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Sumitra Devi v. State Of U.P. And Others - WRIT - A No. - 78429 of 2005  RD-AH 16772 (23 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 32
Civil Misc. Writ Petition No. 78429 of 2005
State of U.P. and another
Hon'ble Sudhir Agarwal, J.
Heard Sri S.K. Katiyar, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.
The petitioner's husband was working as part-time tube well operator since 5.12.1986 in Irrigation Department in U.P. He was transferred as Gram Panchayat Vikas Adhikari to local bodies in accordance with the Government Orders issued from time to time and while working thereat he died on 29.7.2001. The petitioner claimed appointment under U.P. Government Servant (Dying in Harness) Rules, 1974 (hereinafter referred to as "1974 Rules") but the same was denied by the respondent no. 2 on the ground that the provisions of 1974 Rules are not applicable to part-time tube well operators. The petitioner, aggrieved by the said order, approached this Court in Writ Petition No. 1436 of 2002 (Sumitra Devi Vs. State of U.P. and another) which was allowed vide judgment dated 6.7.2005 wherein this Court has recorded following finding:-
"It is quite clear that the nature of duty of part time tube well operators was of a regular nature and the petitioner's husband was being paid his salary month to month and his service was continuous without any break. The above circumstance indicates that the post upon which the petitioner's husband was working was regular in nature and the petitioner's husband qualifies the conditions to be brought within the definition of 'Government Servant' as defined in Rule 2(a) of Dying in Harness Rules, 1974. To that extent the G.O. Dated 26.10.1998 would not be applicable in the case of the petitioner."
Despite the aforesaid finding the respondent no. 2 has again passed order dated 19.7.2005 holding that 1974 Rules are not applicable to the case of petitioner since the petitioner's husband was working as part-time tube well operator. Admittedly, the order passed by the respondent no. 2 is in the teeth of the clear finding recorded by this Court vide judgment dated 6.7.2005. It was not open to the respondent no. 2 to record a finding contrary to the finding recorded by this Court unless the same is challenged or set aside in appeal by Higher Forum. The respondent no. 2, therefore, has illegally passed the impugned order, contrary, and, in the teeth of the finding recorded by this Court earlier in Writ Petition No. 1436 of 2002 (Sumitra Devi Vs. State of U.P. and another).
In the circumstances, the writ petition is allowed and the matter is remanded back to the respondent no. 2 to pass appropriate order under 1974 Rules in the light of the finding recorded by this Court in its judgment dated 6.7.2005. The respondent no. 2 shall pass the appropriate order within two months from the date of production of certified copy of this order. The petitioner shall also be entitled to cost which is quantified to Rs. 5000/- with liberty to the respondent-State to recover the same personally from respondent no. 2.
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