Hon'ble S.C. Chaurasia,J.
1. Heard learned counsel for the parties'. In both the writ petitions, common question of law and fact is involved, hence, with the consent of the parties' we proceed to decide both the writ petitions finally by the present common judgment.
2. Smt. Durgesh Hukku, the petitioner of Writ Petition No. 1083 (SB) of 2010 was appointed on compassionate ground on the post of Assistant Director on 1.6.1993. Whereas, Shri Maya Lal, the petitioner of Writ Petition No. 1350(SB) of 2011 was appointed subsequent to petitioner in clerical cadre and promoted on the post of Office Superintending in the year 2000. It appears that in the year 1996 Service Rules were framed regulating the service condition of the employees of the department which contains the different promotional avenues under the staffing pattern. It transpires from the evidence on record that on account of arising of dispute with regard to promotional avenues, by the impugned order 13.7.2010, ex cadre post was created for Smt. Durgesh Hukku with the provision that she shall continue on the post of Assistant Director till her retirement and post shall deem to be abolished immediately after retirement.
3. While assailing the impugned order dated 13.7.2010 it has been submitted by the petitioner's counsel that no ex-cadre post could have been created to deprive the petitioner from her promotional avenues in the department. It has been submitted that appointment on compassionate ground under the dying in harness Rules 1973 amounts to regular appointment. Under Rule 4 of the U.P. Government Servant Dying in Harness Rules 1974 (in short hereinafter referred as 1974 Rules) appointments on compassionate grounds are made. The rule has got overriding effect on all other rules regulating the service conditions. Meaning thereby person appointed under the 1974 Rules shall deem to be regular appointee though on compassionate ground. A combined reading of Rules 4,5,6 and 7 of the 1974 Rules reveal that the recruitment under 1974 rules on compassionate ground shall be at par with the regular recruitment in the government service.
4. A Division Bench of this Court in a case reported in 1999 (17) LCD 641, Ravi Karan Singh Vs. State of U.P. and others after considering the earlier judgement had ruled that a person appointed under 1974 Rules shall deem to be permanent appointee and not a temporary or ad hoc. The Division Bench judgement is reproduced as under:-
"This petitioner has come up before us on a reference made by the learned Single Judge by his order dated 19.12.1997. The point involved is very simple, that is, whether an appointment under The Dying in Harness Rules is a permanent appointment or a temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appointment vide Budhi Sagar Dubey v. D.I.O.S. 1993 Education and Service Cases 21, Gulab Yadav V. State of U.P. and others 1991 (2) UPLBEC 995 and Dhirendra Pratap Singh V. D.I.O.S. and others 1991 (1) UPLBEC 427. The learned Single Judge who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.
2.In our opinion, an appointment under The Dying in harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rule because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules 1975 will not apply to such appointments.
3.The petition is disposed of accordingly.
(ordered accordingly)"
5. Aforesaid judgment has been followed by another Division Bench judgment of this Court decided by a judgment and order dated 6.2.2012 in Writ Petition No. 1852 (SB) of 2011, Mrs Arati Srivastava Vs. State of U.P. through Principal Secretary Department of Women and Child and others.
6. In view of settled proposition of law, the petitioner shall deem to be regular appointee right from 1.6.1993. Accordingly, she shall be entitled for all consequential service benefits including promotional avenues. It shall be obligatory on the part of respondents to consider the petitioner as regular employee for promotional avenues.
7. Keeping in view the fact that petitioners was appointed prior to promulgation of service rule which was notified in the year 1996 namely; "The Uttar Pradesh Bal Vikas Evam Pushtahar (Group-A and Group-B) Service Rules, 1996, (in short hereinafter referred as 1996 Rules) it shall not affect the petitioner's appointment. A perusal of the 1996 Rules reveals that it contain various promotional avenues with regard to employees appointed in the department. Petitioner Smt. Durgesh Hukku shall deem to be regular appointee in the department and shall be entitled for benefit of 1996 Service Rules notified on 4.7.1996.
8. It appears that while passing the impugned order dated 13.7.2010 State Government has not considered the aforesaid settled proposition of law and treated the petitioners' employment as temporary falling under the ex cadre category. Accordingly, ex cadre post of Vishesh Karya Adhikari (OSD) was created by the State Government. Once the petitioner was appointed on the post of Assistant Director on compassionate ground under 1974 Rules then she shall, as observed (supra) deemed to be regular employee appointed on the post of Assistant Director. It was not lawful on the part of State to shift the petitioner's employment on the newly created post of Vishesh Karya Adhikari (OSD). Petitioner Smt. Durgesh Hukku shall be entitled to continue on the post of Assistant Director with all consequential benefits.
Thus, so far as the case of Maya Lal is concerned, his case may be considered by respondents with regard to promotional avenues under the 1996 Rules subject to eligibility and availability of post.
9. Learned counsel for the petitioner of Writ Petition No. 1350 (SB) of 2011 has invited attention towards Rule 5 B of the 1996 Rule, which is for convenience is reproduced as under:-
HkrhZ dk lzks=& lsok esa fofHkUu Jsf.k;ksa ds inksa ij HkrhZ fuEufyf[kr lzksrksa ls dh tk;sxh& ¼d½ vij ifj;kstuk izcU/[email protected];Zdze vf/kdkjh% ¼eq[;ky;½&ekSfyd :i ls fu;qDr ftyk dk;Zdze vf/kdkfj;ksa vkSj lgk;d funs'kdksa esa ls ftUgksus HkrhZ ds o"kZ ds izFke fnol dks bl :i esa lkr o"kZ dh lsok iwjh dj yh gks] inksUufr }kjk A ¼[k½ lgk;d funs'kd&ekSfyd :i esa fu;qDr vuqHkkx vf/kdkfj;ksa] dk;kZy; v/kh{kd Js.kh&nks vkSj oS;fDrd lgk;dksa esa ls ftUgksus HkrhZ ds o"kZ ds izFke fnol dks bl :i esa lkr o"kZ dh lsok iwjh dj yh gks] inksUufr }kjk A ¼x½ ftyk dk;Zdze vf/kdkjh % ¼, d½ ipkl izfr'kr lh/kh HkrhZ }kjk A ¼nks½ ipkl izfr'kr ekSfyd :i ls fu;qDr cky fodkl ifj;kstuk vf/kdkfj;ksa esa ls ftUgksus HkrhZ ds o"kZ ds IkzFke fnol dks bl :i esa nl o"kZ dh lsok iwjh dj yh gks vkSj ekSfyd :i ls fu;qDr {ks+= [email protected]"k.kfonksa esa ls ftUgksus HkrhZ ds o"kZ dh lsok iwjh dj yh gks] inksUufr }kjk % ijUrq ipkl esa ls dsoy ,d fjfDr {ks= [email protected]"k.kfonksa esa ls Hkjh tk;sxh A ¼?k½ vuqHkkx vf/kdkjh&ekSfyd :i ls fu;qDr dk;kZy; v/kh{kd Js.kh& nks vkSj izoj oxZ lgk;dksa esa ls ftUgksus HkrhZ ds o"kZ ds izFke fnol dks bl :i esa lkr o"kZ dh lsok iwjh dj yh gks] inksUufr }kjk A ¼M+½ cky fodkl&fodkl ifj;kstuk vf/kdkjh ¼,d½ ipkl izfr'kr lh/kh HkrhZ }kjk A ¼nks½ ipkl izfr'kr ekSfyd :i ls fu;qDr vij cky fodkl ifj;kstuk vf/kdkfj;ksa esa ls vkSj ,sls vf/kdkfj;ksa ds miyC/k u gksus dh fLFkfr esa] ekSfyd :i ls fu;qDr i;Zos{kdksa esa ls] ftUgskus HkrhZ ds o"kZ ds izFke fnol dh bl :i esa ckjg o"kZ dh lsok iwjh dj yh gks] inksUufr }kjk A ¼Pk½ vij cky% fodkl ifj;kstuk vf/kdkjh& ekSfyd :i ls fu;qDr i;Zos{kdks esa ls] ftUgksusa HkrhZ ds o"kZ ds izFke fnol dh bl :i esa nl o"kZ dh lsok iwjh dj yh gks] inksUufr }kjk A ¼N½ funs'kd ds oS;fDrd lgk;d &ekSfyd :i ls fu;qDr oS;fDr lgk;d dfu"B osrueku vkSj vk'kqfyfid T;s"B osrueku esa ls ftUgksusa HkrhZ ds o"kZ dh lsok iwjh dj yh gks] inksUufr }kjk A"
10. A plain reading of the aforesaid rule reveals that promotion on the post of Assistant Director shall be done from the employees appointed on regular basis and working on the post of Anubhag Adhikari (Section Officer), Office Superintendent and Personal Assistant. While passing the impugned order dated 24.5.2011 the authority has not taken into account the provision contained in Rule 5 B of the Service Rule (supra). The State Government had not applied mind towards the Rule 5 B of the 1996 Rule under which petitioner's case could have been considered.
11. In view of above, Writ Petition No. 1083 (SB) of 2010 is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 13.7.2010 passed by the State Government contained in Annexure-1 to the writ petition with all consequential benefits. Petitioner shall be permitted to continue on the post of Assistant Director with all consequential benefits treating her in regular employment w.e.f. 1.6.1993 and also entitled to be considered for promotional avenues in accordance to 1996 Rules.
Writ Petition No. 1350 (SB) of 2011 is also allowed. The impugned order dated 24.5.2011 is quashed. Respondents are directed to reconsider petitioner's case with regard to promotional avenues in terms of Rule 5 of the 1996 Service Rule, subject to eligibility and availability of posts.
10. Both the writ petitions are allowed accordingly. No costs.
Order Date :- 3.7.2012 Madhu