IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.594 of 2011 (S/S) Luxmi Dutt ………..Petitioner Versus State of Uttarkhand and others …….Respondents Shri M.C. Kandpal, Senior Advocate assisted by Shri S.S. Chaudhary, learned counsel for the petitioner. Shri N.P. Sah, learned Standing Counsel for the State/respondents. Dated: 16th December, 2011 Hon’ble V.K. Bist, J. Father of the petitioner was appointed on daily wage basis in Public Works Department in the year 1982. In the month of August 1986, he was engaged in the Work Charge Establishment. The State Government vide Government Order dated 15.10.1997, framed scheme for regularization of the Work Charge employees. This scheme was framed in the light of direction of the Hon’ble Apex Court and the High Court. It was provided in the scheme that such employees, who fulfill the required eligibility and whose work and conduct has been satisfactory and who has completed five years service on 31.03.1997, may be considered for regularization under the scheme. In pursuance of the aforesaid scheme, the father of the petitioner alongwith others was considered for regularization by the duly constituted Selection Committee and after selection on 05.08.1999, an order was passed by the Executive Engineer, Provincial Division, Public Works Department, Nainital, by which 2 the father of the petitioner was appointed in regular establishment in the pay scale of ` 2,550-3,200 w.e.f. 01.08.1999. Thereafter, the order of regularization was cancelled on 20.04.2000. The cancellation order was challenged in the Writ Petition no.1013 of 2003 (S/S). This writ petition was allowed by the Hon’ble Single Judge of this Court on 17.09.2003 and the cancellation order dated 20.04.2000 was set aside. Aggrieved by the said judgment and order, the respondents filed Special Appeal No.65 of 2006. The Special Appeal was allowed on 09.01.2009, but while allowing the Special Appeal, the Division Bench of this Court issued direction to the respondents to consider the case of the father of the petitioner for regularization within a period of three months from that day. In compliance of the judgment and order dated 09.01.2009, the Executive Engineer, Provincial Division, Public Works Department, Nainital, on the basis of the order dated 20.01.2009 issued by the Chief Engineer, Level-I, Public Works Department, Dehradun, passed an order on 31.03.2009 treating the services of the father of the petitioner regularized w.e.f. 01.08.1999. Thus, the father of the petitioner stood regularized w.e.f. 01.08.1999 and became entitled to get all the service benefits from the date of his regularization. The father of the petitioner died on 27.11.2010. After the death of the father of the petitioner, the petitioner submitted an application on 10.12.2010 for compassionate appointment under the Dying-In-Harness Rules. The Executive Engineer, Nainital recommended the case of the petitioner for compassionate appointment and sent the same for approval to the Superintendent Engineer, Second Circle, Public Works Department, Nainital, but the case of the petitioner for compassionate appointment was not considered. Thereafter, the petitioner filed the present writ petition for a direction to the respondent authorities to appoint the petitioner on Class-IV post (Workagent/Beldar) under the Dying-In-Harness Rules. During the pendency of the writ petition, the respondent authorities also wrote a letter to the petitioner asking him to withdraw the writ petition, so that he may be considered for the appointment on daily wage basis. 2. The respondent nos.2 to 6 have filed a counter affidavit. In their counter affidavit, respondent no.2 came up with the case that the father of the petitioner Late Khima Nand was not a regular employee in the Department against the sanctioned post, therefore, the Dying-In-Harness Rules are not applicable in the case of the petitioner. It is further mentioned in the counter affidavit, that Class-IV post has been declared as dying cadre in the Department by the Government Order No.877/XXVII (7) Cha. Kshre./2011 dated 24.03.2011 and no fresh appointment can be made on Class-IV post (Group-D Post). It is also mentioned in the counter affidavit that a Government Order was issued on 07.04.2011, directing the Chief Engineer, Level-I to regularize the services of the Work Charge employees, on the date, when posts fall vacant. Thereafter, on 12.07.2011, an order was passed by the Executive Engineer, Provincial Division, Public Works 4 Department, Nainital, by which the order passed on 31.03.2009, granting benefit of regularization to the father of the petitioner from 01.08.1999, was cancelled. The learned Standing Counsel for the State/ respondents has taken a plea before this Court that since the order of regularization passed on 31.03.2009, regularizing services of the father of the petitioner from 01.08.1999, was cancelled by the subsequent order dated 12.07.2011, the father of the petitioner could not be treated as a regular employee, therefore, the petitioner cannot be granted benefit under the Dying- In-Harness Rules. Learned Standing Counsel for the State/respondents also submitted that the order dated 31.03.2009 in itself is void-ab-initio, as the Executive Engineer, Public Works Department, Nainital regularized the services of the father of the petitioner w.e.f. 01.08.1999 without constituting the Selection Committee for regularization. In support of his submission, the learned Standing Counsel for the State/respondents relied upon the judgment reported in (2009) 7 Supreme Court Cases 205 “General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and others” and submitted that in view of the fact that there were illegalities in the appointment of the father of the petitioner, therefore, the petitioner cannot be considered under Dying-In-Harness Rules. 3. I have considered the submission of the learned counsel for the parties. 4. On 09.01.2009, an order was passed by the Division Bench of this Court in Special Appeal No.65 of 2006, directing the respondents to consider the case of father of the petitioner for regularization within a period of three months. The order was complied within a period of three months i.e. on 31.03.2009 and the father of the petitioner was given regular appointment w.e.f. 01.08.1999. In the meantime, the father of the petitioner died on 27.11.2010. The order of regularization was not cancelled till that date. Therefore, the father of the petitioner was a regular employee in the Public Works Department. The submission of the learned Standing Counsel for the State/respondents that since the order of regularization dated 31.03.2009 was cancelled after the death of the father of the petitioner, the petitioner is not entitled for consideration under the Dying-In- Harness Rules, is misconceived and is rejected. His appointment could not be cancelled after his death. Law does not permit to any authority to pass an order cancelling appointment of a person after his death. Such order is patently an illegal order and is void-ab- initio. As far as the submission of the learned Standing Counsel for the State/respondents is concerned that the Executive Engineer erred by not constituting the Selection Committee and granting the benefit of regularization to the father of the petitioner is concerned, the same is also not correct, in view of the fact that earlier the services of the father of the petitioner was regularized on 01.08.1999 after reference to the Selection Committee. The respondent authorities also acted illegally by not considering the case of the petitioner for compassionate appointment 6 under Dying-In-Harness Rules. The case law cited by the learned Standing Counsel for the State/ respondents is not applicable in the present case as in the present case, the father of the petitioner died prior to the cancellation order dated 20.04.2000. 5. In view of above discussion, the writ petition is allowed. The respondents are directed to consider the claim of the petitioner for appointment on Class-IV post under the Dying-In-Harness Rules. So far prayer of the petitioner in writ petition for payment of gratuity, leave encashment and other benefits payable to the father of the petitioner is concerned, liberty is given to the petitioner to file a representation before the competent authority for the same and such representation of the petitioner shall be considered by the competent authority in accordance with law. 6. Stay application (CLMA No.5939 of 2011) also stands disposed of. (V.K. Bist, J.) Arpan 16.12.2011