Bithoori Lal Vs. State of U.P. and Others

Bithoori Lal vs State of U.P. and Others

Type Court Judgment Court Allahabad Decided Aug 02, 2000

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Citation: sooperkanoon.com/483219
Court: Allahabad High Court
Judge: A.K. Yog, J.
Decided On: Aug 02, 2000
Case Number: C.M.W.P. No. 1265 of 1993
Subject: Service

Case Summary

AI-generated summary - not the official court judgment text.

Service - procedure for appointment - Rules 3 and 5 of U.P. Recruitment of Dependants of Government Servants, (Dying-in-Harness) Rules, 1973 - respondent appointed under Dying-in-Harness Rules - petitioner contends he was promoted to that post - fixed procedure for appointment under these Rules has to be laid down -...

Key legal issue: Service
Acts & sections: Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1973 - Rules 3 and 5; Dying-in-Harness Rules, 1974

Parties & Advocates

Appellant / Petitioner

Bithoori Lal

Advocate A.K. Sand, Adv.

Respondent

State of U.P. and Others

Advocate I.M. Khan, Adv. and ;S.C.

Legal References

Acts: Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1973 - Rules 3 and 5; Dying-in-Harness Rules, 1974
Reported In: 2000(4)AWC2852; [2000(86)FLR954]; (2000)3UPLBEC2789

Excerpt

service - procedure for appointment - rules 3 and 5 of u.p. recruitment of dependants of government servants, (dying-in-harness) rules, 1973 - respondent appointed under dying-in-harness rules - petitioner contends he was promoted to that post - fixed procedure for appointment under these rules has to be laid down - financial position to be main consideration - unable to prove promotion to be given precedence over compassionate appointment - held, interim order to continue and the matter to be decided by director local bodies. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - zahlda khatcon, who has been, admittedly, employed at the relevant time as will be evident from perusal of para 11 ofthe writ petition as well as para 21 of the counter-affidavit, sworn by mohd. 4. petitioner has also failed to substantiate that appointment by promotion is to take precedence over appointment on compassionate grounds under dying-in-harness rules. , lucknow in writing (along with certified copy of this order as well as complete paper book of the writ petition) within six weeks from today, the said authority shall decide the matter after affording opportunity of hearing to the parties concerned by a speaking order preferably within four months of the receipt of the representation......had already taken over the charge on the post in question on september 19. 1992 and hence the post was not vacant at all when respondent no. 4 was allegedly issued appointment letter. 4. this court does not intend togo into the disputed question of fact, inasmuch as this petition can be decided on a short ground. it is admitted at the bar that there is no material, as on date, to indicate that whether appointment under dying-in-harness rules will take precedence over any other mode of appointment (including by promotion, etc. or vice versa). 5. one fact, which is not disputed in the instant case, is that wife of the deceased was already employed. para 6 of the relevant dying-in-harness rules, 1974 (annexure-2 to the writ petition) shows that certain procedure has to be adopted before a dependant of a deceased employee could be given benefit of appointment under dying-in-harness rules. main emphasis is upon the financial condition of the family. 6. hence, this court is of the opinion that before appointment under dying-in-harness rules is proposed, the employer must follow the procedure and undertake an exercise to ascertain financial condition of the family in question. the appointment under dying-in-harness rules is not dependantmerely upon one fact, i.e., death of an employee 'dying-in-harness'. to seek benefit of employment under rules. 1974. family must be in distress which must be ascertained as a fact. 7. since there is nothing on record to indicate that requisite procedure was adopted and whether condition precedent existed, viz.. family in distress, no appointment under 'dying-in-harness rules. 1974' could be made in favour of respondent no. 4. petitioner has also failed to substantiate that appointment by promotion is to take precedence over appointment on compassionate grounds under dying-in-harness rules. 8. i, accordingly, direct that the matter may be decided by the director local bodies, u. p.. lucknow after affording opportunity of hearing to the.....

Full Judgment

A.K. Yog, J.

1. Heard Sri A. C. Verma. learned counsel for the petitioner, learned standing counsel for respondent No. 1, and Sri Mehbood Ahmad Siddiqui. holding brief of Sri I. M. Khan, representing respondent No. 4. Sri R. K. Saxena, Advocate, representing respondent Nos. 2 and 3 is not present.

2. Petitioner, belonging to Scheduled Caste, was working as Clerk-cum-typist in the Nagar Palika, Fatehpur since 1984. On September 17. 1992 one Mansoor Ahmad, holding post of the Stenographer in the said Nagar Palika, died living behind his widow Smt. Zahlda Khatcon, who has been, admittedly, employed at the relevant time as will be evident from perusal of para 11 ofthe writ petition as well as para 21 of the counter-affidavit, sworn by Mohd. Arif Mansoor, respondent No. 4.

3. The petitioner claims that the post of Stenographer held by deceased Mansoor Ahmad was in the promotional quota In the relevant rules no particulars given but respondent No. 4 (son of the aforementioned deceased Mansoor Ahmad) was appointed on compassionate ground under Dying-in-Harness Rules, 1974 and copy of which has been filed as Annexure-2 to the writ petition. In para 10 of the writ petition it is stated that appointment letter in favour of respondent No. 4 was anti-dated to make it appear as on 1.10.1992 even though petitioner had already taken over the charge on the post in question on September 19. 1992 and hence the post was not vacant at all when respondent No. 4 was allegedly Issued appointment letter.

4. This Court does not intend togo into the disputed question of fact, inasmuch as this petition can be decided on a short ground. It is admitted at the Bar that there is no material, as on date, to indicate that whether appointment under Dying-in-Harness Rules will take precedence over any other mode of appointment (including by promotion, etc. or vice versa).

5. One fact, which is not disputed in the instant case, is that wife of the deceased was already employed. Para 6 of the relevant Dying-in-Harness Rules, 1974 (Annexure-2 to the writ petition) shows that certain procedure has to be adopted before a dependant of a deceased employee could be given benefit of appointment under Dying-in-Harness Rules. Main emphasis is upon the financial condition of the family.

6. Hence, this Court is of the opinion that before appointment under Dying-in-Harness Rules is proposed, the employer must follow the procedure and undertake an exercise to ascertain financial condition of the family in question. The appointment under Dying-in-Harness Rules is not dependantmerely upon one fact, i.e., death of an employee 'Dying-in-Harness'. To seek benefit of employment under Rules. 1974. family must be in distress which must be ascertained as a fact.

7. Since there is nothing on record to indicate that requisite procedure was adopted and whether condition precedent existed, viz.. family in distress, no appointment under 'Dying-in-Harness Rules. 1974' could be made in favour of respondent No. 4. Petitioner has also failed to substantiate that appointment by promotion is to take precedence over appointment on compassionate grounds under Dying-in-Harness Rules.

8. I, accordingly, direct that the matter may be decided by the Director Local Bodies, U. P.. Lucknow after affording opportunity of hearing to the concerned parties.

9. Consequently, I direct that if the concerned party/parties files a representation before Director Local Bodies, U. P., Lucknow in writing (along with certified copy of this order as well as complete paper book of the writ petition) within six weeks from today, the said authority shall decide the matter after affording opportunity of hearing to the parties concerned by a speaking order preferably within four months of the receipt of the representation.

10. Till the decision on the representation as Indicated above, interim order dated 13.5.1999 passed by this Court shall continue.

11. Writ petition is partly allowed subject to the observations made above.

Same Court & Year Allahabad · 2000 Same Parties Bithoori Lal vs State of U.P. and Others Same Subject Service Same Judge A.K. Yog, J. Acts & Sections Uttar Pradesh Recruitment of Dependants of Government Servant...

Service