Awadhesh Kumar vs State of U.P. and Others

Devendra Kumar Upadhyaya, J.—The petitioner in the instant writ petition has prayed for issuing a direction to the opposite parties to consider his case for appointment on compassionate ground.

Learned Standing Counsel, who has accepted notice on behalf of opposite parties, has submitted that since father of the petitioner was not in regular employment of the State and he was working as part-time Tubewell Operator, hence, the benefit of U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 (hereinafter referred to as the ''Rules, 1974'') is not available to the petitioner.

In support of his argument, learned Standing Counsel has placed reliance on the Full Bench judgment of this Court reported in 2010 (8) ADJ 664 (FB), Pawan Kumar Yadav vs State of U.P and others.

On the other hand, learned counsel for the petitioner has relied upon the judgment dated 25.07.2005 passed by this Court at Allahabad in Civil Misc Writ Petition No. 51469 of 2005, Vijay Kumar Yadav vs State of U.P. and others and submitted that benefits of Rules of 1974 are available even to the dependents of part-time government employees as well. He has drawn attention of this Court to the following observations made by Hon''ble Single Judge in the aforesaid judgment dated 25.07.2005 rendered in the case of Vijay Kumar Yadav (supra):-

Upon the death of the petitioner''s father, the petitioner applied for an appointment on compassionate ground under the Dying in Harness Rules 1974. This Court, by an order dated 18.12.2000, passed in Civil Misc Writ Petition No. 54397 of 2000, directed the respondents to decide the representation of the petitioner. The petitioner''s representation was rejected by an order dated 27.12.2000, against which, the petitioner preferred Civil Misc Writ Petition No. 2286 of 2001, which was allowed and, the impugned order was set aside and the respondents were directed to reconsider the application of the petitioner under the Dying in Harness Rules. It further transpires, that the respondents, by an order dated 7/9.04.2001, again rejected the petitioner''s application on the ground that the Dying in Harness Rules 1974 was not applicable to an employee appointed on a part time basis. This order was again challenged by the petitioner in Civil Misc Writ Petition No. 16135 of 2001, which was allowed by a judgment dated 1.02.2005, and the said order, was quashed. This Court held, that the Dying in Harness Rules would apply even to a part time employee. This Court in its judgment, while allowing the writ petition, remanded the matter back to the authorities to consider as to whether the petitioner''s father was working on a regular vacancy or not. The respondents, by an order dated 16.03.2005, has again, rejected the application of the petitioner for appointment under the Dying in Harness Rules on the ground that the petitioner''s father was not appointed on a regular vacancy and was given employment on the basis of requirement of work and since, the petitioner''s father was appointed as a part time Tube-Well Operator, his services could not be regularized under the 1996 Rules. The competent authority further held that since the services of the petitioner''s father could not be regularized, the petitioner was not entitled for an appointment under the Dying in Harness Rules.

I have considered the arguments advanced by learned counsel for the parties.

It is noticed that the judgment being relied upon by learned counsel for the petitioner was passed on 25.07.2005 by learned Single Judge in the case of Vijay Kumar Yadav (supra) whereas the judgment being relied upon by learned Standing Counsel appearing for the State in the case of Pawan Kumar Yadav (supra) is subsequent to the judgment being relied upon by learned counsel for the petitioner.

Rule 2 of the Rules 1974 runs as under:-

Definitions- In these rules, unless the context otherwise

requires:-(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.

Relying on the definition of the ''Government Servant'' given in the said Rules and also culling down the entire case laws on the issue, Full Bench of this Court in the aforesaid judgment in the case of Pawan Kumar (supra) has held as under:-

A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than three years, is not a ''Government servant'' within the meaning of Rule 2 (a) of U.P Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974, and thus his dependents on his death in harness are not entitled to compassionate appointment under these Rules.

In view of the aforesaid dictum of the Full Bench, wherein it has been held that a daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, were not appointed in any regular vacancy and hence, are not a ''Government servant'', the Court is of the view that part-time Tubewell Operator is not a "Government Servant" within the meaning of the word as given in Rule 2 of the Rules 1974.

Learned counsel for the petitioner has failed to substantiate as to how the part-time tubewell operator (like father of the petitioner) is covered within the definition of word ''Government Servant'' as given in Rule 1974.

The Court is, thus, of the considered view that in view of the Full Bench judgment rendered in the case of Pawan Kumar Yadv (supra), the petitioner does not have any legal right to claim for appointment on compassionate ground, as such, this writ petition being devoid of merit is hereby dismissed.