Court No. - 34
Case :- WRIT - A No. - 62407 of 2009 Petitioner :- Mahesh Kumar Respondent :- State of U.P. and Others Counsel for Petitioner :- Lalit Ji Sinha,Babu Ram Yadav,Ranjana Singh,Vijay Kumar Ojha Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J. Heard learned counsel for parties.
This petition has been preferred seeking the following reliefs:
"i) issue, a writ, order or direction in the nature of certiorari quashing the impugned Order dated 29.6.2009 passed by respondent No.3 (Annexure No.4) on the above noted writ petition and impugned Government Order dated 29.1.2003 passed by the respondent No.1 (Annexure No.5).
ii) issue, a writ, order or direction in the nature of mandamus directing the commanding the respondent to appointment the petitioner in P.W.D. Allahabad on compassionate ground the Dying in Harness Rules on Class IVth Post."
The petitioner assails the impugned order in terms of which his claim for appointment on compassionate grounds has come to be refused. The principal reason which has been assigned is that the father of the petitioner was working as a Beldar in a work charged establishment till the time of his untimely death on 21 June 2006. Taking into consideration the nature of his appointment, the respondents have taken the position that the claim for appointment on compassionate grounds cannot be acceded to. Learned counsel placing reliance upon the various documents which have been appended along with the supplementary affidavit however contends that the pay fixation orders would establish that the father of the petitioner was granted a permanent pay scale. According to the learned counsel those orders also evidence directions being issued for the payment of minimum in the pay scale to employees like the father of the petitioner even though they may have been working in a work charged establishment.
The aforesaid orders, in the considered opinion of the Court would not come to the aid of the petitioner bearing in mind the definition of a government servant as employed in the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974. Rule 2(a) while defining the expression "government servant" provides 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;"
As is manifest from a reading of that Rule, in order to claim the benefits of compassionate appointment it was incumbent upon the petitioner to establish that his father was employed under the respondents either in a permanent capacity, temporarily or regularly employed or though not regularly employed had put in three years' service in a regular vacancy. The Explanation to Rule 2(a) further defines 'regularly appointed' to mean an appointment made in accordance with the procedure laid down for recruitment "to a post or service". The engagement of the father of the petitioner who was undisputedly working in a work charged establishment was clearly not an appointment to a post under the respondents. The Court additionally bears in mind the fact that the prayer for compassionate itself is pressed in the backdrop of a death which occurred in 2009. Bearing in mind the principles enunciated by the Full Bench of the Court in Shiv Kumar Dubey Vs. State of U.P And Others [2014 (2) ADJ 312], the Court finds no ground to issue the writs as prayed for or to interfere with the order impugned.
Consequently, the writ petition fails and is dismissed.
Order Date :- 22.9.2021 Arun K. Singh