IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO.1120(SS) OF 2005 Rajesh Kumer Dubey, S/o Sri Mahesh Chand, R/o 608 Bari Bamanpuri, Bareilly (U.P.) ………..Petitioner. Versus 1. Uttaranchal Power Corporation, through its General Manager. 2. Deputy General Manager, Uttaranchal Power Corporation Electricity Distribution Mandal Rudrapur, Udham Singh Nagar. 3. Executive Engineer Electricity Distribution Division Rudrapur, District-Udham Singh Nagar. ………...Respondents. Datd: 28.02.2006 Hon’ble Rajesh Tandon, J. Heard Sri Arvind Vashistha, Advocate for the petitioner and Standing Counsel for the respondents. By the present write petition, the petitioner has prayed for a write of certiorari quashing the impugned order dated 15.07.2005 passed by the respondents no. 2 and 3. Further prayer has been made for a writ of mandamus commanding the respondents to appoint the petitioner in the department on the compassionate ground under Dying in Harness Rules. Briefly stated, late Sri Mahesh Chandra Dubey was an employee with the respondent no. 3. He died in harness on 08.10.1995 leaving behind his adopted son/petitioner Rajesh Kumar Dubey. He adopted the petitioner on 10.01.1990 and the same was registered with the Sub Registrar Bareilly. After the death of the father of the petitioner, the petitioner is being paid family pension as son of late Sri Mahesh Chandra Dubey. 2 The petitioner moved as application for getting compassionate appointment and his application was replied vide letter dated 03.11.2000 issued by the Executive Engineer, Electric Distribution Division, U.P. Power Corporation Ltd. Rudrapur (Udham Singh Nagar) stating that as the age of the petitioner at present is only 15 years, therefore, he will be considered after the completion of 18 years of age. The said letter is quoted below:- “vkidk fu;qfDr gsrq izkFkZuki= bl dk;kZy; dks izkIr gqvk gSA bl fo"k; esa vkdks voxr djkuk gS fd fu;qfDr ds fy;s vH;FkhZ dh mez fu;qfDr dh frfFk dks 18 o"kZ ls Åij gksuh pkfg;s vkids }kjk izLrqr Mkd izi= ds vk/kkj ij vkidh tUe frfFk 15-5-1985 gS bl ds vuqlkj vkidh mez vHkh 15 o"kZ gSA vkidh mez 18 o"kZ dh iwrhZ gksus ds mijkUr gh vkids izkFkZuki= ij dk;Zokgh gksuk lEHko gks ldsxh” The petitioner has submitted that he had moved application for getting compassionate appointment, but he has still not been considered. After attaining the majority, immediately the petitioner moved an application for getting compassionate appointment. When nothing was done, the petitioner again moved an application, on which the respondent no. 2 wrote a letter to the respondent no. 3 calling for certain enquiries and it was intimated him that the letter from the General Manager Distribution dated 07.11.2003 has pointed out some short comings in the his application. Thereafter the petitioner completed entire formalities and the documents required by the respondents were duly supplied. When nothing was done on the aforesaid applications, the petitioner again moved an application on 20.08.2004, but 3 no action was taken by the respondents on the said application. Thereafter, the petitioner approached this Hon’ble Court in writ petition No. 546(SS) of 2005 Rajesh Kumar Dubey Vs. Uttaranchal Power Corporation through Chairman & Managing Director and others. The respondents no. 2 and 3 were directed to decided the representation of the petitioner within a period of 30 days form the date of receipt of the copy of the order. The copy of the aforesaid order was served upon the respondent on 18.06.2005 and pursuant to that, the respondent nos. 2 and 3 decided the representation on 15.07.2005 against the petitioner to the following effect:- “ekuuh; mPp U;k;ky; }kjk fn;s x;s vkns’k fnukad 9- 06-05 ij fopkj foe’kZ fd;k x;kA ekuuh; U;k;ky; }kjk izfroknh 2 o 3 dks oknh Jh jkts’k dqekj nqcs ds lsok;kstu lEcU/kh fnukad 20-08-04 dk izfrosnu tks fd muds }kjk funs’kd ¼ek0la0½ mikdkfy] nsgjknwu dks izLrqr fd;k gS] ds fuLrkj.k gsrq ,d ekg ds vUnj fuLrkfjr fd;s tkus ds vkns’k fn;s gSaA rRdkyhu mRrjizns’k jkT; fo|qr ifj"kn esa rSukr Jh egs’k pUnz nqcs Jfed dh e`R;q fnukad 8-10-95 dks gqbZA e`rd vkfJr Jh jkts’k dqekj nqcs nRrd iq= Lo0 egs’k pUnz nqcs }kjk lsok;kstu gsrq fof/kor vkonsu fnukad 17-05-03 dks vf/k’kklh vfHk;Urk] fo+|qr forj.k [k.M :nziqj dks izLrqr fd;k x;k] ftls vqeksnu gsrq mi egkizcU/kd] fo|qr forj.k e.My ds ek/;e ls egkizca/kd ¼forj.k½ gY}kuh dks izsf"kr fd;k x;kA e`rd vkfJr lsok fu;ekoyh 1975 ds prqFkZ la’kks/ku 1998 esa fufnZ"V izko/kkukuqlkj deZpkjh dh e`R;q ikap o"kZ ds vUnj Eligible vH;FkhZ }kjk lsok;kstu gsrq vkosnu djuk vfuok;Z gSA fu;ekoyh la’kks/ku esa fufnZ"V izko/kku fuEukuqlkj gSA That the person 4 (i) “Fulfills the educational qualifications prescribed for the post; (ii) is otherwise qualified for board’s service and (iii) makes the application for employment within 5 years form the date of the death of Board’s servant.” The grievance of the petitioner is that he moved the application for compassionate appointment within time, but the department had taken time in considering the application within reasonable time, therefore, there is no fault of the petitioner. A counter affidavit has been filed in the present case, where in paragraph 5, it has been admitted that the petitioner was minor and not eligible for appointment and as such the petitioner cannot take benefit of the application which was moved during the period, when he was minor and the petitioner became major after 15.05.2003 and the application was submitted by him after a period of five years from the date of the death of his father. From the perusal of the document filed in the writ petition, it appears that the petitioner had moved application well within time and the delay was on the part of the department not on the part of the petitioner. In Santosh Kumar Mishra Vs. State of U.P [(2002)1 UPLBEC 337.It has been held as under :- “Learned counsel for the petitioner has placed reliance upon the case of Raj Narain Prasad (Supra), for stressing his submission that the petitioner’s father would be deemed to have been a regular Government servant in view of the fact that his appointment has been converted into work charge employee in pursuance of the scheme approved by the Apex Court. He further submitted that in view of the decision 5 rendered in the case if Smt. Pushp Lata Dixit Vs. Madhyamik Shiksha Parishad and others, reported in 1991(18) ALR 591,the petitioner is entitled for getting the appointment. In this case, the husband of Smt. Pushp Lata was working as a Paid Apprentice. The plea that he was not a regular employee although he had been working in the department for the last 17 years was not a entitled for appointment under Dying in Harness Rule was rejected by the Court and the directions were issued to accommodate the petitioner (Smt. Pushp Lata) according to her qualifications relying upon this case, the writ petition filed by Smt. Maya Devi Vs State of U.P. and others, reported in 1998 (79) FLR 608, was also allowed in which the High Court found that the petitioner’s husband in that case has satisfactorily worked for about 10 years until his death and though he may be a daily wager, the petitioner can be accommodated on compassionate grounds under Dying in Harness Rules. In the case of Smt. Saroj Devi Vs. State of U. P. And others, reported in 1999 (3) ESC 2187(All): 1 UPLBEC (Alld.) (Sum) 15, the benefit was given to the temporary appointee as he was working against a substantive vacancy.” “ The Apex Court was considering the scheme and the status of a work-charge employee even after being confirmed it has been held that a work charge employee after confirmation does not cease to be a work charge employee and he continues to be a work charge employee. The question of regularization against a regular vacancy was not in issue before the Apex Court. No rule, law of any Government order has been brought 6 to the notice of this Court by the State to indicate that any terminal benefits have been provided to the work charge employee who have to their credit a considerable period of service and even in cases after very longer period of service, they retire as such. Even no provision for confirmation of a work charge employee as a work charge employee is available in the State of Uttar Pradesh nor any such provision has been shown by the learned State Counsel despite being specifically asked for.” “It may also be taken note of that if daily wager or a work charge employee is engaged against a particular duty or post, and that work is of perennial nature, the presumption would be that such an employee would be entitled for being treated to have been continuing against a regular vacancy.” Since the father of the petitioner expired in the year, 1995, it is desirable in the interest of justice that the matter of compassionate appointment should have been considered without any delay in view of the Judgment of Smt. Sushma Gosai and others Vs Union of India and others, 1989 (4) SCC 468. In the case of Smt. Sushma Gosai and others Vs. Union of India and others, 1989(4) SCC, 468, the Apex Court has held as under:- “We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should therefore, be provided 7 immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant. In the result, we allow the appeal and in reversal of the order of the High Court, we direct respondent no. 2 to appoint Sushma Gosain appellant in the post to which she has already qualified. We further direct that she shall be appointed in an appropriate place in Delhi itself. The appointment shall be made within three weeks from today.” The Apex Court in the case of Umesh Kumar Nagpal Vs State of Haryana (1994) 4 SCC 138 has relied upon the judgment of Sushma Gosain v. Union of India (1989) 4 SCC 468. The relevant observations are quoted below:- “The whole object of granting compassionate employment in thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to; be offered to the eligible member of the family.” “It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the 8 change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” It is well settled that appointment on the compassionate ground is purely humanitarian consideration because of the fact that family will not be able to make both ends meet. The purpose of providing employment to the dependent of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. Thus compassionate appointment is treated to alleviate the distress of the family. In view of the above, a writ of certiorari is issued quashing the order dated 15.07.2005 passed by the respondents no.2 and 3. The matter is sent back to the authority concerned for reconsideration in view of the above said case laws and finding given above, who shall consider the same within a period of four weeks from the date of presentation of the certified copy of this order. Writ petition is disposed of. No order as to costs. (Rajesh Tandon, J.) 28.02.2006 Rathour