Rajeev Joshi @APPELLANT@Hash State Of Uttarakhand And Others

Sharad Kumar Sharma, J

This writ petition is listed today for orders on the delay condonation application, which has been filed by the respondents in support of the counter

affidavit. Reasons for delay has been sufficiently explained, same is condoned. The counter affidavit is taken on record. With the consent of learned

counsel for the parties, the writ petition is taken up today for final disposal.

The short controversy which is being agitated by the petitioner in the instant writ petition is that father of the petitioner was appointed as back as in the

year 1981 as daily wager in Bakhada Range, Lamachaur Haldwani, District Nainital. He continued to work in the said capacity till he met with the sad

demise on 6th April, 2009. After the death of the father, mother of the petitioner immediately moved a representation by way of an application on 18th

June, 2009, before the respondent requesting that the petitioner who is dependent of the deceased Kailash Chandra Joshi may be granted appointment

under the Dying-in-Harness Rules, 1974 (hereinafter referred as the Rules). On the said representation of the mother of the petitioner, the respondent

No. 3 has written to the Principal Conservator Forest, Uttarakhand, Nainital, stating therein that the father of the petitioner who was appointed as daily

wager on 1st November, 1981, had died on 6th April, 2009. The Forest Conservator, while making the recommendation has also observed that the

family of the deceased Kailash Chandra Joshi is suffering financial crisis and, as such, he recommended that the petitioner may be appointed under the

Rules. The said application for appointment under the compassionate ground as filed way back on 18th June, 2009 remained pending till 7th

September, 2015. After considerable long period, when a decision was not taken, a reminder representation was moved by the petitioner reiterating

the prayer that the claim for compassionate appointment may be considered and looking to the pathetic condition of the family of the petitioner, he may

be considered for appointment under the harness rules.

The Conservator of Forest, Western Circle Nainital, vide its letter dated 21st July, 2015, yet again avoided to take any decision and the family

condition of the petitioner further deteriorated, hence, the petitioner filed a writ petition before this Court, being Writ Petition No. 2855 of 2017,

wherein he prayed for mandamus by way of a direction may be issued to the respondents to consider his application for compassionate appointment in

the light of the Rules.

The Coordinate Bench of this Court disposed of the writ petition vide its judgment dated 09.10.2017 with the direction to the Divisional Forest officer

to look into the matter and pass a reasonable order on the pending application of the petitioner within a period of eight weeks from the date of

presentation of certified copy of the order. The contention of the petitioner is that in compliance thereof, the Divisional Forest Officer has passed the

impugned order by virtue of which, the petitioner’s application for compassionate appointment has been rejected by the impugned order dated 6th

February, 2018.

On the scrutiny of the impugned order, the only reason which has been assigned by the Divisional Forest Officer is that the claim of the petitioner for

appointment under the Harness Rules cannot be considered for the reason that his late father was working on a daily wage basis and according to the

analogy which has been assigned by the Divisional Forest Officer, the Harness Rules would not be applicable in relation to those employees who at

the time of death were working on daily wage basis and was not appointed against the substantive post nor was a regular employee. The conclusion

drawn by respondent No. 4 is that under the Harness Rules 1974 and U.K. Adoption Act, 2002, defines government servant as under :-

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Meaning thereby, deceased employees must be permanent or temporary employee against a substantive post or even if the appointment was not

regular must have worked for over three years against substantive post. The conclusion drawn is that the deceased father of the petitioner was not a

regular employee nor has worked for three years on substantive post. This fact that father of the petitioner has worked continuously since 1981 to

2009 about 28 years, this would itself show that the nature of work was perennial in nature and Department had persistent need of the services of the

petitioner.

Having scrutinized the order dated 6th February, 2018 and the reason assigned therein, this court is not satisfied with the reason that the issue stands

squarely covered by the judgment of Coordinate Bench of this Court in Writ Petition No. 1259 of 2004 as decided on 31st May, 2010, wherein, the

Coordinate Bench of this Court while placing reliance on the earlier judgment rendered by the Allahabad High Court as well as this Court held that the

Rules of 1974 would be applicable to those daily wager employee who had worked for a considerable long time with the Department, as such, the writ

petition was allowed. Paragraph No. 3, 4, 5, 6 and 7 of the Writ Petition No. 1259 of 2004 (S/S) reads as under:-

“The respondents have filed a counter affidavit admitting that the petitioner’s father was appointed as a daily wager in the Forest Department

in the year 1983 and also admitted the fact that he died in harness in the year 1998. The respondents, however, has taken a stand that the

petitioner’s father was not a government employee as defined under Rule 2 (a) of the U.P. Recruitment of 2 Dependants of Government Servants

Dying In Harness Rules, 1974 (hereinafter referred to as ‘Rules of 1974’). Consequently, the petitioner was not entitled for being appointed on

compassionate grounds.

Having heard the learned counsel for the parties, the Court finds that the petitioner is entitled for the appropriate relief. For facility, Rule 2 (a) of the

Rules of 1974 is quoted hereunder:-

“2. Definition.-In these rules, unless the context otherwise requires:

(a) “Government servantâ€​ means a Government servant employed in connection with the affairs of Uttar Pradesh who â€

(i) was permanent in such employment; or

(ii) though temporary had been regularly appointed in such employment; or

(iii) though not regularly appointed, had put in three years’ continuous service in regular vacancy in such employment.â€​

A perusal of the aforesaid rules indicates that a Government Servant includes a person who was employed in a permanent capacity or on a temporary

basis being regularly appointed and though not regularly appointed had put in three years of continuous service in a regular vacancy in such

employment.

In Smt. Maya Devi Vs. State of U.P. and others, F.L.R. 1998 (79) 608, it was held that a person working on a daily basis for more than ten years

would come under the category of clause (iii) of Rules 2 (a) of the Rules of 1974, i.e., even though not regularly appointed but had put in three years

of continuous service in a regular vacancy. Similarly, in Bhaguli Devi Vs. State of Uttaranchal in Writ Petition No. 91 (S/S) of 2003, decided on 17th

February, 2005, this Court held that the person working on a daily basis for 16 years amounted to a perennial nature of duty and 3 that there would be

deemed presumption that such an employee would be entitled to have worked in a regular vacancy. Similar view was also held in

Writ Petition No. 1448 of 2004, Prakash Lal Vs. State of Uttaranchal and another, decided on 13th May, 2005.

In view of the aforesaid decisions, the Court finds that admittedly the petitioner’s father had worked on a daily basis continuously for more than 15

years and had died in harness. The fact that the petitioner’s father had worked for 15 years has not been disputed and, therefore, an irresistible

conclusion is drawn that the work which the petitioner’s father was working was the perennial in nature and that he was deemed to be working on

a regular vacancy. The respondents have nowhere stated in their counter affidavit that the petitioner’s father was not working on a regular

vacancy.â€​

Accordingly, this writ petition too would stand allowed. The impugned order dated 6th February, 2018 rejecting the application of the petitioner for

compassionate appointment is quashed. A writ of mandamus is issued to respondent No. 4 to pass an appropriate order granting the petitioner

compassionate appointment under the Rules.

Accordingly, the writ petition stands allowed.

There would be no order as to costs.