Court no.34
Case :- SPECIAL APPEAL No. - 1297 of 2005 Appellant :- State Of U.P. Thru Secy. Irrigation Deptt And Others Respondent :- Vijay Kumar Yadav Counsel for Appellant :- S.C. Counsel for Respondent :- R.K. Singh
Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.
1. Heard learned Standing Counsel for appellant. None appears on behalf of respondent.
2. This intra Court Appeal has been filed under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as 'Rules, 1952') arising from judgment dated 25.07.2005 of a learned Single Judge in Writ Petition No.51469 of 2005.
3. Facts, in brief, are that petitioner's father Harinath Yadav was working as ad hoc Tube Well Operator since 1981. By order dated 18.12.1982, he was appointed as a part time Tube Well Operator on a temporary post. In the year 1996 under proviso of Article 309 of Constitution of India, Rules were framed namely “U. P. Irrigation Department Regularization of Part Time Tube Well Operator on the post of Tube Well Operator Rules, 1996” (hereinafter referred to as 'Rules, 1996'). Aforesaid Rules contemplated that part time Tube Well Operators appointed before 01.10.1986 and continuing in service, shall be regularized.
4. Consequently, petitioner's father by order dated 03.05.1997 was regularized. In an arbitrary manner, appellants issued another order dated 10.06.1997 withdrawing regularization order dated 03.05.1997 of petitioner's father. However, petitioner's father continued to work and retired after attaining age of superannuation on 25.08.2000.
5. Thereafter, petitioner applied for compassionate appointment under Dying in Harness Rules, 1974 (hereinafter referred to as Rules 1974), but when request was not heeded, he preferred Writ Petition No.54397 of 2000, which was decided vide order dated 18.12.2000 directing appellants to decide representation of petitioner. The representation was rejected vide order dated 27.12.2000 whereagainst petitioner preferred Writ Petition No.2286 of 2001. It was allowed and appellants were directed to consider the petitioner's application under Rules 1974. Again it was rejected on 07/09.04.2001 on the ground that Rules, 1974 are not applicable to the petitioner's father, since, he was a part time Tube Well Operator. Then again a Writ Petition No.16135 of 2001 was filed. It was allowed vide judgment dated 01.02.2005 whereby Court set aside the order dated 07/09.04.2001 and held that even a part time employee is entitled for benefit of Rules 1974. It is not in dispute that between parties aforesaid judgment has attained finality and it was never challenged by appellants by taking the matter further in intra Court appeal before this Court or before Apex Court in Special Leave to Appeal. Appellants again rejected petitioner's claim of compassionate appointment by order dated 16.03.2005 and it is this order which has been set aside by learned Single Judge vide judgment dated 25.07.2005 holding that view adopted by respondents-appellants is totally misconceived, since, it is contrary to judgment passed by learned Single Judge on 01.02.2005 and respondents-appellants are not free to take a different view.
6. It has also come on record that during pendency of this appeal, petitioner has already been appointed as Junior Assistant by order dated 12.12.2005 and by order dated 11.09.2014 he has been confirmed with effect from 01.09.2014.
7. Learned Standing Counsel could not dispute that order dated 01.02.2005 passed by this Court in Writ Petition No.16135 of 2001 has attained finality between the parties and if that be so, principles of res judicata would operate and appellants are not free to take a subsequent or different view in the matter and this is what has been said by learned Single Judge while setting aside order dated 16.03.2005.
8. Considering the entire facts of this case and taking a holistic view, we do not find any reason to interfere with the judgment of learned Single Judge at this stage. Appeal lacks merit.
9. Dismissed accordingly.
10. Interim order, if any, stands vacated.
Order Date : 28.01.2019 Manish Himwan