Uttarakhand High Court
2 September vs District Magistrate Nainital & Others on 2 September, 2024
Author: Pankaj Purohit
Bench: Pankaj Purohit
2024:UHC:6298
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 3298 of 2017
02 September, 2024
Ghanshyam Singh Bisht
--Petitioner
Versus
District Magistrate Nainital & others
--Respondents
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Presence:-
Mr. Sanjay Bhatt, learned counsel for the petitioner.
Mr. Narayan Dutt, learned Standing Counsel for the State.
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Hon'ble Pankaj Purohit, J.
Heard learned counsel for the parties.
2. Petitioner has moved this Court by filing this writ
petition seeking a writ of certiorari for quashing the order
dated 14.03.2017, annexure-8 to the writ petition, passed by
respondent no.2-SDM Dhari, District Nainital and further a
writ of mandamus commanding the respondents to give
appointment to the petitioner on compassionate ground
under the U.P. Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974 (as applicable in
Uttarakhand) (for short "The Rules, 1974") on a suitable post
as per his educational qualification.
3. It is the case of the petitioner that petitioner's
father was earlier engaged with the respondent no. 1 as
Seasonal Collection Amin since 1994. The father of the
petitioner moved the Hon'ble High Court of Judicature at
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Allahabad by filing the Civil Misc. Writ Petition No.36942 of
1997 for regularization of his service along with other
similarly situated persons. The said writ petition was allowed
by the Hon'ble High Court of Judicature at Allahabad vide
judgment and order dated 30.07.1998. The Hon'ble High
Court vide its order had directed the respondents to consider
the case of the petitioners in that writ petition for
regularization and allowed them to continue as Collection
Amin with the respondent-department. Aggrieved by the said
order passed by learned Single Judge, the Special Appeal was
filed by the erstwhile State of Uttar Pradesh being Special
Appeal No.481 of 1999 which was transferred to this Court
after creation of the State of Uttarakhand and the High Court
Uttarakhand at Nainital. The Special Appeal was
re-numbered as Special Appeal No.119 of 2008. The said
appeal was dismissed by the Division Bench of this Court vide
judgment and order dated 18.12.2009 and the order passed
by learned Single Judge dated 30.07.1998 was affirmed.
4. Pursuant to the dismissal of the Special Appeal
moved by the State Government against the order passed by
learned Single Judge, the petitioners in that writ petition were
regularized by the State Government on the post of Collection
Amin vide order dated 10.09.2010. Name of the father of the
petitioner was also there in the order dated 10.09.2010 at
S.No.5. But before he could reap the fruits of litigation,
petitioner father expired on 10.11.2009 bereaving his family.
After regularization of the petitioners of Civil Misc. Writ
Petition No.36942 of 1997 (Collection Amins), petitioner's
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mother moved an application on 12.05.2011 requesting the
respondents to give compassionate appointment to her son
i.e. the petitioner and subsequently, when the said
application was not given any heed, petitioner himself also
moved an application on 06.08.2016. The said application
remained pending consideration with the respondent-
department, which compelled the petitioner to file the writ
petition being WPSS No.221 of 2017 (Ghanshyam Singh Bisht
vs. District Magistrate, Nainital & others). The said writ
petition was disposed of by a Co-ordinate Bench of this Court
vide judgment and order dated 01.02.2017 directing the
respondent no.1 i.e. District Magistrate to take a decision on
the application for compassionate appointment moved by the
petitioner dated 06.08.2016 within six weeks from the date of
production of certified copy of that order.
5. The claim of the petitioner for compassionate
appointment was rejected vide order dated 14.03.2017 passed
by S.D.M. Dhari, District Nainital. It is feeling aggrieved by
the said order, petitioner is before this Court.
6. It is submitted by learned counsel for the
petitioner that the only ground which is revealed from the
impugned rejection order is that since the father of the
petitioner could not have been regularized, pursuant to the
judgment and order passed by the Hon'ble High Court of
Judicature at Allahabad which was subsequently, affirmed by
the Division Bench of this Court, petitioner was not given the
compassionate appointment for the reason that petitioner's
father was not in regular service, therefore, he cannot be
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extended the benefit of the Rules, 1974. He further contended
that since all the similarly situated petitioners of earlier writ
petition have been regularized pursuant to the order passed
by the Hon'ble High Court of Judicature at Allahabad, which
was subsequently affirmed by the Division Bench of this
Court in Special Appeal, father of petitioner would have also
been regularized but for his unfortunate demise, he could not
have been so regularized.
7. It is further pointed out by learned counsel for the
petitioner that subsequently, after dismissal of the Special
Appeal of the State, all the petitioners of the Civil Misc. Writ
Petition No.36942 of 1997 were regularized vide order dated
10.09.2010 and in that regularization order, the name of the
petitioner's father was at S.No.5. He also submits that in any
case, if the father of the petitioner would not have been
expired in between, the petitioner would have been given
compassionate appointment.
8. Learned counsel for the petitioner also submits
that it is mere chance of circumstances that the father of the
petitioner died earlier, but after the order passed by Hon'ble
High Court of Judicature at Allahabad where the orders for
regularization have been passed.
9. Counter affidavit has been filed by the respondent-
State supporting the rejection of the application of the
petitioner for compassionate ground mainly on the ground
that the father of the petitioner was not in regular service
when he expired and accordingly, the case of the petitioner is
not covered under the Rules, 1974.
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10. Rejoinder affidavit and supplementary affidavit
have also been filed by the petitioner to substantiate his case
for compassionate appointment mainly reiterating the
contents of the writ petition. However, it is also stated in the
supplementary affidavit that the claim of the petitioner would
relate back to the date of decision of the writ petition by the
learned Single Judge.
11. It is submitted by learned State Counsel that the
compassionate appointments are not matter of right and is
not a source of recruitment, rather it is exception to the
general rule of appointment.
12. Having heard the learned counsel for the parties
and having gone through the material available on record,
there is one point clear in the matter that when the Civil
Misc. Writ Petition No.36942 of 1997 of the petitioners was
allowed, the rights have been matured in favour of the
petitioner's father, subject to disposal of the Special Appeal.
The Special Appeal was dismissed by the Division Bench of
this Court vide order dated 18.12.2009 and accordingly, the
rights have been matured in favour of the father of the
petitioner. But for his father's unfortunate demise,
petitioner's father was also entitled for the regularization as
his father's co-petitioners of the Civil Misc. Writ Petition
No.36942 of 1997 were regularized. The Rules, 1974 are
beneficial piece of legislation and, therefore, the Rules should
be construed liberally in favour of the children and family
members of the deceased government servant. Had the father
of the petitioner not died in between, the natural fall out
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would be that he would also be regularized as a regular
Collection Amin with the respondent-department.
12. Apart from this, from perusal of the Rules, 1974
as applicable upto date in the State of Uttarakhand, it is
reflected that in Rule 2(a) "Government Servant" is defined.
Rule 2(a) is reproduced below:-
"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."
13. From Sub-rule 2(a)(iii) of the Rules, 1974, it is
clear that "Government Servant" means a Government
Servant employed in connection with the affairs of State of
Uttar Pradesh (read State of Uttarakhand), though, not
regularly appointed, had put in three years continuous
service in regular vacancy in such employment.
14. If looked into the issue involved in the present writ
petition as per the definition of "Government Servant", the
father of the petitioner is squarely covered in the definition of
"Government Servant" given under Rule 2(a)(iii) of the Rules,
1974, as he has worked as a daily wager with the respondent-
department more than three years continuously against
regular vacancy.
15. In this view of the matter too, there can be no
impediment to the respondent/State to give compassionate
appointment to the petitioner treating his deceased father a
government servant.
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16. Accordingly, this Court is of the opinion that the
writ petition deserves to be allowed. Hence, the writ petition is
allowed. The order dated 14.03.2017, passed by respondent
no.2 is hereby quashed. A mandamus is issued to the
respondent no.1 commanding to give compassionate
appointment to the petitioner under Dying in Harness Rules,
1974 on a suitable post as per his educational qualification.
17. No order as to costs.
18. Pending applications, if any, stand disposed of
accordingly.
(Pankaj Purohit, J.)
02.09.2024
AK
AVNEE Digitally signed by AVNEET KAUR
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=a82175252dc1a0f53f0e245a1c11df9aa490cfd1403838bf52f9acab4cc3
T KAUR
a5b9, postalCode=263001, st=UTTARAKHAND,
serialNumber=5BEC18DADE54688668187E4D722C2EDBFDAF35AB2F676A551
481BE62508FDDEE, cn=AVNEET KAUR
Date: 2024.09.05 18:03:14 +05'30'
