Mahesh Chandra Pant vs State Of Uttarakhand & Ors

Lok Pal Singh, J

By means of present writ petition, petitioner has sought the following reliefs:-

(i) Issue a writ order or direction in the nature of certiorari quashing the order dated 23.04.2018 (contained as Annexure No. 1 to this writ petition).

(ii) Issue a writ order or direction in the nature of mandamus directing the respondents to give the compassionate appointment to the petitioner under Dying in Harness Rules.

On 24.06.2019, Mr. Kuber Singh Bisht, District Forest Officer, Almora Forest Division was present in the Court and made statement that some posts are lying vacant in the Department.

Ms. Seema Sah, learned counsel appearing for the State has furnished the details of the posts lying vacant in the Almora Forest Division, Almora. Same is taken on record.

Facts, in nutshell, are that father of the petitioner was working as Resin Muhrir in Almora Forest Division and passed away on 09.10.1987, while he was in service. At that time the petitioner was aged about 8 years and his mother was unable to serve due to ill health, therefore his mother had made representation to respondent no. 3 to consider the appointment of the petitioner when he become major. On 11.07.1988, respondent no. 3 vide his letter dated 11.07.1988 informed the mother of the petitioner that the appointment of the petitioner will be considered, when he attained the age of majority. When the petitioner become major, he made representation to respondent no. 3 for his appointment under dying in harness but his candidature was not considered. Thereafter, petitioner was regularly approaching to the respondent's department for his appointment but to no avail, then the petitioner constrained to file writ petition No. 1869 of 2011 (S/S) Mahesh Chandra Singh vs. State of Uttarakhand and others for his appointment under Dying In Harness Rules. The co-ordinate Bench vide its judgment and order dated 19.02.2018 pleased to disposed of the writ petition and held as follows:-

"Accordingly, the present petition is disposed of with the direction to the respondents to consider the case of petitioner for compassionate appointment within a period of ten weeks from today.

Thereafter, petitioner had made representation to the respondents department, but by order dated 23.04.2018 petitioner has been denied to give appointment in the department by saying that as per the Notification, issued by State of U.P. (applicable to the State of Uttarakhand), the application could be filed within 5 years of the death of the employee.

Learned Senior Counsel appearing for the petitioner would contend that petitioner is approaching to the authority concern for last 15 years for his appointment under Dying In Harness Rules but the authority concern are not taking any action in his case. It is further contended that despite directions issued by this Court, by judgment and order dated 19.02.2018, the respondent has committed illegality in non considering the case of the petitioner.

A counter affidavit has been filed on behalf of respondent no. 2 and 3. In paragraph no. 4 it is stated that application for appointment on compassionate grounds under the Dying In Harness Rules 1974 should be given within a period of 5 years from the date of death of the deceased employee, as according to Rule 5 Clause 3 of the Dying in Harness Rules, 1974 and G.O. No. 6/12/73-ka-2/1993 dated 16.04.1993 of Karmik Anubhag, Govt. of Uttar Pradesh (Dying in Harness Rules 1974 and G.O. No. 6/12/73-ka-2/1993 dated 16.04.1993 is followed in Uttarakhand without any change). Learned counsel for the State would contend that since, petitioner has filed the application after lapse of 5 years, therefore same has rightly been rejected by the respondents.

To this, learned Senior Advocate would contend that this point was not raised by the respondents at the time of deciding the writ petition No. 1869 of 2011 (S/S) by the co-ordinate Bench, therefore, respondents have no authority to raise this plea at this stage. It is further contended petitioner and his mother has regularly made representation to the respondent's department but same has not been considered by the respondents.

Heard learned counsel for the parties and perused the entire material available on record.

Initially, the department has taken the decision that the case of the petitioner shall be considered on tendering his age of majority but his candidature has not been considered; Thereafter, petitioner filed the aforementioned writ petition in the year 2011 which was disposed of by the co-ordinate Bench on 19.02.2018 and the order passed by the co-ordinate Bench has not been challenged, thus, same has attained finality. The version raised by the respondents that application should not be considered after expiry of five years is not tenable, as this ground is not available to the respondents at this stage.

As per the details furnished by learned counsel for the State, 20 posts of Chawkidar, 1 post of Jamadar Orderly and 1 post of Orderly, in toto 22 posts are lying vacant in the office of Regional Forest Officer, Almora Forest Division, Almora.

In view of the above, respondents are directed to give appointment to the petitioner at any of the post within three months from today.

The writ petition stands disposed of accordingly.