Smt. Kamla Devi vs State of U.P. and Others

Devendra Kumar Arora, J.—Heard Sri Mohd. Ali, learned Counsel for the petitioner and Sri R. D. Shahi, learned Counsel appearing on behalf of the State.

By means of the present writ petition, petitioner is seeking a writ of certiorari for quashing of the Order dated 15.6.2006, passed by Divisional Forest Officer, Social Forestry, Division Rae Bareli, contained in Annexure No. 1 to the writ petition. The petitioner has also sought a writ of mandamus commanding the opposite parties to provide her compassionate appointment under Dying in Harness Rules and pay her salary regularly in terms of the judgment & order dated 03.4.2006, affirmed by Division Bench of this Court as well as by Hon''ble Supreme Court in its judgment dated 06.12.2006 and 10.8.2007, respectively.

Submission of learned Counsel for the petitioner is that the husband of the petitioner Late Chhotey Lal was under the employment of the opposite parties on the post of Mali (Group ''D'' post) on daily wage basis. He worked w.e.f. March, 1998 to 16.5.2004 and he died during the course of his employment, leaving behind the petitioner (wife) and two minor children.

After death of Sri Chhotey Lal, the petitioner being dependent (wife) made an application on 02.8.2004 before the Divisional Forest Officer, Social Forestry, Rae Bareli Division (Opposite Party No. 3) for compassionate appointment under the provisions of U. P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974. The request of the petitioner was rejected vide Order dated 3rd August, 2004 by the opposite party No. 3 on the ground that Group ''D'' Services Regularisation Rules, 2001 do not provide any provision for compassionate appointment to the dependent of the employee working in the minimum of the pay-scale.

The petitioner, feeling aggrieved against the rejection order dated 3rd August, 2004, preferred a Writ Petition No. 1279 (SS) of 2005, Smt. Kamla Devi v. State of U.P. and Ors. before this Court, stating therein that her husband Late Chhotey Lal was serving in the Forest Department as class IV post on daily wage basis and inspite of rendering about sixteen years'' continuous and uninterrupted service, he was not regularized whereas several persons junior to him had been reguarlised. After exchange of affidavits the writ petition was allowed by means of the judgment & order dated 3rd April, 2006 and the order rejecting the candidature of the petitioner for compassionate appointment was quashed. The opposite parties were directed to consider the case of petitioner for compassionate appointment in light of the observations made in the judgment within a period of two months from the date of production of certified copy of the order.

Against the said judgment & order dated 3rd April, 2006 the State Authorities filed Special Appeal No. 474 of 2006, State of U.P. and Ors. v. Smt. Kamla Devi before Division Bench of this Court and the said special appeal was dismissed vide judgment & order dated 06.12.2006.

The State Authorities preferred SLP No. CC-6778 of 2007 before the Hon''ble Supreme Court which was dismissed vide judgment & order dated 10.8.2007 with the observation that question of law is left open and this may not be treated as a precedent. The petitioner, in the meantime, against the non-compliance of the judgment & order dated 3rd April, 2006 initiated contempt proceedings vide Crl. Misc. Case No. 1517 (c) of 2006 and in the said proceedings a supplementary counter affidavit was filed mentioning therein that in compliance of the order of this Court, case of the petitioner has been re-considered and disposed of vide order dated 15.6.2006 (impugned order) and, hence, the contempt proceedings were dropped vide order dated 18.4.2008.

Learned Counsel for the petitioner vehemently submitted that the supplementary affidavit was filed on 17th April, 2008 before the Hon''ble Contempt Judge stating therein that case of the petitioner has been re-considered and disposed of vide order dated 15.6.2006, whereas the special appeal No. 474 (SB) of 2006 assailing the judgment and order dated 03.4.2006 was filed on 07.08.2006 before the Division Bench of this Court but no where in the said special appeal mention was made about the compliance order dated 15.6.2006. Apart from this, in the contempt proceedings, the opposite party No. 3 had also filed two affidavits dated 06.9.2006 and 23.4.2007 for deferring the contempt proceedings but in none of the affidavits the fact about re-consideration of the candidature of the petitioner in compliance of the order of this Court vide order dated 15.6.2006 was disclosed and it was only on 18.4.2008 the order dated 15.6.2006 was filed by the opposite party No. 3 before the Contempt Judge. On this background, learned Counsel for the petitioner submitted that the order dated 15.6.2006 is anti-dated order and if the said order was passed in compliance of the judgment & order dated 03.4.2006 then there was no occasion for the State to file Special Appeal on 07.8.2006 and after dismissal of the same SLP before the Hon''ble Apex Court.

Learned Counsel for the petitioner while assailing the order dated 15.6.2006, submitted that the opposite party No. 3 has not considered and decided the matter in terms of the directions given by this Court vide judgment & order dated 03.4.2006. It is further submitted that the judgment & order of the Hon''ble Single Judge dated 03.4.2006 has been affirmed firstly in special appeal and thereafter by the Hon''ble Apex Court and while declining to interfere with the judgment the Hon''ble Apex Court observed that this may not be treated as a precedent. Therefore, the judgment & order dated 03.4.2006 has attained finality and is binding upon the opposite parties. It is not open for the opposite parties to take a different stand for declining claim of the petitioner.

Learned Counsel for the petitioner also drew attention of the Court towards the pleadings made in para 20 of the rejoinder affidavit in which it has been mentioned that the answering opposite parties filed a counter affidavit, sworn on 23.8.2005, in writ petition No. 1279 (SS) of 2005 and in para 3, it has been stated that "while the deceased husband of the petitioner was found eligible for regularization under the aforesaid Regularisation Rules, 2001, but he could not be regularized and accordingly he was being paid minimum of the pay-scale as per directions of the Hon''ble Apex Court in the case of State of U. P. and Ors. v. Putti Lal and Ors." and stated that it is admitted position that husband of the petitioner was fully eligible for regularization of his services as his name was shown at serial No. 4 in the list of daily wagers but due to incorrect mention of his date of initial appointment as 1st June, 1991 in place of March, 1988, his services could not be regularized and in the meantime he died on 16.5.2004. It is admitted position that juniors to the husband of the petitioner were regularized. It is further submitted that because of the mistake of the opposite parties, husband of the petitioner could not be regularized in time and before the mistake could have been rectified, he died and, therefore, the petitioner cannot be deprived of compassionate appointment under Dying in Harness Rules on account of non-regularization of the services of the petitioner''s husband and, therefore, the alleged anti-dated impugned order dated 15.6.2006 deserves to be quashed with the direction to the opposite parties to appoint the petitioner on compassionate ground so that the petitioner could be able to take care of her two children and to educate them properly.

Learned Standing Counsel, while opposing the writ petition, submitted that this is second writ petition whereas earlier writ petition No. 1279(SS) of 2005 was decided on 03.4.2006 and in compliance of the said order dated 03.4.2006 the petitioner''s candidature was re-considered and the same was rejected vide order dated 15.6.2006. It is also submitted that in the Rules there is no provision to provide appointment to the dependent of the deceased who was a daily wager working on minimum of the pay-scale. Learned Standing Counsel also submitted that the Hon''ble Contempt Judge considered the compliance of the order dated 03.4.2006 and dismissed the contempt petition, filed by the petitioner. It is also submitted by learned Standing Counsel that whether a dependent of a deceased daily wager or a work-charge employee is entitled to get an appointment on compassionate ground, is pending consideration before the larger Bench in pursuance of the order dated 09.3.2005, passed in Writ Petition No. 15505 of 2005. However, this being second writ petition on the same subject matter, is not maintainable. Learned Standing Counsel also submitted that husband of the petitioner was not found eligible for regularization of his services and, therefore, he was paid minimum of the pay scale admissible to the employees of Group ''D'' category. The deceased Chhote Lal was not a "Government Servant", as per Rule 2 (a) of the Rules, 1974 at the time of death, as he died as a daily wager and, therefore, petitioner could not be given appointment under the Rules, 1974. As such, present writ petition is misconceived, devoid of merits and deserves to be dismissed with costs.

I have considered the arguments of learned Counsel for the parties and gone through the record of the writ petition.

The candidature of the petitioner was rejected vide order dated 3rd August, 2004 on the ground that in Group ''D'' Regularisation Rules, 2001 there is no provision for giving appointment to the dependent of the employees working on minimum of the regular pay-scale. The said order was challenged by means of filing Writ Petition No. 1279 (SS) of 2005. This Court, while appreciating the fact that the husband of the petitioner could not be regularized due to wrong mention of his initial date of appointment in the list of daily wagers, although his juniors were regularized under Rules, 2001 and after taking into consideration the judgment reported in Santosh Kumar Mishra Vs. State of U.P. and Others, . and another judgment reported in 2004 (22) LCD 1583 Prem _Prakash v. State of U.P. and Ors. quashed the order dated 03.8.2004 and directed the opposite parties to re-consider the case of the petitioner for compassionate appointment in light of the observations made in the judgment and the judgments referred therein, within period of two month from the date of production of certified copy of the order.

The petitioner, in para 20 of the Rejoinder Affidavit, specifically mentioned that in para 3 of counter affidavit, sworn on 23.8.2005, filed by the opposite parties in earlier writ petition No. 1279 (SS) of 2005 it has been averred,"while the deceased husband of the petitioner was found eligible for regularization under the aforesaid Regularization Rules, 2001 but he could not be regularised and accordingly he was being paid minimum of the pay-scale as per directions of Hon''ble Apex Court in the case of State of U.P. v. Putti Lal and Ors." The averments of this para have not been denied by the answering respondents whereas in para 3 (viii) of the counter affidavit it has been mentioned that as per Rule 4 (I) (a) the persons who were engaged on daily wage basis on or before 29.6.1991 and had continued as such on the date of commencement of the said Rules, will be considered for their regularization and shall be given regular appointment on the basis of their eligibility, suitability and seniority only against the existing vacancies. It is further stated that the petitioner''s husband, late Chhote Lal was not found eligible for his regularization whereas as per the averments quoted in para 20 of the Counter Affidavit dated 23.8.2005 filed in writ petition No. 1279 (S/S) of 2005 the answering opposite parties accepted the eligibility of the petitioner and from perusal of the judgment and order dated 03.04.2006 it is admitted position that the name of Late Chhote Lal was at serial No. 4 and, admittedly, the persons junior to him have been regularized. There is no averment in counter affidavit that he was not found suitable rather there is a contrary stand of the answering opposite parties that he was not eligible. So far as his seniority is concerned, it is undisputed that name of Late Chhotey Lal is at serial No. 4 in the seniority list and it is also undisputed that the services of the persons junior to him have been regularized. Apparently, it appears to be a case of non consideration of the candidature of Late Chhote Lal, on account of incorrect mention of his initial date of appointment as 01.06.1991 in place of March 1988. Now, it is not open for the answering opposite parties to consider this issue after the judgment & order dated 03.04.2006, passed in writ petition No. 1279 (S/S) of 2005 which was affirmed by the Division Bench in special appeal No. 474 (S/B) of 2006 and subsequently Hon''ble Apex Court while dismissing S.L.P of the State, left the question of law open with the observation that the same may not be treated as precedent, and after this, it was not open for the answering opposite parties to go into question of non regularization of Late Chhotey Lal and it was incumbent upon the answering opposite parties to re-consider and pass the orders as per directions given by this Court in writ petition No. 1279 (S/S) of 2005 and while reconsidering the issue the concerned opposite parties were also required to look into the judgments refereed in the judgment and order dated 03.04.2006. From perusal of the impugned order, it is evident that the opposite party No. 3 has not considered the judgment and order passed by this Court dated 03.04.2006 in its later and spirit, rather it is a case of non compliance of the said judgment and order by the concerned authorities.

From pleadings of the writ petition, it is evident that the answering respondents filed a special appeal No. 474 of 2006 on 07.8.2006 and the same was dismissed on 06.12.2006 with the following observations:

The writ-petitioner submits that non-regularization or refusal of regularization was because and only because of a wrong date of first joining which was taken by the State Authority as 1st June, 1991 whereas it should have been taken to be March, 1988 as certified 1991 by a Forest Range Officer. The State Authorities submit that the refusal of regularization was not because of the joining date but because of a finding of unfitness. The detailed records are not there. It is impossible to pronounce upon the appropriateness of the regularization or refusal of regularization after the employee has died. The point however, remains that if the regularization had been wrongly refused, then and in that event the compassionate appointment could not be refused.

At this distance of time, the writ court can hardly enter into the facts but we are not a writ court; we are of only the court of appeal. We can interfere with the discretion used by the first Hon''ble Judge if and only if we can find misdirection of law or on a point of fact. At this stage, we are unable to find any such misdirection on the basis of pleadings and arguments. His Lordship has found the date factor of joining to be more material and, thus, leaned in favour of the compassionate appointment. We cannot substitute a different decision of ours in the court of appeal as that is not the final finding of this appellate court.

The answering respondent further filed SLP before the Hon''ble Apex Court, which was dismissed vide judgment & order dated 10.8.2007, leaving the question of law open with the further observation that this may not be treated as precedent.

The record further shows that in the contempt proceedings three affidavits were filed on different dates i. e. on 06.9.2006, 23.4.2007 and on 17.4.2008 and it is for the first time in the affidavit dated 17.4.2008 the answering opposite parties mentioned about the order dated 15.6.2006 (impugned order) by which candidature of the petitioner is said to have been considered in compliance of the judgment & order dated 03.4.2006, passed in Writ Petition No. 1279 of 2005 and the same was rejected. In reply to the pleadings of para 10 of the writ petition, in para 12 of the counter affidavit it has been mentioned that "the fact of the order dated 15.6.2006 was not disclosed in earlier affidavits due to inadvertence and there was no intention, as alleged...." It is very surprising that the answering opposite parties neither in special appeal before the Division Bench of this Court nor in SLP before the Hon''ble Supreme Court disclosed the fact about the order passed by them in compliance of the judgment & order dated 03.4.2006, passed in W.P. No. 1279 (SS) of 2005. Admittedly, in supplementary affidavit dated 12.4.2008, for the first time, the fact of re-consideration of the candidature of the petitioner was disclosed before the Hon''ble Contempt Judge and on the basis of the same the contempt proceedings were dropped vide order dated 18.4.2008.

This Court fails to appreciate this fact that when the answering opposite parties had already passed an order dated 15.06.2006 in compliance of the judgment & order dated 03.4.2006, passed in W.P. No. 1279 (SS) of 2005 then what was the occasion for them to approach the Division Bench of this Court on 07.8.2006 in special appeal and after dismissal of the special appeal on 06.12.2006 again to Hon''ble Apex Court challenging the said order. The record further shows that the respondent has also filed Review Application before the Hon''ble Apex Court on 28.2.2008 and in this background the order dated 15.6.2006 appears to be anti-dated and may have been made in order to come out from the clutches of the contempt proceedings. Para 10 of the writ petition also discloses the fact that the order dated 15.6.2006 was never served upon the petitioner by any mode and it was only on 18.4.2008 when the contempt case was fixed for appearance and framing of charge, the order dated 15.6.2006 was served along with the supplementary counter affidavit dated 17.4.2008.

In this case, the peculiar fact is that the first order dated 03.08.2004, was passed by Sri Lalit Verma, Divisional Director, Social Forestry Division Rae Bareli, rejecting the claim of the petitioner on the ground that in Group-D Service Regularization Rules, 2001 there is no provision for making appointment on compassionate ground to the dependent of the deceased employee working in the minimum of the pay scale. Subsequently, the same officer passed order dated 15.06.2006 rejecting the claim of petitioner on the ground that there is no provision under the U.P. Government Dying in Harness Rules for making appointment of the dependents of the persons working on minimum of pay scale and the same officer filed supplementary counter affidavit before the Hon''ble contempt judge stating the fact of filing special appeal, S.L.P and review application before the Hon,ble Apex Court and in the last it was stated that case of the petitioner was considered and disposed of vide orders dated 15.06.2006. The same officer has also filed counter affidavit in the instant writ petition and stated in para 12 that the order dated 15.06.2006 was not disclosed in earlier affidavits due to inadvertence. It is also note-worthy that no material was brought on record to show that the candidature of the petitioner''s husband was considered and was not found suitable.

In view of the aforesaid discussion, I am of the considered view that the order dated 15.6.2006 appears to be anti-dated order and if such order was passed on 15.6.2006 then there was no occasion for filing special appeal on 07.8.2006 and after its dismissal SLP before the Hon''ble Apex Court and after dismissal of the same review application on 28.2.2008.

From the sequence of the events, this Court fails to appreciate that if in compliance of the judgment & order dated 03.4.2006 passed in Writ Petition No. 1279 (SS) of 2005, the Divisional Forest Officer/Director, Social Forestry, Division Rae Bareli passed the order dated 15.6.2006, then where was the occasion for the Department to file special appeal on 07.8.2006 and after its dismissal SLP & Review Application before the Hon''ble Supreme Court and for what purposes money has been spent towards filing of the special appeal before the Division Bench and thereafter SLP and Review Application before the Hon''ble Apex Court and in this background this Court feels that the matter deserves to be investigated.

Accordingly, Chief Secretary of the State Government is hereby directed to inquire as to under what circumstances after passing of the order dated 15.6.2006 by the Divisional Forest Officer/Director, Social Forestry, Division Rae Bareli, special appeal, SLP and Review Application were filed and what amount of expenditure incurred from the State exchequer alongwith Travel and other expenses of the Parokar of the Department in filing the said appeals. After fixing the responsibility, the same be recovered from the concerned responsible officers/officials and if it is found that the said order is an anti-dated order, then appropriate proceedings be also drawn under the relevant Rules against such officer who passed the order dated 15.6.2006 and also inform this Court by filing an affidavit about the action so taken against such persons within 6 weeks.

The opposite parties were required to consider the case of petitioner for compassionate appointment in light of the observations made in the judgment & order dated 03.4.2006 and the judgments referred therein, but a perusal of the impugned order does not reveal any consideration, as directed and, therefore, this Court has left with no option but to quash the order dated 15.6.2006.

Accordingly, a writ in the nature of certiorari is issued thereby quashing the order dated 15.6.2006, passed by Divisional Forest Officer, Social Forestry, Division Rae Bareli, contained in Annexure No. 1 to the writ petition. A writ in the nature of mandamus is also issued thereby directing the opposite parties to re-consider the candidature of the petitioner for her compassionate appointment, as directed vide judgment & order dated 03.4.2006, afresh within period of two weeks from the date of production of certified copy of this order.

Writ Petition is allowed with cost of Rs. 10,000/-. which shall be deposited with the Mediation and Conciliation Centre, Lucknow.

The Registrar of this Court is directed to transmit a copy of this Judgment & Order to the Chief Secretary, Government of U. P. for information and compliance.