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2015 Supreme(All) 3431
ALLAHABAD HIGH COURT
Anil Kumar, J.
Itwari Lal - Appellant
Versus
State of U.P. & Others - Respondent
Service Single No. - 5112 of 2014
Decided On : 18-08-2015
For the Petitioner: Narendra Kumar,Dev Kumar Tripathi
For the Respondent: C.S.C.,Rajiv Singh Chauhan,Shobhit Mohan Shukla
Appointments under the Dying in Harness Rules are permanent in nature, and the provisions of temporary government servant rules do not apply to such appointments.
Headnote:
Compassionate Appointment - Dying in Harness Rules - [Government Order dated 30.1.1996, Dying in Harness Rules] - The court discussed the applicability of the Government Order dated 30.1.1996 and the interpretation of the Dying in Harness Rules in the context of compassionate appointment. The court highlighted the permanent nature of appointments under the Dying in Harness Rules and the inapplicability of the Government Order to such appointments, leading to the setting aside of the impugned order.
Fact of the Case:
The petitioner sought regular appointment/salary under Dying in Harness Rules after being appointed on a consolidated salary. The claim was rejected based on the Government Order dated 30.1.1996.
Finding of the Court:
The court found that the rejection of the petitioner's claim based on the Government Order was void and without jurisdiction, as the order was inapplicable to compassionate appointments under the Dying in Harness Rules.
Issues: The issues revolved around the applicability of the Government Order dated 30.1.1996 to compassionate appointments and the nature of appointments under the Dying in Harness Rules.
Ratio Decidendi: The court held that appointments under the Dying in Harness Rules are permanent in nature and not subject to the provisions of temporary government servant rules, thereby setting aside the impugned order.
Final Decision: The writ petition was allowed, and the impugned order was set aside, with directions for re-examination of the matter in the light of the court's observations.
Anil Kumar, J.
Heard Sri Narendra Kumar, learned counsel for the petitioner, learned Standing Counsel and perused the record.
2. By means of present writ petition , petitioner has challenged the impugned order dated 4.9.2014 passed by opposite party no.3/ District Basic Education Officer, Sitapur.
3. Facts, in brief, of the present case are that petitioner's father Sri Ayodhya Prasad, who was working on the post of Assistant Teacher in Poorva Madhyamik Vidhyalaya, Pakhaniyapur, Post Larkarpur, Block Sakaran District Sitapur died during the tenure of his service .As such the petitioner has moved an application for compassionate appointment under Dying in Harness Rules.
4. By order dated 4.9.1997 passed by the competent authority , petitioner was appointed on class IV post on consolidated salary and posted in Poorva Madhyamik Vidhyalay, Pakhaniyapur, Sitapur. After joining his service he raised a grievance on the ground that there is no justification or reason to appoint him on consolidated salary as he is entitled for regular appointment/ salary.When no heed paid, approached this Court by filing writ Petition No.1707 (SS) of 2014 ( Itwari Lal Vs. State of U.P. and others) , disposed of by means of order dated 14.3.2014 with the following directions: -
"In view of the above, with the consent of parties' counsel and without entering into the merits of the case, the writ petition is finally disposed of with the direction to the opposite party no. 3-Basic Education Officer, Sitapur to consider and decide the representation of the petitioner dated 17.2.2014, contained in Annexure-5 to the writ petition by passing a speaking and reasoned order, in accordance with law, within a period of one month from the date of production of a certified copy of this order and communicate the result of the same to the petitioner."
5. Thereafter the case of the petitioner was considered and rejected vide order dated 4.9.2014 ( Annexure no.1) passed by opposite party no.3/ District Basic Education Officer, Sitapur taking into consideration the Government Order dated 30.1.1996 issued by Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad .
6. Learned counsel for the petitioner while challenging the impugned order submits that the action on the part of opposite party no.3 thereby rejecting the case of the petitioner in view of the Government Order dated 30.1.1996 issued by Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad is contrary to law as laid down by Division Bench of this Court in the case of Ravi Karan Singh Vs. State of U.P. And others ( 1999) 3 UPLBEC 2263, and the Government order dated 30.1.1996 is not applicable in the case of the petitioner so he is entitled for regular appointment/salary on the post in question .
7. Sri Shobhit Mohan Shukla, learned counsel appearing on behalf of opposite parties submits that the Government Order dated 30.1.1996 states that the employees who are appointed in rural as well as in urban area can only be absorbed when the seat will become vacant. As there was no post of class IV employee in the Poorva Madhyamik Vidhyalaya , the petitioner was appointed on fixed salary of Rs.750/-. Therefore, the claim of the petitioner has been considered and rejected in view of the Government Order dated 30.1.1996 and the 7.5.2013. The Government order dated 30.1.1996 specifically provides that the regular pay scale will be provided from the date of absorption.
8. The sole basis of passing of the impugned order dated 4.9.2014 is Government Order dated 30.1.1996 issued by Secretary, Uttar Pradesh Basic Shiksha Parishad, Allahabad. The relevant portion of the said is quoted as under: -
--Hindi-
9. The Government Order dated 30.1.1996 is not applicable in case of the persons who were appointed on compassionate ground under Dying in Harness Rules, so the action on the part of opposite party no.3 thereby rejecting the claim of the petitioner vide order dated 4.9.2014 in view of Government Order dated 30.1.1
