Full Judgment
Prafulla C. Pant, J.
1. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought mandamus directing the respondents to consider the case of the petitioner for appointment on compassionate ground under the U. P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974.
2. Brief facts of the case as narrated in the writ petition are that Shri Mathura Dutt Sharma, father of the petitioner, was posted as Junior Engineer in the Public Works Department at Rudrapur, district Udham Singh Nagar who died in harness on 5.3.2002 leaving behind his widow, two sons (including the petitioner) and one unmarried sister. On 27.5.2002 (copy Annexure-1 to the writ petition) mother of the petitioner moved an application before respondent Nos. 3 and 4 for employment of her younger son on compassionate ground. Respondent Nos. 3 and 4 vide their reply dated 29.7.2002 and 5.8.2002 (copy Annexures-2 and 3 to the writ petition) informed the mother of the petitioner regarding rejection of request made by her, and suggested that she may approach to Principal Chief Engineer, Public Works Department, U. P., Lucknow. Thereafter petitioner's mother submitted an application dated 20.8.2002 (copy Annexure-4 to the writ petition) to the Principal Chief Engineer, P.W.D., U. P., Lucknow. Again, on 26.6.2002 by another letter (copy Annexure 6 to the writ petition), this time petitioner himself got moved his application to the Principal Chief Engineer, P.W.D., U. P., Lucknow through respondent No. 4 for his appointment to the post of legal assistant on compassionate ground but still no order was passed even after reminders been sent in the matter, to the State of Uttaranchal as well as to the State of U. P. Hence, the writ petition.
3. A counter-affidavit has been filed on behalf of the respondent Nos. 1 to 4 in which it has not been denied if Shri Mathura Dutt Sharma was not an employee with the respondent nor is there denial that he died in harness. However, it has been stated in the counter-affidavit that he (Sri Mathura Dutt Sharma) opted for the State of U. P. as such the petitioner cannot seek appointment on compassionate ground in the State of Uttaranchal. It is further stated in the counter-affidavit that the petitioner can seek appointment under U. P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974, in the State of U. P. It has not been disputed in the counter-affidavit that the petitioner is qualified for his appointment on compassionate ground. On behalf of the State of U. P. no counter-affidavit has been filed.
4. I heard learned counsel for the parties and perused the affidavit, counter-affidavit and rejoinder-affidavit along with annexures annexed thereto.
5. The short question for consideration before this Court is whether the petitioner is wrongly denied the appointment on compassionate ground by the respondents.
6. Admittedly Shri Mathura Dutt Sharma was a Junior Engineer with the Public Works Department and was posted at Rudrapur (District Udham Singh Nagar), at the time of his death. The entire dispute relates as to the point if the petitioner is entitled to appointment on compassionate ground on the death of his father if so in which State. Before further discussion in the matter, it is pertinent to mention here the relevant provision of law as to the status of the employee working in the territory of Uttaranchal before his allocation to either of the successor States, i.e.. State of Uttaranchal and State of U. P. Section 75 of U. P. Reorganization Act, 2000 reads as under :
75. 'Every person who, immediately before the appointed day, is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Uttar Pradesh in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in that successor State....................'
The above Section under U. P. Reorganization Act makes it very clear that the employees who were working in the territory of Uttaranchal on the date of its creation of the new State shall continue to hold their office in that State and shall be deemed to have been duly appointed to the post or office by the Government of said State. As such the allocation of employee under Section 73 has no effect till the date of their relieving after allocation to another State. Otherwise also the deceased was working under the officers of the Government of Uttaranchal and was drawing salary from the Government of Uttaranchal on the date of his death. As such from no stretch of imagination liability to appoint dependants of the deceased employee can be shifted from the State where the deceased was working to the State where he would have joined after allocation. In these circumstances the stand taken by respondent Nos. 1 to 4 and reason given by them for not considering the appointment of the petitioner or any other dependant of deceased employee, is unreasonable and against the provisions of law. It is pertinent to mention here that U. P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974, are still applicable in the State of Uttaranchal, as Uttaranchal Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 2002 had been withdrawn and repealed on 31st October, 2002.
7. Therefore, in view of the above discussion, this Court disposes of this writ petition with the mandamus that the respondent Nos. 1 to 4 shall consider the case of dependants of deceased employee Sri Mathura Dutt Sharma for giving employment to one of them to the class IV or class III post, as the case may be, under U. P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974 (applicable in Uttaranchal) provided the person concerned is qualified for the appointment. No order as to costs.