Kishan Lal vs State of U.P.and Others

Devi Prasad Singh, J.—Heard learned counsel for the parties.

Since the controversy involves a very short question, I proceed to decide the writ petition finally at admission stage.

Petitioner''s father was a permanent Beldar who expired during the course of his service on 25.1.1992. After the death of his father, petitioner applied for appointment on compassionate ground. Application moved by the petitioner was considered by the competent authority and at later stage he was appointed on compassionate ground. The grievance of the petitioner is that inspite of appointing the petitioner as regular employee, he was appointed as daily wager. It is settled law that appointment of dependent of regular employee on compassionate ground should be done against the regular vacancy and in case regular vacancy is not available supernumerary post should be created for appointment on compassionate ground. In the present case the petitioner has been appointed as daily wager by the authorities, which at the face of record seems to be not sustainable under law. Learned counsel for the petitioner has relied upon a judgment reported in 1999 (17) LCD 641: Ravi Karan Singh v. State of U.P. and Others, and proceeded to submit that appointment as daily wager by the opposite parties under Dying in Harness Rules is not sustainable under law. In the case of Ravi Karan Singh (supra) the Division Bench has proceeded to held as under:

�Hon''ble M. Katju, J. & Hon''ble Kamal Kishore, J.

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 a temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appointment vide Budhi Sagar Dubey v. D.I.O.S., 1993 Education and Service Case 21, Gulab Yadav v. State of U.P. and Others, 1991 (2) UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. and 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 Rules 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 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 settled provisions of law appointment of the petitioner as daily wager seems to be not sustainable. Accordingly, a writ in the nature of mandamus is issued commanding the opposite parties to pass fresh order appointing the petitioner from the initial date of his recruitment as regular employee in the same cadre with all consequential benefits keeping in view the observation made hereinabove.

Let necessary exercise be done expeditiously and preferably within a period of three months from the date of receipt of certified copy of this order.

Writ petition is allowed accordingly. No order as to casts.

(Petition allowed)