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KAUSLENDRA KUWAR versus REGISTRAR COOPERATIVE SOCIEITIES U.P. LUCKNOW & OTHERS

High Court of Judicature at Allahabad

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Kauslendra Kuwar v. Registrar Cooperative Socieities U.P. Lucknow & Others - WRIT - A No. 44810 of 2001 [2007] RD-AH 6214 (5 April 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.10

Civil Misc. Writ Petition   No.   44810 of  2001

Kaushlendra Kuwar   ....................................    Petitioner

Versus

Registrar, Cooperative Societies, U.P. ............          Respondents

Lucknow & others

....................................

Hon'ble Ashok Bhushan, J.

Heard Smt. Anita Tripathi, learned counsel for the petitioner and the Learned standing counsel. Counter and rejoinder affidavits have been exchanged.   With the consent of parties this writ petition  is being finally disposed of.

By this writ petition  the petitioner has prayed for mandamus commanding the respondents to give employment to the petitioner on compassionate ground in accordance with his qualification.

 Brief  facts of the case for deciding the writ petition  are;

 Petitioner's father late Girish Chandra Upadhyaya  was appointed as clerk in the Collection Wing  of District Assistant Registrar, Cooperative Societies U.P. District Basti. The appointment order was issued by the Deputy Registrar,  Cooperative Societies, Gorakhpur posting the petitioner's father on the post of clerk in the Collection Department  in the pay scale of Rs.200/- 320/-.  The petitioner's father while working on the said post died in harness on 3rd of June, 2000, leaving behind his wife, unmarried daughters and the petitioner.  The date of birth of the  petitioner is 15.10.1975.  The petitioner made an application for  compassionate appointment to the District Assistant Registrar, Cooperative Societies, Basti  who sent the said application to the Deputy  Registrar, Cooperative Societies  U.P.  for  permission to make appointment of the petitioner.  The Deputy Registrar, Cooperative Societies  by letter dated 29th June, 2000 sent the application to the Additional Registrar, Cooperative Societies U. P.  Lucknow.    A letter dated 14.11.2000 was issued by the District Assistant Registrar Cooperative Societies, Basti   informing that  since there is no provision for appointment  on  compassionate ground under Sangrahya  Kosh Viniyamawali, 1982 , the petitioner is not entitled for appointment on   compassionate ground.  The said letter also noticed that against the judgement of the High Court with regard to  Sangrahya  Kosh Viniyamawali, 1982  matter is pending before the apex Court. The petitioner submitted representation reiterating his claim for appointment and thereafter filed this writ petition.  A counter affidavit has been filed by the State in which in paragraph 5  it has been stated  that in view of the  judgement of the Lucknow Bench of this Court passed  in  the case of State of Uttar Pradesh  vs. Chandra Prakash Pandey and the judgement of the apex Court  the rules have been framed namely, Uttar Pradesh  Cooperative Collection Fund and the Amins and Other Staff   Service Rules, 2002 in which there is no provision for making compassionate  appointment  hence the appointment can  be given only after receipt of instructions from the State Government.  A supplementary counter affidavit has also been filed in which  a copy of the  Government order  dated 22.12.2004 has been annexed informing that according to 2002 Rules Chapter III Part  I it is clear that  under the said Rules only Amins and Collection Amins and their Assistants are  included hence  other employees  working in the Collection  Wing are not entitled for compassionate  appointment under the said Rules.

Learned counsel for the petitioner in support of the writ petition raised following submissions.   It has been submitted that the petitioner's father being working as a clerk in the office of the District Assistant Registrar, Cooperative Society, was fully entitled for compassionate  appointment.   It is contended that the petitioner's father was appointed in the pay scale as official of the State Government and was a Government servant.  It is submitted that the dispute pertaining to Collection Amins and their assistants  working in the Collection wing went up to the apex Court  and consequent to which Rules have been framed.  It is contended that even in accordance with the Uttar Pradesh  Cooperative Collection Fund and the Amins and Other Staff   Service Rules, 2002   the collection Amins and their  Sahyogies (Assistants) are entitled  for compassionate  appointment , the same benefit cannot be  denied to the petitioner who is better placed having been appointed in pay scale.   It is submitted that the decision of the respondents in not considering the claim of the petitioner for appointment under the U.P. Recruitment of dependants  of Government Servants Dying in Harness Rules, 1974 is wholly erroneous.

Learned standing counsel  supporting the action of the respondents contended that  only Amins  and their Sahyogies  are entitled for compassionate  appointment  according to  2002 Rules read with letter of the State Government  dated 22.12.2004. The petitioner not being  covered by the said 2002 Rules is not entitled for compassionate  appointment.

I have considered the submissions of counsel for the parties and perused the record.

In the counter affidavit the State  has taken stand in paragraph 5 that the Rules have been framed namely Uttar Pradesh  Cooperative Collection Fund and the Amins and Other Staff   Service Rules, 2002 which does not contain any provision for giving employment on  compassionate ground to the deceased employee. The  appointment on  compassionate ground can be given only after receipt of the direction from the State Government.  The said plea has again been taken in paragraph 6.    In supplementary counter affidavit they have come up with the letter of the State Government dated 22.12.2004 which mentions that only Amins and Sahyogies  are covered  under  2002 Rules and other employees of the Collection Wing are not entitled  for compassionate  appointment.

A copy of the appointment order  of the petitioner has been filed along with the rejoinder affidavit as Annexure-1.  The said appointment has been issued by the Deputy Registrar, Cooperative Societies in the pay scale of Rs.200-320/- along with dearness allowance.  The said appointment is clearly on a pay scale although in the collection department.    The appointment of  Amins and their Sahyogies  in the Collection Department  were on commission   basis. According to the earlier U.P. Sangrahya  Kosh Viniyamawali, 1982  the posts of senior clerk and junior clerk  were sanctioned posts in different pay scales. The Amins and their Sahyogies  were entitled  for certain amount according to percentage of commission as provided under rule 24 although there were certain posts of  Kurk Amins in the pay scale  also.  The Rules of 2002 have been framed for Amins and their Sahyogies  which  is clear from rule 2 (d).   The persons covered by 2002 Rules  were fully entitled for appointment on  compassionate ground which is clear from rule 36. Rule 36 of the said 2002 Rules is quoted below :-

"36. Regulation of other matters,___   In regard to the matter not specifically covered by these rules or special order, persons appointed to the Cadre of service shall be governed by the rules, regulations  and orders applicable generally to Government servant serving in connection with the affairs of the State."

It is the case of the respondents also that the petitioner is not covered by 2002 Rules he being neither Amin nor Sahyogi.  It is also relevant to consider the submission of the respondents on the basis of the letter dated 22.12.2004.  The letter dated 22.12.2004 mentions that  by 2002 Rules only Amins and their Sahyogies  are covered and other employees are not covered by the said Rules and are not entitled for appointment on  compassionate ground .  Rule 36 of 2002 Rules  as quoted above clearly provides that the other matters  be regulated  by the Rules and orders by which the other employees of the State Government  are governed.  The employees covered  by 2002 Rules   read with rule 36 shall be governed  by the U.P. Recruitment of dependants  of Government Servants Dying in Harness Rules, 1974 .  The letter of the State Government mentions that  those persons  who are not covered under 2002 Rules, are not entitled for appointment on  compassionate ground   For the employees who are not covered by 2002 Rules, it is difficult to read any prohibition  from getting compassionate appointment in 2002 Rules. The question to be considered is as to whether  the petitioner's father  is covered by the U.P. Recruitment of dependants  of Government Servants Dying in Harness Rules, 1974.  Rules 1974 provides under rule 2 (a)  the definition of the  Government servant which is as follows :-

"2.Definitions:-........................................

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

Rule 3 of the 1974 Rules which is also relevant , is extracted below :-

"3. Application of the rules-  These rules shall apply to recruitment of dependants of the deceased Government servants to public services and posts in connection with the affairs of State of Uttar Pradesh, except services and posts which are within the purview of the Uttar Pradesh Public Service Commission."

Thus for the applicability of 1974 Rules a Government servants is to be employed  in connection with  the affairs of the State of Uttar Pradesh  where permanent in such employment; or though temporary had been regularly appointed in such employment or though not regularly appointed, had put in three  years continuous service in regular vacancy in such employment.  There is no dispute  between the parties that the petitioner's father  continued to work from initial appointment  till he died in 2000.  The appointment of the petitioner's father was  made on 12.1.1977 and thereafter he has been continuing in service on the post of collection clerk.  Thus from the definition of   "Government servant " as provided in rule 2 (a) the petitioner's father  was fully covered  and is clearly entitled for the benefit of he U.P. Recruitment of dependants  of Government Servants Dying in Harness Rules, 1974.  Non application of 2002 rules on the petitioner's father  has no bearing nor can be read  denying the  benefit of Rules -1974 to the petitioner.    

In view of the forgoing discussions the order of the  District Assistant Registrar  dated 14.11.2000  Annexure 3 tot he writ petition  cannot be sustained. The petitioner has made out a case for direction to the respondents  to consider the petitioner's Claim  for appointment on  compassionate ground in accordance with the U.P. Recruitment of dependants  of Government Servants Dying in Harness Rules, 1974 .  The respondent no. 1, the Registrar, Cooperative Societies, U.P. Lucknow  is directed to consider the case of the petitioner  for appointment on  compassionate ground  expeditiously  preferably within a period of three months from the date of production of a certified copy of this order .

With the aforesaid direction the writ petition  is disposed of.

D/-5.4.2007

SCS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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