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Deen Bandhu Verma v. State Of U.P. And Others - WRIT - A No. 7417 of 2006  RD-AH 897 (15 January 2007)
Court No. 38
Civil Misc. Writ Petition No. 7417 of 2006
Deen Bandhu Verma
State of U.P. and others
Hon'ble V.K. Shukla,J.
Petitioner has approached this Court for issuing a writ in the nature of mandamus commanding the respondent nos. 2 and 3 to consider the claim of the petitioner for appointment under Dying in Harness Rules 1974.
Brief facts giving rise to instant writ petition is that petitioner's father had been performing and discharging duties as Seasonal Collection Peon since 15.01.1970 and as per petitioner he worked till 09.08.2005, when he died in harness. Petitioner applied on 22.12.2005 for grant of compassionate appointment. Claim of petitioner had been rejected on the ground that his father was not substantively appointed employee nor had he functioned for three years continuously in regular vacancy.
Counter affidavit has been filed and therein it has been contended that father of the petitioner was seasonal collection peon and was not a regular employee and he has functioned with effect from 15.01.1970 to 30.09.1981, and thereafter he was appointed on 14.03.1982 and worked till 09.08.2005. It has been contended that petitioners father was neither permanent employee nor he has been regularized and he functioned as Seasonal Collection Peon, as such under U.P. Dying in Harness Rules 1974 petitioner is not at all entitled for compassionate appointment.
Rejoinder affidavit has been filed and therein reliance has been placed on the various judgments of this Court to show that petitioner's father had regularly worked on the post of Seasonal Collection Peon as such entire benefits are liable to be extended to the petitioner.
After pleadings mentioned above have been exchanged, present writ petition has been taken up with the consent of the parties for final hearing and disposal.
Sri J.P.N. Singh, counsel for the petitioner contended with vehemence that plea which has been taken in the counter affidavit that claim of the petitioner is not at all liable to be considered is unsustainable, inasmuch as per Rule 2(a) (iii) of U.P. Dying in Harness Rules 1974, a government servant who has not been regularly appointed and had put in three years continuous service in regular vacancy is entitled to be offered appointment, and here each and every pre-requisite terms and conditions are duly fulfilled as such compassionate appointment cannot be denied on the ground that petitioner's father was not substantively appointed and not regularized as such writ petition deserves to be allowed.
Learned Standing counsel, Sri P.K. Pandey, on the other hand contended that father of the petitioner was seasonal employee and was not a regular employee as such stand which has been taken in the counter affidavit is correct stand.
After respective arguments have been advanced factual position which is emerging is to the effect that from the own showing of the respondents, petitioner's father had functioned without any break with effect from 15.01.1970 and worked up to 30.09.1981, and thereafter he was appointed on 14.03.1982 and worked till 09.08.2005. It has been mentioned that petitioner's father was mere seasonal collection peon. Once petitioner's father had functioned round the year without there being any break for such long years then same cannot be described and termed as seasonal collection peon, as seasonal collection peon connotes in itself appointment as per requirement of the season. Here once appointment has been permitted to continue round the year from year 1970 to year 2005, expect for short break of few months which clearly is artificial break then mere description as seasonal collection peon will not denude such appointment the status of Collection Peon. It would be also relevant to note that in exercise of power vested under the proviso of Article 309 of the Constitution of India the Governor has framed statutory rules for extending the benefit of regularization to the seasonal collection peon knows as U.P. Collection Peon Service Rules 2004 and as per said Rules 5, 50% of substantive vacancies of Collection Peon is to be filled up from amongst seasonal collection peon.
In the present case the long length continuous service which had been put in by the father of the petitioner, petitioner's case clearly falls within the scope and ambit of though not regularly appointed, but had put in three years continuous service in regular vacancy in such employment.
Division Bench of this Court in the case of State of U.P. and others Vs. Smt. Malti Devi reported in [2006 (1) ESC 316 (ALL)(DB)] in almost identical circumstances has taken following view:
"3. The undisputed facts are that the petitioner's husband late Radhey Shyam was appointed as Beldar in Madhya Ganga Nahar Nirman Mandal I, Meerut on 01.01.1982 as daily wage employee. He was promoted on 22.07.1997 are was required to discharge the work of Mali in the work charge establishment of Ganga Nagar Nirman Khand Meerut. After serving the department of about 21 years he died on 22.04.2003. The petitioner-respondent in accordance with the provisions of U.P. Recruitment of Dependant of Government Servant Dying in Harness Rules, 1974 (hereinafter referred to as '1974 Rules') applied for compassionate appointment but her case was not considered on the ground that her husband was not regular employee. The Hon'ble Single Judge has rejected the contention of the respondent-appellant that the petitioner-respondent was not entitled for compassionate appointment and has allowed the writ petition.
4. Sri Ganga Prasad the Additional Chief Standing Counsel submitted that under the 1974 Rules, the petitioner was not entitled for appointment after the death of her husband, as he was not a permanent employee of the department. For the said purpose he relied upon Rule 2(a) of 1974 Rules, which defines government servant. He further submits that unless and until a government employee is permanent employee, the provisions of 1974 Rules are not applicable.
5. We have considered the aforesaid submission and do not find any force.
6. The definition of government servant as contained in 1974 Rules, clearly includes 'not only the Government Servant in permanent service but even temporary government government servant and also those not regularly appointed but have put in three years continuous service'. Rule 2(a) of the 1974 Rules is as under:
2. Definition- 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 regular appointed, had put in three years continuous service in regular vacancy in such employment.'
7. It is not the case of the appellant that husband of the petitioner was not working in regular vacancy and even otherwise when he was promoted in the year 1997 the same was not an appointment made in accordance with Rules. It appears that the appellants are under the impression that unless and until government servant is permanent employee 1974 Rules is not applicable. The said view of the appellant is not correct and rather contrary to the Rules.
8. Therefore, we do not find any reason to interfere with the aforesaid judgment. The special appeal is accordingly dismissed. No orders as to cost. "
Facts of the present case are clearly nearer to the facts and principles settled in the aforesaid judgment. Consequently in the facts and circumstances of the present case Respondents are directed to consider the claim of the petitioner for grant of compassionate appointment preferably within next two months from the date of presentation of certified copy of this order.
With the above direction, present writ petition is allowed and disposed of.
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