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Kauslendra Kuwar v. Registrar Cooperative Socieities U.P. Lucknow & Others - WRIT - A No. 44810 of 2001  RD-AH 6214 (5 April 2007)
Civil Misc. Writ Petition No. 44810 of 2001
Kaushlendra Kuwar .................................... Petitioner
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 :-
(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.
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