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VINAY KUMAR DWIVEDI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Vinay Kumar Dwivedi v. State Of U.P. And Others - WRIT - A No. 419 of 2007 [2007] RD-AH 343 (5 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

       Court No. 38

Civil Misc. Writ Petition No. 419 of 2007

Vinay Kumar Dwivedi

Versus

State of U.P and others

Hon'ble V.K. Shukla,J.

Petitioner's father had been performing and discharging duties as Meth in work charge establishment. Father of the petitioner died while he was in service leaving behind Smt. Manorama Devi,(Widow) Son(Petitioner) and two daughters. Petitioner applied for grant of compassionate appointment under the Dying in Harness Rules 1974. Petitioner was required to make various informations on 10.08.2001. Mother of petitioner also filed an affidavit to the effect that she has no objection in giving appointment to the petitioner. Thereafter report was submitted and appointment letter was issued on 10.04.2002. On 14.08.2002 petitioner was transferred to different office and thereafter said appointment has been cancelled on 06.12.2006. At this juncture present writ petition has been filed.

Learned counsel for the petitioner Sri Ajay Kumar Singh, contended with vehemence that in the present case appointment of the petitioner was clearly inconsonance with the provisions as contained under U.P. Dying in Harness Rules 1974 and as such by no stretch of imagination compassionate appointment accorded to the petitioner could have been cancelled and that too without providing opportunity as such the impugned order clearly vitiated in law and same is liable to be set aside.

Learned Standing Counsel, P.K.Pandey on the other hand contended that from the own showing of the petitioner, petitioner's appointment is clearly dehors the provisions as contained under U.P.Dying in Harness Rules 1974, inasmuch as, at the point of time when petitioner's father died, petitioner's mother was also serving as Health Inspector in the Health Department of the Government of U.P. and as such by no stretch of imagination claim of the petitioner could have been adverted to and as illegality which has been committed has been removed and rectified, as such no interference is warranted.

After respective arguments have been advanced, relevant Rule 5 of U.P. Dying in Harness Rules 1974 is being looked into.

Rule 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  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) fulfills the educational qualification prescribed for the post,

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

(iii) makes the application for employment with five years from the date of 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."

A bare perusal of the Rule 5 which has been quoted above would go to show that when 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  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, is 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 normal recruitment rules. Rule in question is clear and categorical that employment is to be offered in the contingency when Government servant dies in harness and spouse of the deceased employee 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. In case spouse of the deceased employee is employed  under the Central Government Or a State Government or a Corporation owned or controlled by the Central Government or a State Government then incumbent concerned is not at all entitled for compassionate appointment, inasmuch as purpose of providing compassionate appointment is that on account death of bread earner in the family, there is no immediate crisis in the family. This particular provision has been provided for with specific object, inasmuch as in case spouse of the deceased employee is already in employment under the Central Government Or a State Government or a Corporation owned or controlled by the Central Government or a State Government then he/she as the case may be, can very well support the family and family cannot be treated as being in crisis. On fulfillment of first condition the requirement of second condition is that in case spouse of the deceased employee is not already under under the Central Government Or a State Government or a Corporation owned or controlled by the Central Government or a State Government the one member of family who is already not employee under the Central Government Or a State Government or a Corporation owned or controlled by the Central Government or a State Government is entitle to make application for grant of compassionate appointment, and only when these two pre requisite conditions would be fulfilled then in that event claim would be adverted to, failing which claim would fail.

Now on the touch stone of the aforesaid provision quoted above the case in hand is being looked into. Undisputed position which has emerged is to the effect that father of the petitioner died in harness on 03.05.2001 and petitioner applied for grant of compassionate appointment and it is also equally true that petitioner furnished information that his mother is also in Government service. Authority concerned ignoring the mandatory provisions as contained in U.P. Dying in Harness Rules 1974, Rule 5, of the aforesaid Rules proceeded to accord appointment to the petitioner. Once this fact come to the knowledge of the authorities concerned that appointment which has been provided to the petitioner is clearly dehors the rules then authority acted well within its rights in canceling the illegal compassionate appointment which was offered to the petitioner. In the present case opportunity in no way would improve the case of the petitioner. On the admitted fact providing of opportunity to the petitioner would be nothing but sheer formality as net result would be one and the same, that petitioner is not at all entitled for compassionate appointment, as on the date of the death of father of the petitioner, his mother was alive and had been performing and discharging duties as Government servant in the health department.

Consequently there is no infirmity in the impugned order in question. Writ petition lacks substance and the same is dismissed.  

5th January, 2007

Dhruv

 

 


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