Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1948 of 2003 (S/S) Amit Kumar S/O Late Sri Dheer Singh, R/O Village Machki, P.O.- Bahadurpur, District Bijnor. …… Petitioner. Versus Uttaranchal Transport Corporation Dehradun, through its Chairman and another. … Respondents. Sri J.C.Pandey, learned counsel for the petitioner. Sri Ashish Joshi, learned counsel for the respondents. Date January 09, 2009. Hon’ble B.S.Verma, J. This writ petition has been filed for the following reliefs:- A- To issue an order or direction or a writ of certiorari quashing the impugned order dated 22.11.2003 (Annexure No. 8) and impugned order dated 27.11.2003 (Annexure No.9) passed by the respondent no.2 and further direct the respondent no.2 to modify its order dated 27.11.2003 by providing a regular employment to the petitioner. B- To issue an order or direction or a writ of mandamus directing the respondent no. 2 to provide a regular employment to the petitioner for his family benefit in place of his deceased father under regulation 77 of U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulation 1981 (for short Service Regulations) in place of the offer made by the respondent no. 2 in his order dated 27.11.2003. C- To issue an order or a direction or a writ of mandamus granting any other relief this Hon’ble Court may deem fit and proper under the circumstances of the case. Relevant facts, giving rise to the writ petition, in brief are that the father of the petitioner, deceased Dheer Singh, was 2 employed as welder cleaner in the Kotdwar Depot of the respondents since 1989 who died on 12-11-1995 in harness and he left behind him four minor children besides his widow. According to the petitioner, on the death of his father, there was none to earn bread for the family. Hence his mother Viro Devi applied for employment to respondent no.2 on 20-12-1995 as all the four children were minor. In paragraph no.4, it has been stated that for the reasons best known to the respondents, no action was taken on the application of the mother of the petitioner. A copy of which has been annexed as Annexure No. 1 to the writ petition. Though the mother of the petitioner was not given appointment, but she had been assured by the department that as and when her elder son attains majority, he will be appointed. The mother of the petitioner made another application on 11-6-2001 when the petitioner completed 18 years of age and requested the respondent no.2 to provide employment to her son as per regulation. Copy of the application dated 11-6-2001 is annexed as Annexure No.2 to the writ petition. The Assistant Regional Manager Kotdwar as per direction dated 8-2-2002 sent all desired information and particulars regarding the deceased to respondent no.2 by his letter dated 20-2-2002. The respondent no.2 kept the application pending till 4-1-2003 and ultimately rejected the same on the ground that the application was made after five years of the death of deceased employee. The order of rejection dated 4-1-2003 has been annexed as Annexure No. 4 to the writ petition. According to the petitioner, this order was passed without application of mind. Aggrieved, the petitioner filed Writ Petition No. 12059 of 2003 Amit Kumar Vs. Managing Director, U.P.S.R.T.C. Lucknow and another, which was ultimately allowed by the Allahabad High Court by order dated 11-9-2003. The order was passed to the following effect:- 3 “As a result of foregoing discussion, the writ petition is allowed. In consequence, the impugned order dated 04.01.2003 is quashed and the respondents are called upon to consider the application of the petitioner for compassionate appointment and pass appropriate order within a period of two months from the date of presentation of a certified copy of this order.” The petitioner along with his application presented the order dated 11-09-2003 before the Regional Manager, UPSRTC Dehradun on 23-09-2003 vide Annexure No. 7. The Regional Manager again rejected the representation/application of the petitioner by his order dated 22.11.2003. The order of rejection dated 22.11.2003 was communicated to the petitioner on 6/7- 12.2003. However, by order dated 27-11-2003, the respondent no.2 issued a letter to the petitioner offering the work of conductor on contract basis against a purely temporary post, which is contrary to the para 77 of the Service Regulations. The appointment under the Dying in Harness Rules has to be made on a permanent post of regular nature and in no case, the appointment can be made on temporary post of contract basis. According to the petitioner, a large number of vacancies are available for the post of conductor in the Uttaranchal Transport Corporation, hence offer of a temporary duty on contract basis is not the compliance of the order passed by the High Court of Allahabad because the employees on contract basis are not the employees of the State Road Transport Corporation. If the petitioner accepts the offer of employment on contract basis, his valid claim to a regular/permanent post would be taken away to which he is entitled as per Para 77 of the Service Regulations. Hence this writ petition. On behalf of the respondents, counter affidavit has been filed. The affidavit was duly sworn in by Sri S.C.Joshi, the then Assistant Law Officer of the respondent-department. It is 4 pertinent to mention that the contents of paragraph nos. 1, 2, 3 and 4 of the writ petition have not been denied. It has been stated in paragraph no. 2 of the counter affidavit “That the contents of para 1, 2, 3 and 4 of the writ petition need no comments.” The contention of the petitioner that the mother had applied for employment by her application dated 20-12-1995 remained uncontroverted. In paragraph no. 5, it has been stated that the application of the petitioner was rightly rejected by the competent authority on the ground that the same was given after five years of the death of the deceased father the same being time barred. Along with the counter affidavit, two annexures namely CA-1 and CA-2 have been filed. Annexure CA-1 purports to be a copy of Circular dated 20-6-2002 issued by the U.P.S.R.T.C. Headquarter Lucknow wherein directions have been given to give contractual appointment on the post of drivers/conductors to the dependents of dying in harness employees, who had not been appointed. Annexure CA-2 is a copy of the Circular issued by the Uttranchal Transport Corporation Dehradun on 25-11-2003 on the same line. Rejoinder Affidavit has been filed on behalf of the petitioner. In paragraph no. 5, which is in reply of paragraph no. 3 of the counter affidavit, it has been stated that since the mother of the deponent is an illiterate widow she easily came in to the confidence of the respondents and she had not strongly pressed her application dated 20-12-1995 and as soon as the deponent became major, she moved an application on 11-6-2001 to give appointment to the petitioner on compassionate ground. It has also been stated that the order of rejection of application of the petitioner on the ground of delay was not accepted by the Allahabad High Court vide order dated 12-9-2003, therefore, in view of the order dated 12-9- 2003, it was not open to the respondents to reject the application of the petitioner on the ground of delay again. To sum up, the 5 averments made in the memo of petition have been reiterated in the rejoinder affidavit. I have heard learned counsel for the parties and perused the averments made in the writ petition, counter affidavit and the rejoinder affidavit. At the outset, it may be mentioned that the application moved on behalf of the petitioner for appointment dated 11-06- 2001 has already been held to be within time by the Allahabad High Court in the order dated11-09-2003, hence there is no need to reiterate the same thing here again. The short controversy involved in this petition is whether the petitioner is entitled to appointment on compassionate ground against a regular post and whether the respondents were justified in offering contractual appointment to the petitioner. The undisputed facts of the petition are under:- The father of the petitioner late Dheer Singh was employed as welder cleaner with the respondents, who had died while in service on 20-12-1995. After his death, the mother of the petitioner made an application to the respondent no. 2 on 20-12- 1995, but she was not given appointment under dying in harness rules. Admittedly, the petitioner made an application for appointment under the Dying in Harness Rules read with para 77 of the Service Regulations on 11-06-2001. The application of the petitioner was rejected by respondent no. 2 by order dated 4-1-2003 on the ground of delay. The said order was assailed before the Allahabad High Court in writ petition. The writ petition was allowed on 11-9-2003 and the application of the petitioner was held to be within time and directions were given to the authority concerned to consider the application of the petitioner for compassionate appointment and to pass appropriate order within a period of two months from the date of presentation of certified copy of the order. It is also not disputed that the petitioner filed certified 6 copy of the order before the Regional Manager, UPSRTC Dehradun on 23-9-2003. The application of the petitioner was rejected by the Regional Manager on the ground of delay again by order dated 22-11-2003 and the directions given in the writ petition were not carried out by the respondents. I have perused the impugned order dated 22-11-2003. In this order, the Regional Manager of the respondents has not recorded any finding that the petitioner or his mother does not suffer from any financial crisis on account of death of his father in harness. On the other hand, the Allahabad High Court has already considered all the aspect of the matter and while dealing the impugned order dated 4-1-2003, the following observations were made in the order dated 11-09-2003:- “The application does indicate that the widow had no source of income to fall back upon and he was faced with financial straits. It is also borne out from this application that the eldest son i.e. the petitioner had passed his Intermediate Examination and he may be considered for compassionate appointment. In this perspective, it is clear that the widow had no means to fall back upon and she was faced with financial straits in supporting and sustaining the family consisting of herself and four children. It is not indicated in the order that the widow had sufficient means or was in affluent circumstances and in the circumstances, it is difficult to visualize that her financial condition was not such as to warrant action by means of the impugned order. In my considered view, the grounds urged were quite cogent and convincing and in the circumstances, the order impugned cannot be sustained.” The order dated 11-09-2003 passed by the Allahabad High Court has not been assailed by the respondents and the same appears to have attained finality. As mentioned above, the application for compassionate appointment was made by the widow of the 7 deceased first time as far back as 20-12-1995. In view of the specific observations made by the Allahabad High Court now it does not lie in the mouth of the respondents to say that the application by the petitioner had been made at belated stage. It is not disputed that the Para No. 77 of the Service Regulations is applicable to the case of the petitioner, which reads as under:- “77. In the event of death or permanent disability of an employee while in service his son or any other member of his family dependent on him may be appointed on the post in the service for which he possesses the prescribed qualification. The procedure for recruitment contained in these Regulations will not be applicable in his case, if necessary the age limit and academic qualifications may also be relaxed.” This para/regulation does not speak of any temporary appointment what to say of appointment on contract basis. On the other hand, it is provided that if necessary, the age limit and academic qualifications may be relaxed in the case of compassionate appointment. So far as the offer of contractual appointment on the post of conductor by the respondents is concerned, I am of the considered view that appointment on compassionate ground under Dying-in-Harness category read with Para/Regulation No. 77 of the Service Regulations has to be made against a regular/permanent vacancy and in no case on contract basis. I am fortified in my view by the Division Bench judgment of the Allahabad High Court in the case of Ravi Karan Singh Vs. State of U.P. and others [(1999) 3 UPLBEC 2263], wherein it was held that “in our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rule because such appointment is intended to provide 8 immediate relief to the family on the sudden death of the bread- earner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment.” It is pertinent to mention that at the time of death of deceased employee Dheer Singh on 12-11-1995, there were four minor children besides the widow of the deceased. It is not disputed that the deceased was the only bread earner in the family. It can very well be visualized that the entire family of deceased cleaner/welder Dheer Singh had been put under financial straits. From a perusal of record it comes out that the petitioner attained majority only in the year 2001 and the second time, the mother of the petitioner moved application on 11-6-2001. It is pertinent to note that from the side of the respondents there is no denial that the mother of the petitioner applied for appointment on 20-12-1995. The petitioner had approached the Allahabad High Court earlier in the year 2003 and obtained the order dated 11-9-2003, which attained finality. In that order, there is reference to the financial condition of the petitioner and his family. Even that order could not be materialized for no fault on the part of the petitioner. For what has been stated above, the writ petition deserves to be allowed. The impugned order dated 27-11-2003 passed by the respondent no.2 (copy Annexure No.8) is liable to be quashed. The writ petition is allowed. The impugned order dated 27-11-2003 is quashed. The respondent no.2 shall consider the application dated 23-09-2003 of the petitioner for regular/permanent appointment and pass appropriate orders within a period of two months from the date of presentation of certified copy of this order. Costs easy. ( B.S.Verma, J. ) RCP 9 1