Hon'ble Mahendra Dayal,J.
This Special Appeal has been preferred against the judgment and order dated 9th December, 2003, passed in Writ Petition No. 3518(S/S) of 1999, by which the writ petition was allowed with the direction to the opposite parties-appellants to provide the benefit of the judgment and order dated 15.12.1998, passed in Writ Petition No. 41226 of 1998 to the respondent-petitioner.
Awadesh Kumar Maurya, legal heir of late Achhaya Ram Maurya, who had expired while in service, moved an application for appointment under Dying in Harness Rules. Representation was preferred by the mother of respondent on 21.8.1997 but appointment under Dying in Harness Rules was not offered to the heir of the deceased.
Aggrieved by the inaction of the authorities in not considering the application of the respondent for appointment under Dying in Harness Rules, the respondent-petitioner filed a Writ Petition No. 3518(S/S) of 1999. By the impugned judgment the learned Single Judge allowed the writ petition and directed the authorities to provide the same benefit as given to the petitioner of Writ Petition No.41226 of 1998.
Being dis-satisfied with the aforesaid judgement and order dated 9.12.2003 the State has filed the present appeal interalia on the ground that Achhay Ram Maurya was a part time Tube-well Operator and as such his dependent is not entitled for appointment under the Dying in Harness Rules. It has also been brought to the notice of the Court that the judgement passed in the case of Smt. Phoola Devi Versus State of U.P. which has been relied upon by the learned Single Judge, has been set aside by a Division Bench of this Court vide judgment and order dated 14.7.2000 passed in Special Appeal No. 117 of 2000, State of U.P. another Vs. Smt. Phoola Devi. In these circumstances, the impugned judgement is liable to be set aside.
Heard learned counsel for the parties.
The Governor of Uttar Pradesh under proviso in Article 309 of the Constitution made the Irrigation Department Tube-well Operators Service Rule, 1953 on October 5, 1953. Sub clause (IV) of rule-3 defines "members" of service and it means a person appointed in substantive capacity under the provisions of rules or of rules enforce previous to the introduction of these rules to a post in the cadre of the service. Sub clause (h) of the same rule defines "service" and it means the Irrigation Department Tube-well Operators Service.
U.P. Irrigation Department Regularization of Part-time Tube-well Operators on the post of Tube-well Operator Rules, 1996 were promulgated by the Governor on 16.12.1996. Sub Rule (1) of rule 4 of these Rules provides that any person, who was appointed on the post of part-time tube well operators before October 01.10.1986 and is continuing in service as such on the date of commencement of the rules and possess requisite qualifications prescribed for regular appointment to the post of tube-well operator at the time of such part-time appointment shall be considered for regular appointment to the post of tube-well operator on the basis of vacancies available, the record and ability of the candidate in accordance with the service rules. The sub rule (3) to (6) of the rule-4 further provided that a selection committee shall be constituted to consider the case of the candidates on the basis of the record and shall prepare the list of selected candidate arranged in order of seniority and forward the same to the appointing authority.
Rule-7 of the above said rules further provides that the services of a person appointed on the post of part-time tube-well operator, who is not even suitable or whose case is governed under sub rule (1) of rule-4 of these rules shall be terminated forthwith and at the time of such termination he shall be entitled to one month's pay and fixation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months. The provisions of these rules clearly shows that the part-time tube-well operator, who was appointed after 1.10.1986 and those whose cases were not covered under sub rule (1) of Rule-4, would be terminated forthwith. Thus the post of part-time tube-well operator stood abolished in view of the said Rules.
Prior to coming into force of the Rules 1996 a part-time tube-well operator had no avenue for promotion nor he could be promoted to the post of regular tube-well operator and as such there was no occasion whatsoever to treat the father of the respondent late Sri Achhaya Ram Maurya as full time tube-well operator.
It would be relevant to point out that vide judgment passed by this Hon'ble Court in Writ Petition No. 41266 of 1990, Smt. Phoola Devi Vs. State of U.P. and others dated 15.12.1998, which was relied upon by the Hon'ble Single Judge while passing the impugned judgment and order was subsequently set-aside by a Division Bench of this Hon'ble Court in Special Appeal No. 117 of 2000, State of U.P. and another Vs. Smt. Phoola Devi on 14.7.2000.
In view of the above, the special appeal is allowed. The order dated 9.12.2003, passed by the learned Single Judge stands set aside and the writ petition is dismissed.
Order Date :- 19.9.2014 Muk .
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Case :- SPECIAL APPEAL No. - 302 of 2004 Appellant :- State Of U.P.Through Prin. Secy. Deptt. Of Irrigation Civil Respondent :- Awadhesh Kumar Maurya Counsel for Appellant :- C.S.C.
Counsel for Respondent :- S.P.Dubey,R.C.Tiwari Hon'ble Rajiv Sharma,J.allowed Hon'ble Mahendra Dayal,J.
(C.M. Application No. 27527 of 2004) Heard on application for condonation of delay.
Cause shown in the affidavit filed in support of application for condonation of delay is satisfactory.
Application is allowed.
Delay is condoned.
Order Date :- 19.9.2014 Muk