Kaushal Kumar vs State of U.P. and others

Hon''ble V.K. Shukla, J.—Earlier petitioner had preferred Civil Misc. Writ Petition No. 37438 of 2011 (Kaushal Kumar Vs. State of U.P. and others) before this Court and this Court on 11.07.2011 has proceeded to pass following order:

Since the petitioner has already approached the authority competent raising his claim for compassionate appointment and his claim has not yet been decided, this petition is finally disposed of without expressing any opinion on merits, with a direction to respondent No. 3 to decide the claim of the petitioner for compassionate appointment, in accordance with law keeping in view the law laid down by the Hon''ble Apex Court in General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Others, by speaking and reasoned order within a period of three months from the dat of production of certified copy of this order.

Petitioner thereafter represented the matter and claim of the petitioner has been considered for grant of compassionate appointment and same has been turned down vide order dated 14.09.2011 on the ground that petitioner''s father was part-time tubewell operator and has never been regularized, in view of this petitioner''s claim will not fall within the scope and ambit of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. At this juncture petitioner has again rushed to this Court.

Learned counsel for the petitioner contended that part time tubewell operators were as good as regular tubewell operator and claim of the petitioner in all eventuality is liable to be considered and the view which has been taken is erroneous view and same is liable to be set aside.

Countering the said submission learned Standing counsel on the other hand contended that claim of the petitioner is totally misconceived and once father of the petitioner has never regularized, no relief or reprieve can be accorded to the petitioner.

After respective arguments have been advanced, undisputed factual position, which is emerging is that petitioner''s father had been performing and discharging his duty as part time tube well operator and had never been regularised as Tube-well operator in consonance with the 1986 Rules meant for extending benefit of regularization to part-time Tube-Well operators. Special Appeal Bench of this court (Lucknow Bench) in Special Appeal No. 117 of 2000 State of U.P. Vs. Smt. Phoola Devi decided on 14.7.2000 has set aside the order passed by the learned Single Judge for grant of compassionate appointment qua dependant of part time tube well operator. Claim of petitioner is clearly in teeth of aforementioned judgment of Special Appeal Bench of this court.

Reliance has been placed by petitioner on judgment rendered in Civil Misc. Writ Petition No. 33685 of 2002 Akhilesh Kumar Chaubey Vs. State of U.P. and others that part time tube well operator are at par with the regular tube well operator and on the principle of ''equal pay for equal work'' as such similar treatment be extended. Engagement in administrative exigency and the principle of equal pay for equal work has been considered at length by the Hon''ble Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, and based on the principles settled therein part time tube well operator, by no stretch of imagination can be treated at par with the regular tube well operator, as the methodology of selection and appointment of regular Tube-Well operator and part-time Tube well operator is altogether different. There is nothing on record on the basis of which presumption can be drawn that part-time Tube-well operator are at part with Tube-well operator. Recently, Hon''ble Apex Court in the case of U.P. Gram Panchayat Adhikari Sangh Vs. Daya Ram Saroj, decided on 1.12.2006, reported in The Allahabad Daily Judgements ( ADJ) SC 229, set aside the directive of the Division Bench judgment of this Court dated 8.2.2006, wherein Part-time Tube-well operators were directed to be treated as permanent employees. Once Special Appeal Bench, has taken decision then judicial discipline, obligates to follow the same in preference to judgment of single judge.

Coupled with Apex Court in the case of General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Others, has clearly taken view that daily wager, work charge employee and part-time incumbent do not fall within the scope and ambit of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974.

Consequently, present writ petition is dismissed.