Full Judgment
A. K. Yog, J.
1. One Shyam Bihari Lal Sharma was an employee on Class III post as Village Development Officer alleged to be a civil post of Government of U. P. at Block Bahadarabad, district Haridwar. Unfortunately he died on 9.2.1990 leaving behind him the petitioner(Ajay Kumar Sharma) and three other sons as mentioned in para 4 of the writ petition.
2. In the writ petition, it has been categorically stated that petitioner was given appointment on compassionate ground under relevant Dying in Harness Rules. 1974. which were applicable to the facts of the instant case. This fact has not been disputed by the respondent in the counter-affidavit. A copy of the appointment letter has been filed on 25.5.1990 which has been filed as Annexure-1 to the writ petition. In pursuance of the aforementioned appointment letter, the petitioner joined the post of peon on 7.6.1990, the appointment letter, however, mentioned that appointment of the petitioner was temporary.
3. By the order dated 26.9.1995, filed as Annexure-3 to the petition issued by Block Development Officer, Bahadarabad, district Haridwar indicates that the petitioner was appointed on 7.6.1990 and thereafter he was given benefit of annual increment in salary uninterruptedly. Another order of Jt. Development Commissioner dated 14.1.1997 (Annexure-4) to the writ petition shows that petitioner was sought to be transferred.
4. The aforesaid facts have not been disputed in the counter-affidavit as also admitted to the learned standing counsel. In view of the above it appears that petitioner was treated as temporary employee but he was treated as purely temporary employee. Even otherwise this Court in the decision in 1997 ALJ 834 held that compassionate appointment cannot be for short-term.
5. Needless to mention that appointment in dying-in-harness rules cannot and should not be temporary or ad hoc as it will frustrate the very purpose of the rules, 'namely, to save the family from distress'.
6. Ajay Kumar Sharma (petitioner), son of the deceased employee Shyam Bihari Lal Sharma, has filed this petition challenging the validity of the impugned order oftermination of service dated 7.7.1997 passed by the District Development Officer. Haridwar (Annexure-5) to the writ petition.
7. The impugned order shows that the authority passing the impugned order has relied upon the provision of U. P. Temporary Government Employees (Termination of Service) Rules. 1975. As stated above and not disputed on behalf of the respondent, the impugned order of termination could not be passed under aforesaid Rules in the facts of the instant case inasmuch as of the petitioner is to be treated as permanent. Further, the counter-affidavit (para 8) shows that the termination of the petitioner cannot be justified on the ground that it casts stigma if the 'veil' is lifted and true nature of the termination is being ascertained. It is well-settled now that Court can always X-ray the facts and find out the correct nature of the termination order and if it is found that it is penal in nature, the same cannot be sustained if passed in violation of principles of natural justice or the relevant rules requiring opportunity of hearing or termination is punishment to the delinquent employee.
8. In view of the above, impugned order dated 7.7.1997 (Annexure-5) passed by the respondent No. 3 (District Development Officer, Haridwar) is hereby set-aside, the respondents are directed to ignore the Impugned order as being ab initio, treat the petitioner in service continuously and pay salary as well as arrears as may be due in accordance with law giving benefit of increment, etc. within two months of the receipt of a certified copy of this judgment and continue to pay few salary month by month as is being paid to other similarly stressed employee in the department. It is further made clear that if any person has been appointed on the post held by the petitioner, he shall not be thrown on street and will be adjusted in accordance with law. If there is no post, a supernumerary post shall be sanctioned to safeguard the interest of a person who is not before thisCourt. This order is passed in consonance with the order dated 13.8.1997 passed by this Court on the writ petition which provided that any appointment made on the post held by the petitioner shall be subject to the final result of the writ petition.
9. Petitioner shall be entitled to the salary only with effect from the date of actual joining of the duty in pursuance to this judgment, copy of this Judgment be filed before the concerned authorities within six weeks from today. The question of arrear of salary for absentee period may be considered by the authorities in accordance with law, namely, whether he has been employed gainfully or not during the period in question.
10. The writ petition stands allowed subject to the observations made above. No order as to costs.