1. Heard learned counsel for the petitioner and learned ACSC for respondent - State.
2. By means of present writ petition, the petitioner is challenging the order dated 26.04.2018, whereby the claim of petitioner for appointment on compassionate ground has been rejected on the ground that claim of her husband for regularization was not covered under the Rules of 2001.
3. Fact of the case is that husband of the petitioner was granted appointment as daily wager in Public Works Department (PWD) on the post of Beldar on 01.03.2000. At earlier point of time, his service was regularized vide order dated 02.09.2014 and medical examination was also conducted by the Chief Medical Officer, Unnao. Subsequently, he died on 25.04.2014. The petitioner claimed appointment on compassionate ground due to death of her husband. When no consideration was made, she filed Writ Petition No.20628 (S/S) of 2017, which was finally disposed of vide order dated 04.09.2017.
4. In the order, it was observed that the Division Bench of this Court in the case of State of U.P. and others Vs. Kuldeep Thakur, reported in 2017 (35) LCD 696, after taking notice of full bench judgment in the case of Pawan Kumar Yadav Vs. State of U.P. and others reported in 2011 (1) AWC 1028 has been pleased to observe that in a case, where the claim for regularization is covered under the rules, the mere fact that no formal order has been passed, could not be a ground for non consideration of claim of the petitioner for compassionate appointment.
5. In the light of said observation, the respondent - Chief Engineer was directed to take decision in the matter. Now, vide impugned order dated 26.04.2018, claim of the petitioner has been rejected.
6. Submission of learned counsel for the petitioner is that while deciding claim of the petitioner, respondent No.2 has taken notice of the Regularization Rules of 2001 instead of Uttar Pradesh Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group 'C' & Group 'D' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016 (for short "Rules of 2016") and erroneously rejected the claim of the petitioner.
7. His next submission is that the ground taken vide representation dated 14.09.2017 enclosing copy of the order passed by this Court has not been taken care of and without considering the contents, the respondents have proceeded to pass the impugned order. Thus, his submission is that due to non consideration of contents of the representation, the impugned order suffers from vices of principles of natural justice and is per se illegal.
8. His further submission is that in the case of Pawan Kumar Yadav (Supra), it has been held that in case claim of the petitioner is covered under the rules and there is no formal order of regularization, even then the claim for appointment on compassionate ground is liable to be considered. In the representation, the petitioner has given full facts and details claiming appointment on compassionate ground, which has not been considered and the impugned order has been passed.
9. On the other hand, learned State Law Officer pointed out that claim of the petitioner was duly considered and after taking notice of the Rules of 2001, claim of the petitioner was decided vide impugned order. He further submitted that the order impugned does not suffer from any infirmity or illegality and is just and valid.
10. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
11. In earlier writ petition No.20628 (S/S) of 2017, this Court passed the following order:
"It is stated that petitioner's husband was employed as a Beldar since 1.3.2000, and before his services could be regularized under the U.P. Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group 'C' and Group 'D' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016, he died in harness on 25th April, 2017. It is stated that except for the deceased employee, there is no other earning member in the family, and all other are dependent upon him. It is stated that persons similarly placed have also been regularized. It is stated that under the Rules of 2016, petitioner's claim was clearly covered and just because the respondents have not passed any order, in respect of petitioner's claim, it would not be proper to discard the petitioner's claim for compassionate appointment on the ground that deceased employee was not regularized.
Reliance is placed upon a Division Bench judgment of this Court in State of U.P. and others Vs. Kuldeep Thakur, reported in 2017 (35) LCD 696. The Division Bench after taking note of Full Bench judgment in Pawan Kumar Yadav Vs. State of U.P. and others, reported in 2011(1) AWC 1028, has been pleased to observe that in a case where the claim for regularization is covered under the Rules, the mere fact that no formal orders were passed could not be a ground for not considering the claim of petitioner for compassionate appointment. Contention is that in view of the law laid down, the respondents are not justified in not considering the petitioner's claim.
Learned Standing Counsel submits that petitioner's claim shall be examined, in accordance with law.
Considering the above, this writ petition stands disposed of with a direction upon respondent no.2 to examine petitioner's claim, in light of the observations made above and in accordance with law, and pass appropriate orders, within a period of three months from the date of presentation of certified copy of this order."
12. On its perusal, it is evident that claim of the petitioner in the writ petition was that case of her husband was covered under Uttar Pradesh Regularization of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group 'C' & Group 'D' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016 and taking into consideration said rules, a direction was issued for consideration of her claim for grant of appointment on compassionate ground in the department.
13. On perusal of the impugned order, it is evident that at no point of time the rules referred in the order dated 04.09.2017 were considered and only on the basis of Rules of 2001, the Chief Engineer has proceeded to pass the impugned order.
14. In the opinion of this Court, the Chief Engineer has ignored the order of this Court and has proceeded to pass the impugned order, therefore, due to non taking notice of relevant rules referred by this Court, the order impugned suffers from apparent illegality and shows non application of mind of the Chief Engineer.
15. On perusal of the order of this Court dated 04.09.2017, it is also transpired that the Division Bench and Full Bench judgments of this Court were taken into consideration while directing the respondents to consider the claim of the petitioner.
16. I have perused the impugned order, which also does not take notice of the fact that the judgment referred in the order has been considered by the Chief Engineer in passing the impugned order. Therefore, there is no hesitation to hold that the order is illegal and is not liable to sustain.
17. In view of reasons recorded above, the impugned order dated 26.04.2018 is liable to be set aside and is hereby set aside.
18. The writ petition succeeds and is allowed with a cost of Rs.25,000/- recoverable from the salary of respondent No.2- Chief Engineer - Sri A.K. Sharma, Public Works Department. In case he has retired from service, the recovery shall be made from his pension, if he is getting the same within period of two months from the date of production of a certified copy of this order.
19. It is further directed that the respondent No.2 shall pass a fresh order taking into notice the Rules of 2016 and order passed by this Court on 04.09.2017 on the claim of the petitioner within a period of two months from the date of production of a certified copy of this order.
Order Date :- 12.8.2021 Adarsh K Singh