Kailash Nath [State] vs State of U.P. and Others

Hon''ble Anil Kumar, J.—Heard Sri M.C. Yadav, learned counsel for petitioner, learned State counsel and perused the record.

Facts in brief of the present case are that petitioner''s father Sri Tribhuwan Dutta was working on the post of Lekhpal, District Barabanki, died on 14.01.1989 in harness.

As there is no member to earn livelihood for the deceased family, as such petitioner submitted an application for considering his case for appointment on compassionate ground but no heed has been paid in the matter in question, hence for redressal of his grievances, petitioner approached this Court by filling Writ Petition No. 1744 (SS) of 1992 (Kailash Nath Vs. State of U.P. and others). In the said writ petition, on 30.03.1992 an order was passed, on reproduction, the same reads as under:

The petitioner''s father died in service. the petitioner made a representation for providing employment, under Dying in Harness Rules.

Standing Counsel prays for and is allowed four weeks time to file the counter affidavit. The rejoinder affidavit may be filed within two weeks.

List in July, 1992. The opposite parties are directed to take a decision in the above matter and if the petitioner is eligible for the post and is entitled to get the benefits under the above rules, then, the petitioner may be given employment in accordance with the rules within one month from the date of receipt of this order or file the counter affidavit."

In pursuance to the said direction given by this Court by means of the order dated 01.06.1991 (Annexure No. 3 to the writ petition) the petitioner was appointed on the post of Class-IV employee in Tehsil, Rudauli, District Barabanki. However, by means of the impugned order dated 01.02.1993 (Annexure No. 1) passed by Tehsildar, Tehsil Raudauli, Barabanki, his services were terminated.

Aggrieved by the said facts, the petitioner filed present writ petition and on 16.02.1993, this court passed an order, relevant portion quoted as under:

Meanwhile the opposite parties would allow the petitioner to work and pay him salary.

Learned counsel for petitioner submits that in pursuance to the said facts, the petitioner still working and discharging his duties on the post in question.

Further, from the perusal of the document on record, it transpired that no counter affidavit has been filed on behalf of the State in spite of the time granted in this regard, as such keeping in view the law as laid down by Hon''ble the Apex Court in the case of Choksi Tube Company Limited versus Union of India 1997 (2) SCC 1997, when no counter affidavit has been filed by respondent in spite of time granted to them, the averment made in the writ petitioner are taken to be correct.

Further, it is settle proposition of law that the appointment of person on compassionate ground is of a permanent nature as held by a Division Bench of this Court in the case of Ravi Karan Singh Vs. State of U.P. and others, which is quoted herein below:-

This petition 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 temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appoint vide Budhi Sagar Dubey Vs. Dt. Inspector of Schools and Others, ; Gulab Yadav v. State of U.P. and others, (1991) 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. & 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.

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.

The petition is disposed of accordingly.

In view of the above said facts, the action on the part of O.P. No. 4/Tehsildar, Tehsil Rudauli, Barabanki thereby terminating the services of the petitioner without holding any inquiry or providing any opportunity of hearing to the petitioner is an action which is illegal and arbitrary in nature, thus, liable to be set aside.

For the foregoing reasons, writ petition is allowed and the order dated 01.02.1993 (Annexure No. 1) passed by Tehsildar, Tehsil Raudauli, Barabanki is set aside.

No order as to costs.