Ved Prakash Kala vs State of Uttaranchal and Others

P.C. Verma, J.—By means of this petition the petitioner has prayed for writ of certiorari to quash the impugned order dated 17.09.2002 passed by respondent No. 1 and a writ of mandamus has also been sought to direct the respondents to give the appointment to the petitioner under Dying in Harness Rules keeping in view of the letter dated 18.03.1994 issued by the Director General, Medical & Health, U.P.

Brief facts of the writ petition are that the petitioner''s father late Sri A.P.Kala was posted as Senior Clerk in the office of Chief Medical Officer, Pauri. He died on 28.01.1974 during his service period. After about four months of the death of his father late Sri A.P.Kala, the petitioner born on 05.06.1974. The petitioner has submitted his application to the Additional Director, Medical Health & Family Welfare Garhwal Region, Pauri for appointment under the Dying in Harness Rules for the post of Junior Clerk in the year 1993. The Additional Director referred the matter to Director General, Medical Health and Family Welfare, Lucknow on 17.09.1993 for necessary action. On 18.03.1994 the Additional Director, Medical Health & Welfare, U.P. issued an office order dated 18.03.1994 whereby the Chief Medical Officer, Pauri Garhwal was directed to ensure the appointment of the petitioner on the post of Junior Clerk under intimation to the Directorate. Despite the order dated 18.03.1994 the appointment was not given to the petitioner by the Chief Medical Officer, Pauri Garhwal and thereafter the petitioner approached regularly to the authority concerned and subsequently on 19.10.2001 the Director General, Medical sent a letter to the Secretary, Medical, Uttaranchal recommending the claim of the petitioner for appointment by giving reference of the government Order dated 16.04.1993 pertaining to the relaxation of limitation in moving the application for appointment under Dying in Harness Rules. The Additional Secretary, Medical Uttaranchal rejected the claim of the petitioner by impugned order dated 17.09.2002 on the ground that the petitioner''s father died prior to the enforcement of Dying in Harness Rules, 1974.

The respondents contended that after the creation of State of Uttarakhand the petitioner had submitted an application for appointment under the Dying in Harness Rules on 01.01.2001 before the Health Minister of the State. The Health Minister directed the Director General of Medical Health, Uttarakhand to take action. Consequently the matter was referred for relaxation in appointment by the Director General of Medical Health, Uttarakhand to Secretary, Health, Govt. of Uttarakhand on 18.01.2001. Subsequently on 17.09.2002 the Government of Uttarakhand had rejected the claim referred by the Director General of Medical Health & Welfare, Dehradun because in the instant case delay for the period of about 28 years can not be condoned or relaxed in submitting the application for appointment under the Dying in Harness Rules.

I have heard the learned Counsel for the parties and perused the record.

The only ground of the respondents for rejection of the claim of the petitioner is that delay of about 28 years can not be relaxed. The respondents admitted the case of the petitioner except the delay in filing the application for being considered for appointment. The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 came into force with effect from December 21,1973. The record clearly shows that the petitioner''s father died in harness on 28.01.1974 and the petitioner was born on 5th June, 1974 i.e. after four months of the death of his father. After attaining his majority he had applied for the post of Junior Clerk prior to 17.09.1993 under the Dying in Harness Rules. The Additional Director, Medical, Health and Social Welfare recommended his case to the Director General on 17.09.1993 for being considered for appointment. The Chief Medical Officer was also directed to ensure appointment of the petitioner on the post of Junior Clerk. The Director, Medical, Health and Social Welfare, Uttaranchal has sought for giving relaxation in the time limit for making the application for employment by the petitioner on which the Additional Secretary, Medical, Uttaranchal passed the order impugned rejecting the claim of the petitioner on the ground that it was belated by 28 years. Rule 5 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 contains the provision for recruitment of a member of the family of the deceased who dies in harness which reads as under:

Recruitment of a member of the family of the deceased.- (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-

(i) fulfils the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and

(iii) makes the application for employment within five years from the date of the death of the government servant;

Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.

The proviso appended to Sub rule (1) of Rule (5) of the aforesaid Dying in Harness Rules clearly empowered the State Government /Appointing Authority to condone the delay in cases where the authority is satisfied.

Here in the present case, the delay for not making application by the petitioner within five years was due to underage but immediately after attaining the age for being eligible to be appointed in the government service he moved application. It was sufficient reason to condone the delay. The order rejecting the claim of the petitioner appears unjustified and unreasonable. The State Government / Authority competent to consider the application for appointment in such cases should see that the basic object of insertion of proviso to Rule 5 (1) of Dying in Harness Rules, 1974 is to grant benefit to the claimant. It is beneficial legislation. It should be interpreted literally in favour of the claimant. In catena of cases the Hon''ble Supreme Court has held that a person otherwise entitled to the benefit of a beneficial provision of a statute should not ordinarily be deprived therefrom.

Therefore, the respondent No. 1 is directed to re-consider the matter in the light of observation made above.

With the aforesaid direction/observation, the writ petition is disposed of finally. No order as to costs.