Court No. - 34
Case :- WRIT - A No. - 41069 of 2003 Petitioner :- Smt. Bhudevi Respondent :- State Of U.P. And Others Counsel for Petitioner :- A. Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri A. Kumar Singh, learned counsel for petitioner and learned Standing Counsel for respondent.
2. Petitioner's husband was a Tube Well Operator and died on 05.12.2002 in harness. Petitioner applied for compassionate appointment under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Rules, 1974"), but same was declined by Executive Engineer, Tubewell Division, Etah vide letter dated 08.01.2003 holding that petitioner's husband was not a regular employee, hence, benefit of Rules, 1974 was not applicable to petitioner. Petitioner came to this Court in Writ Petition No.16973 of 2003 which was allowed vide judgment dated 22.04.2003. This Court held that in view of Rule 2 (ka)(3) of Rules, 1974, petitioner was entitled for benefit of Rules, 1974, since, her husband was working in regular vacancy for more than three years and for this purpose Court relied on judgment dated 10.09.1998 passed by a Division Bench in Special Appeal No.409 of 1998, State of U. P. Vs. Maya Devi whereagainst Special Leave to Petition No.1203 of 1999 was dismissed on 05.02.1999. Executive Engineer's letter dated 08.01.2003 was quashed and he was directed to decide petitioner's application afresh. Consequently, by order dated 30.06.2003, Executive Engineer has granted appointment to petitioner on compassionate basis as Class IV employee. The order of appointment, however, mentions that appointment is temporary and liable to be terminated by giving a month's notice. Petitioner joined pursuant to aforesaid order. However by order dated 05.09.2003, Executive Engineer has cancelled appointment letter dated 30.06.2003 observing that appropriate guidance has not been given by concerned Higher Authorities, but it appears that as per view taken by Higher Authorities, appointment of petitioner was irregular and, therefore, the same has been cancelled by impugned order.
3. Aforesaid order dated 05.09.2003 has been challenged on the ground that petitioner was given compassionate appointment pursuant to judgment of this Court dated 22.04.2003 passed in Writ Petition No.16973 of 2003, which has attained finality and, therefore, appointment of petitioner could not be treated irregular. It is further contended that compassionate appointment is always substantive one and Executive Engineer having no power to review the same, could not have cancelled the same. Lastly, it is contended that impugned order has been passed in utter violation of principles of natural justice as no show cause or opportunity was given to the petitioner.
4. When questioned, learned Standing Counsel could not dispute that before passing the impugned order no opportunity was given to the petitioner. However, reliance is placed on counter affidavit filed by respondents stating that petitioner's husband was working as Part Time Tube Well Operator and, therefore, benefit of Rules, 1974 was not applicable to the petitioner.
5. So far as entitlement of petitioner for compassionate appointment is concerned, it is evident that a judgment was already given between the parties by this Court, which has attained finality and that being so, between the parties it was not open to respondents to re-agitate the same issue on which they earlier denied compassionate appointment to petitioner but said order has been set aside by this Court by allowing petitioner's earlier writ petition.
6. So far as contention that appointment was temporary, I find that this issue has already been decided by this Court in a judgment passed in Writ Petition No.16875 of 2004 decided on 31.10.2018 (Vikas Mishra Vs. State of U. P. and others), wherein it has been held that compassionate appointment is not temporary, but substantive, therefore, U. P. Temporary Government Servants (Termination of Service) Rules, 1975 are not applicable to compassionate appointment. Even the third ground is liable to be answered in favour of petitioner, inasmuch as, once the petitioner was appointed and joined, the appointment could not have been cancelled without giving any show cause notice or opportunity to petitioner.
7. Writ petition allowed. Impugned order dated 05.09.2003 is hereby set aside. Petitioner shall be entitled to all consequential benefits.
Order Date :- 26.10.2018 Manish Himwan