Phoolmati vs State of U.P.

Anil Kumar, J.—Heard Sri Vikas Singh, learned counsel for petitioner, learned State counsel and perused the record.

Facts in brief of the present case are that petitioner''s father Sri Rajendra Kumar Verma working as Helper in work charged establishment in Ground Water Department, U.P., Lucknow, died in harness on 19.12.2001. Thereafter the petitioner submitted an applicant for considering her case for appointment under the Dying-in-Harness Rules.

Initially by an order dated 25.05.2006, learned Single Judge of this Court had allowed the writ petition, relevant portion quoted as under:-

Learned counsel for the petitioner has placed reliance on the decision of this Court rendered in the case of Santosh Kumar Mishra versus State of U.P. and others reported in 2202 1 UPLBEC 337, wherein this Court in paragraph 16 and 17 of the judgment has held as under:-

It may also be taken note of that if daily wager or a work charge employee is engaged against a particular duty of post, and that work is of perennial nature, the presumption would be that such an employee would be entitled for being treated to have been continuing against a regular vacancy.

In the instant case, one more redeeming feature in favour of the petitioner is that persons junior to the petitioner''s father who were similarly appointed and were taken on the work charge establishment were regularised against regular vacancies by means of order dated 2.11.1998 but the case of the petitioner''s father was not considered and thus he was deprived the benefit of regularisation. In case, the petitioner''s father had been considered at that time, he would have been regularised before he died on 1.4.1999. Since the petitioner''s father was entitled for regularisation after putting in such a long service and his case has not been considered for regularisation, the petitioner cannot be deprived of giving the appointment on compassionate ground because the opposite parties themselves did not consider the case of the petitioner''s father for regularisation.

He has also placed reliance on one another judgment of this Court rendered in the case of Prem Prakash versus State of U.P. and others reported in 2004 (22) LCD 1583, which is based on the case of Santosh Kumar Mishra (supra).

In view of the law laid down in eh above noted cases, the writ petition is allowed. A writ of mandamus is issued to the opposite parties to consider the case of the petitioner for compassionate appointment in light of the observations made above and the judgment referred to herein-in-above, within a period of two months from the date of production of a certified copy of this order.

Aggrieved by the said facts, the State/official respondents filed an special appeal No. 26 of 2007 (State of U.P. Vs. Phoolmati), disposed of vide order dated 14.03.2011, relevant portion quoted as under:--

Learned counsel for respondent Sri Vikas Singh rightly conceded that contrary to the view taken in the impugned judgment in favour of respondent, a Full Bench of this Court in a judgment reported in 2010 (8) ADJ 664 (FB) (Pawan Kumar Yadav vs. State of U.P. & Others), has held that the dependents of daily wager or work charge employee, not holding any post either substantive or temporary and not appointed in any regular vacancy, even if working for more than 3 years before his death, would not be entitled to get appointment on compassionate ground as they would not fall within the ambit of Rule 2(a) and 5(1) of U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974.

After hearing learned counsel for parties and going through the record, as the petitioner''s father was working as Helper in Ground Water Department, U.P., Lucknow as daily wages employee, So, in view of the law as laid down by the Apex court in the case of G.M. Uttaranchal jal Sansthan Vs. Laxmi Devi, (2009) 2 SCC (L&S) 304 and in the case of Pawan Kumar Yadav Vs. State of U.P. and others, 2011 (1) LBESR 99 All (FB), the relief as claimed by the petitioner for compassionate appointment cannot be granted.

For the foregoing reasons, writ petition lacks merit and is dismissed.

No order as to costs.