State of Uttarakhand and others vs Rajeev Joshi

Rajiv Sharma, ACJ

In view of the grounds taken for condonation of delay in the Delay Condonation Application supported by an affidavit, the Delay Condonation

Application (CLMA No. 13877 of 2018) is allowed. Delay in filing the Special Appeal is, accordingly, condoned.

This Appeal is directed against the judgment dated 14th June, 2018 rendered by the learned Single Judge in Writ Petition (S/S) No. 528 of 2018.

Key facts necessary for adjudication of this Appeal are that the respondent lost his father on 6th April, 2009. An application was submitted by him

seeking compassionate appointment on 18th June, 2009. The Application was not decided. Respondent filed Writ Petition No. 2855 of 2017. It was

disposed of on 9th October, 2017 with a direction to the Divisional Forest Officer to look into the matter and decide the same within a period of eight

weeks. He rejected the same on 6 th February, 2018. It is in these circumstances that the learned Single Judge allowed the writ petition on 14th June

2018 on the basis of the judgment rendered by this Court in Writ Petition No. 1259 of 2004 (S/S), decided on 31st May, 2010. The operative portion of

the judgment has been reproduced by the learned Single Judge, and we would also reiterate the same:

“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 ‘Rule 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-

(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€​

The respondent’s father has worked continuously with effect from 1981 to 2009. The fact that the respondent’s father has worked for 28

years would suggest that the work was available with the appellants. The appellants should have regularized the services of the father of the

respondent taking into consideration his length of service i.e. with effect from 1981 to 2009.

In State of Uttar Pradesh and others vs. Putti Lal reported in (2006) 9 SCC 337, a direction was issued to regularise the services of the incumbents,

who have continuously worked for ten years.

The State of Uttar Pradesh has also from time to time issued instructions that the incumbents, who have worked on daily wages for more than three

years should be given the status of work charge establishment.

In view of the above discussions, there is no merit in the Appeal and the same is dismissed.