Rohitas Sharma Vs. State of U.P. and Others - Court Judgment

Excerpt:
service - removal from service - rule 31 of u.p. palika centralised services rules, 1966 read with dying-in-harness rules, 1974 - petitioner removed from service - government record showing validity of petitioner's appointment as executive officer - appointment letter dispensing mention of eligibility of petitioner to be appointed on compassionate grounds not to render appointment invalid - held, order of removal quashed and petitioner entitled to be regularized. - - sri devendra kumar arora as well as learned standing counsel appearing for the opposite parties. ' 8. even after passing the aforementioned two orders of two governors of uttar pradesh clearly directing for appointment of the petitioner, the petitioner was not given appointment for about three years which shows the high-handedness of the bureaucrats and the petitioner was made to run from pillar to post for three years seeking an appointment.jagdish bhalla, j.1. by means of this writ petition, the petitioner has prayed for a writ of certiorari to quash the impugned order of termination of his services dated 24.3.1998, contained in annexure-1 to the writ petition. he has further prayed for a writ in the nature of mandamus commanding the opposite parties to allow the petitioner to function as executive officer, class iv in nagar palika parishad with a further prayer to command the opposite parties to issue a modified appointment order thereby indicating the fact that the petitioner is appointed under the dying-in-harness rules after relaxing the conditions which come in the way of regular appointment of the petitioner.2. the petitioner's father, late sri bheem sen sharma, was the executive officer in nagar palika, rudrapur, district nainital. while working on the said post, he died in a car accident near bhojipura, district bareilly on 22.2.1993 when he was on duty and was going along with additional district magistrate (nazul) nainital in a car. the mother of the petitioner, srimati chandrawati sharma (the wife of the deceased) submitted a representation to the state government on 3.3.1993 requesting therein that her eldest son. rohitas sharma, the petitioner, be given the benefit of the dying-in-harness rules and be appointed on the post of executive officer, class iii in any nagar palika. thereafter she submitted another representation on 18.3.1993 and a reminder on 24.3.1993. when nothing was done by the opposite parties, she submitted a memorandum to his excellency the governor of uttar pradesh on 9.4.1993 mentioning therein that insimilar circumstances, a large number of dependents of the employees who have died in-harness, have been given appointment and, therefore, her son, the petitioner, rohitas sharma, be given appointment on the post of executive officer, class iii in any nagar palika. she had also pointed out the names of those persons who had been given appointment in similar circumstances under rule 31 of the u. p. palika centralised services rules, 1966 (hereinafter referred to as the rules) on the post of executive officer, class ii, such as sarvashri s. k. singh, anupam shukla, anil kumar and munindra singh rathore. after considering the said memorandum dated 9.4.1993, the then governor of uttar pradesh was pleased to pass an order dated 24.4.1993 directing the opposite parties to appoint the petitioner on the post of executive officer, class iii under rule 31 of the rules. when the compliance of the said orders of the governor of uttar pradesh was not done, the petitioner filed writ petition no. 5940 (ss) of 1993 before this court wherein by order dated 3.8.1993 this court directed the opposite parties to consider the case of the petitioner for appointment or to show cause. the opposite parties neither complied with the orders of the governor of uttar pradesh dated 24.4.1993 nor did they comply with the orders of this court dated 3.8.1993 passed in writ petition no. 5940 (ss) of 1993. in the meantime, the governor of uttar pradesh was changed and the new governor of uttar pradesh passed an order dated 27.11.1993 reiterating the orders dated 24.4.1993 passed by the earlier governor of uttar pradesh. thereafter the petitioner was issued an appointment letter dated 13.3.1996 appointing him on the post of executive officer, class iv in the pay scale of rs. 1,400-2,300 under rule 31 of the rules and posting him in nagar palika parishad, srinagar, district pauri garhwal, but the petitioner's appointment was made on ad hoc basis for a period of six months or till regularly selected candidate joins, whichever is earlier. thereafter, the petitioner wastransferred from srinagar to nagar palika parishad, vikas nagar, district dehradun, by order dated 1.7.1996. thereafter no extension was given to the appointment of the petitioner and the services of the petitioner stood terminated on 31.10.1996 although regularly selected candidates from the u. p. public service commission were not available. then the petitioner filed another writ petition no. 6852 (ss) of 1996 wherein this court on 7.11.1996 passed the following order :'in case the petitioner was appointed under the dying-in-harness rules and there is no regularly selected candidate from public service commission available, the petitioner shall be allowed to work and paid salary.'in compliance of the aforesaid order dated 7.11.1996 by order dated 10.12.1996, the petitioner was given re-appointment but by the impugned order dated 24.3.1998 his services were again terminated.3. in paragraphs 4, 5, 6 and 7 of the counter-affidavit filed on behalf of the opposite parties, all the above mentioned facts have been admitted but thereafter in further paragraphs, it has been mentioned that the petitioner was not given appointment under the dying-in-harness rules but was appointed under rule 31 of the rules on ad hoc basis and his services were rightly terminated in accordance with the terms and conditions of the appointment order dated 13.3.1996. it is further mentioned that the petitioner was not appointed in compliance of the orders of this court passed in writ petition no. 6852 (ss) of 1996. it has been further mentioned in the counter-affidavit that in accordance with government order dated 5.11.1992, the petitioner could be offered appointment only on a non-centralised post, therefore, by order dated 24.3.1993 he was offered appointment under the dying-in-harness rules on a non-centralised post upon which the petitioner did not join. as the hon'ble supreme court in s.l.p. no. 1105 of 1996 has made observations deprecating the ad hoc appointments made under rule31 of the rules from time to time ; therefore, the services of the petitioner on the post of executive officer class-iv were terminated by the impugned order dated 24.3.1998. therefore, the termination of the services of the petitioner is in accordance with law.4. heard learned counsel for the petitioner. sri devendra kumar arora as well as learned standing counsel appearing for the opposite parties.5. it is an admitted fact that the petitioner's father was the executive officer in nagar palika parishad, rudrapur, district nainital and he died in-harness on 22.2.1993. the question in this writ petition is as to whether the petitioner's appointment on the post of executive officer, class-iv in nagar patika parishad made from time to time under rule 31 of the rules was actually an appointment under the dying-in-harness rules or not? learned standing counsel has emphatically denied the fact of the petitioner's appointment under the dying-in-harness rules. on the other hand, learned counsel for the petitioner has not only reiterated this fact but has also given examples of a large number of similarly situated persons who were appointed by the opposite parties under rule 31 of the rules read with dying-in-harness rules, 1974. annexure-14 is the copy of appointment order of km. rauli gupta dated july 30, 1988, who was appointed on the post of section officer under rule 31 read with dying-in-harness rules. thereafter her services have also been regularised by order dated july 22, 1991, contained in annexure-15 to the writ petition. in the list, contained in annexure-14 to the writ petition, the petitioner has given the names of 21 persons whose appointments have been made under rule 31 of the rules read with dying-in-harness rules and that too on the posts which fall within the purview of the u. p. public service commission. according to the petitioner, he is being discriminated by not giving the same benefit which has been given to similarly situated other persons.6. we have perused the original record of the state government regarding petitioner's appointment. the record shows that an application was moved by the widow of late sri bheem sen sharma (mother of the petitioner), srimati chandrawati sharma, to the stale government stating that her husband, bheem sen sharma, who was executive officer in nagar palika, rudrapur, district nalnital, died in a car accident on 22.2.1993 near bhojipura, district bareilly, while he was on duty and was going along with additional district magistrate to attend a meeting. in the said application dated 3.3.1993, she prayed that her elder son, rohitas sharma, (the petitioner) who is a graduate, be appointed on the post of executive officer under the u. p. palika centralised service rules read with dying-in-harness rules. at that time, president rule was in force in uttar pradesh. after processing, the said application was sent to the governor of uttar pradesh for passing final orders. at page no. 4 of the order-sheets, the governor of uttar pradesh passed order to the effect that rohitas sharma who is the son of the deceased executive officer, nagar palika. rudrapur, be appointed on ad hoc basis under rule 31 of the u. p. palika centralised service rules in any class-iii nagarpalika. the said order which is in devnagri script, is quoted below :'patravali ka avlokan kiya swargiya shri bheem sen sharma, adhishasi adhikari, nagarpalika rudrapur ke aashrit putra shri rohitas sharma ko u. p. palika (kendriya) sewa niyamawali, 1966 ke niyam 31 ke antargat kisi shreni 3 ki nagarpalika men rikt sthan par ad hoc niyukti de di jaye. sd. b. satya narain reddy24.4.1993rajyapaluttar pradesh7. the above order was passed by the governor of uttar pradesh at the time when president rule was in force in uttar pradesh. at page 15 of the order-sheet, the names of tensuch persons have been given who have been appointed under rule 31 of the rules on the posts of executive officer and whose services have been regularised later on. thereafter at page 10 of the order-sheet, the names of three dependents of the deceased employees have been given who have been appointed under rule 31 of the rules read with dying-in-harness rules. thereafter at page 19, there is another order of the governor of uttar pradesh dated 27.11.1993 directing that the orders passed by the then governor at page 4 be complied with. the said orders are reproduced below :'prishtha 4 par tatkalin shri rajyapal dwara jo aadesh diye gaye the unka anupalan kiya jaye. sd. moti lal vohra,27.11.1993rajyapal uttar pradesh.'8. even after passing the aforementioned two orders of two governors of uttar pradesh clearly directing for appointment of the petitioner, the petitioner was not given appointment for about three years which shows the high-handedness of the bureaucrats and the petitioner was made to run from pillar to post for three years seeking an appointment. thereafter the governor of uttar pradesh, at page 45 again passed an order on 16.1.1996 directing that in case no post of executive officer, class-iii is vacant, then the petitioner be given appointment on the post of executive officer, class-iv. upon the said order of the governor of uttar pradesh dated 16.1.1996, a proposal for appointment of the petitioner was made and got approved by the governor of uttar pradesh on 7.3.1996 at page 48. thereafter an appointment letter was issued to the petitioner on 13.3.1996 appointing him on the post of executive officer, class-iv.9. from a perusal of the above record of the state government, it is crystal clear that it was a case of appointment under the dying-in-harness rules read with rule 31 of the rules. in case in the appointment letter, the reference of both the rules has not been mentioned and only reference of rule 31 of the rules has been given and the reference of dying-in-harness rules has been omitted, it will not make any difference upon the appointment of the petitioner and the same will be deemed to have been made under the dying-in-harness rules read with rule 31 of the rules as has been done by the state government in the case of km. rauli gupta who was also appointed under rule 31 of the rules being the dependent of deceased employee and in her appointment letter dated july 30, 1988, contained in annexure-15 to the writ petition reference of both the rules, i.e., rule 31 of the rules and dying-in-harness rules, has been given. later on she was regularised by another order dated july 22, 1991, contained in annexure-16 to the writ petition. same is the position of the petitioner. actually, the basis of the petitioner's appointment is none else but his being the dependent of the employee who died in harness thereby giving him the benefit of the dying-in-harness rules. therefore, it cannot be said that the petitioner was given appointment without considering the fact that he was the dependent of the employee who died in-harness. the record of the state government itself shows that each and every step the fact that the petitioner was the dependent of the employee who died in-harness was considered. omission of this fact in the appointment letter issued to the petitioner will not make any difference. therefore, it is held that the petitioner was appointed under rule 31 of the u. p. palika centralised service rules, 1966, read with dying-in-harness rules, 1974 and his services are liable to be continued and regularised.10. lastly, it has been submitted by the learned standing counsel that in view of the government order of 1992, the petitioner is not entitled to be appointed or regularised on the post of executive officer. since the petitioner has already been appointed on the said post and is servingcontinuously for the last about four years, therefore, it would be proper in the fitness of the things that his services be regularised on the said post by relaxing the provisions of the said government order of 1992.11. in view of what has beendiscussed above the writ petition isallowed. the impugned order oftermination of the services of thepetitioner dated 24.3.1998, containedin annexure-1 to the writ petition, isquashed. the appointment of thepetitioner shall be deemed to be anappointment under the dying-in-harness rules, 1974 read with rule31 of the u. p. palika centralisedservice rules, 1966 and the oppositeparties are directed to regularise theservices of the petitioner on the postof executive officer, class-iv byrelaxing the provisions of thegovernment order of 1992. no orderas to costs.