Court No. - 19
Case :- WRIT - A No. - 50304 of 2014 Petitioner :- Arun Singh Respondent :- State Of U.P. And 4 Ors Counsel for Petitioner :- Ashok Kr. Lal,R.K. Gupta Counsel for Respondent :- C.S.C.
Hon'ble Manoj Kumar Gupta,J.
Heard counsel for the petitioner and learned standing counsel for the respondents.
The petitioner has questioned the validity of the order dated 21.3.2014 passed by respondent no.3, Additional Commissioner/Additional Registrar (Banking), Cooperative Societies, U.P., Lucknow rejecting the claim of the petitioner for compassionate appointment.
The facts in brief are that the father of the petitioner Ram Bahadur was posted as Assistant Officer, Collection (Sahyogi Sangrah) in the office of respondent no.5 District Assistant Registrar, Cooperative Department, Mathura. He died on 22.1.2013 while in harness. The petitioner filed an application in prescribed format on 16.3.2013 seeking compassionate appointment as per the provisions of Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as '1974 Rules').
By impugned order, claim of the applicant for compassionate appointment has been rejected on the ground that the post of Sahyogi Sangrah, held by father of the petitioner, was declared as dying cadre vide notification dated 5.2.2014. It is also observed that the post of Sahyogi Sangrah is not included in Uttar Pradesh Cooperative Collection Fund and Amins and Other Staff Service Rules, 2002.
Learned counsel for the petitioner submitted that the grounds on which his claim has been rejected, are wholly unsustainable in law. It is urged that the controversy in question is covered by judgement of this Court dated 5.4.2007 in Writ petition No.44810 of 2001 Kaushlendra Kunwar vs. Registrar, Cooperative Societies, U.P., Lucknow and others, wherein also the claim for compassionate appointment was rejected on identical grounds, but the same was not found sustainable and a direction was issued for reconsidering the claim for compassionate appointment.
The relevant part of the said judgement is reproduced below :-
"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 to the 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 ."
It is further submitted that following the said judgement, another judgment was delivered by the Lucknow Bench of this Court on 3.7.2018 in Service Single No.12054 of 2016 Sanjay Kumar Singh vs. State of U.P. and others, in which once again similar direction was issued. In the said judgement the Court also took note of the fact that where the death of the employee took place before the post was declared as Dying Cadre, the right which had come to vest in favour of members of family of deceased employee, could not be taken away. It is submitted that in the instant matter also death took place on 22.1.2013, while the post of Sahyogi Sangrah was declared as Dying Cadre subsequently on 5.2.2014. Consequently, the rights which have accrued in favour of the petitioner, could not be divested.
Learned counsel appearing on behalf of the State-respondent is not in a position to distinguish the aforesaid judgement from the facts of the instant case. He infact concedes that the instant matter is concluded by the above referred judgements.
Accordingly, it is held that the father of the petitioner was a 'Government Servant' within the meaning of the Rules, 1974 and after his death, the petitioner is entitled to his claim being considered under the Rules, 1974. Resultantly, the impugned order dated 21.3.2014 is quashed.
The respondents are directed to consider the claim of the petitioner afresh in accordance with law expeditiously, preferably within a period of 12 weeks from the date of production of a certified copy of this order as per the provisions of 1974 Rules.
The writ petition stands allowed to the extent indicated above.
(Manoj Kumar Gupta, J.) Order Date :- 27.10.2018 skv