in which the deceased Government servant was serving prior to his death."

11. Learned counsel for the petitioner have also referred to

Rule 2 (a) (iii) of the 1974 Rules to argue that the father of the

petitioner had been working for more than twenty years in the

department, prior to his regularization. It also implies that he was in

the employment in a regular vacancy. The father of the petitioner died

on 08.11.2014. According to the petitioner, he made representation for

his appointment on 20.11.2014. It has not been categorically denied by

the State.

12. Be that as it may, it is the case of the petitioner that

when no action was taken on his representation dated 20.11.2014, he

made another representation for appointment on 23.04.2018, which

was rejected by the impugned order dated 03.05.2018.

13. Rule 5 (1) (iii) of the 1974 Rules prescribes a time

limit for making application for employment and it is five years from

the date of the death of the Government servant. In the instant case,

this requirement is fulfilled by the petitioner.

14. Needless to say, appointment on compassionate

ground is basically an exception to the general rule of recruitment.

This exception has been culled out in favour of the dependent of an

employee dying in harness leaving his family members in financial

crisis. Essentially the purpose is humanitarian to provide succour to the

family members of an employee.

15. A small point falls for consideration, it is as to

whether the father of the petitioner was a government servant as

defined under Rule 2 (a) of the 1974 Rules. In paragraph 25 of the

petition, it is stated that if for the sake of argument, it is admitted that

the father of the petitioner was not a regular employee, then, also, the

petitioner cannot be denied appointment on compassionate ground as

his father fulfilled the other conditions of clause (ii) and (iii) of Rule 2

(a) of the 1974 Rules. In their counter affidavit, at paragraph 24, the

State has not denied it. What they have stated is that proper reply has

been given in paragraph 2 of the present counter affidavit. It would be

apt to reproduce paragraph 25 of the writ petition, its reply in the

counter affidavit in paragraph 14 and paragraph 2 of the counter

affidavit of the State. They are hereunder;

"Paragraph 25 of the writ petition

25. That for a moment if the version of the respondent no.5 is admitted to be true that the father of the petitioner was not regular employee, then also the petitioner could not be denied the compassionate appointment as his father also fulfilled the other conditions of sub-clauses (ii) & (iii) of sub-section (a) of Section 2 of the Uttar Pradesh Dependents of Dying in Harness Rules, 1974."

"Paragraph 14 of the counter affidavit filed by the State dated 13.03.2019

14. That in reply to the contents of para no.23, 24 & 25 of the writ petition it is submitted that the proper reply has already been given in paragraph no.2 of the present counter affidavit, which need not be repeated for the sake of brevity."

"Paragraph 2 of the counter affidavit of the State dated 13.05.2019.

2. That in view of the facts and circumstances stated herein the delay has been caused inadvertently in filing the counter affidavit. It is most humbly submitted that the said delay has been occasioned for the reasons that the details/parawise comments are required to be verified at various levels, the narrative so prepared is vetted at various levels and further time is taken by the counsel to approve and draft the affidavit. The aforesaid submissions show the bonafide of the answering respondent, and the delay so occasioned in parent counter affidavit may be taken on record. "

16. Admittedly, the father of the petitioner was working in the

department since 19.07.1998. As per Rule 2 (a) (iii) of the 1974 Rules,

even if a person who is not regularly appointed, if he had put in three

years continuous service in regular vacancy in such employment, he

shall be considered as a government servant. The petitioner claims that

his father may be treated as a government servant in view of Rule 2 (a)

(iii) of the 1974 Rules. It has not been categorically denied by the

State. The State has impliedly admitted that the father of the petitioner

was working regularly for more than three years in regular vacancy,

resultantly, the father of the petitioner shall be considered as a

government servant under Rule 2 (a) (iii) of the 1974 Rules. This is

one aspect of the matter.

17. The other aspect is that admittedly the services of the

father of the petitioner was regularized on 31.05.2012. He was posted

at Tubewell Division, Haldwani by virtue of office memorandum dated

26.06.2012, which is annexure-2 to the writ petition. He was given

posting in the same Tubewell Division, i.e. at Haldwani where he was

working prior to regularization. He continued working in the

department till 2014 when he died.

18. The condition no.3 of this office memorandum dated

26.06.2012 required that the employee who is regularized shall take

charge in the office where he is deputed within a period of one month.

Petitioner was working in the same office. What was to be done by the

father of the petitioner? He was a Tubewell Operator. After

regularization everything was required to be done by the department.

Had the department made any communication to the father of the

petitioner to fulfil any formality? Did he deny? There is no evidence

to it.

19. In the counter affidavit, State in paragraph 3, categorically

took two objections that conditions 3 and 6 of the office memorandum

dated 26.06.2012 were not fulfilled by the father of the petitioner. As

stated, whatever was to be done under condition 3 of the office

memorandum dated 26.06.2012, it was to be done by the office

because petitioner was working in the same tubewell division. Insofar

as condition 6 is concerned, it is related to those Tubewell Operators

who were working, on deputation, in the Panchayati Raj Department.

But, annexure-1 to the supplementary counter affidavit filed by the

State reveals that, in fact, father of the petitioner was not on

deputation, instead, he was working in the tubewell department. So

this objection has no basis.

20. The father of the petitioner was regularized on

31.05.2012. He was given posting on 26.06.2012 and he was working

in the Tubewell Division, Haldwani where he was allotted posting

after regularization. He continued working in the same division till he

died on 18.11.2014. He was getting the same salary, which was

admissible to the regular employee. Nothing was, perhaps, required to

be done on his part. If there was any fault in not making entry in the

service record, it may be attributed to those officers, who were in-

charge to that office. The status of the petitioner has to be considered

as a regular employee when he died for this reason also.

21. Therefore, this Court is of the view that the impugned

order is not in accordance with law and it deserves to be quashed and

the writ petition allowed.

22. The writ petition is allowed.

23. The impugned order dated 03.05.2018 is hereby

quashed. The respondent no.5 is directed to pass a fresh order for

appointment of the petitioner under the 1974 Rules, considering the

father of the petitioner as a regular employee.

(Ravindra Maithani, J.) 08.09.2021 Ujjwal