Sunil Kumar Vs. State of U.P. and ors. - Court Judgment

Excerpt:
service - compassionate appointment - rules 2(a) and 5 of u.p. recruitment of dependents of government servants (dying-in-harness) rules, 1974 - whether heir of daily wage employee can be dismissed from service only on grounds that his father was a daily wage employee - deceased has put in thirteen years of service - heirs validly entitled to appointment on compassionate grounds - cannot be terminated and liable to be appointed with all benefits. - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. s. n. srivastava, j.1. the short question that looms large in this petition is whether the services of dependent of a government servant dying-in-harness could be dispensed with as a sequel to the directions contained in the government order dated 2.5.2002. 2. matrix of the necessary facts is that petitioner's father, namely, late hari prakash, who had been serving as safai karamchari in the nagar nigam, ghaziabad, died on 28.2,2001. thereafter, petitioner applied for compassionate appointment and consequently, he was offered appointment on the vacant post held by his father though on daily wage basis vide order dated 3.7,2001 and was attached to health department of the nagar nigam. it would transpire from the record that state government issued government order dated 2nd may, 2002, addressed to mukhya nagar adhikari, nagar nigam, gorakhpur, the text of which was that the benefit of dying-in-harness rules would not be applicable to daily wage employees and as such appointment under dying-in-harness rules on death of a daily wage employee was invalid, attended with further direction to terminate the services of all casual employees under intimation to the government. it would thus appear that background of the impugned order dated 21.5.2002, thereby rescinding the appointment and terminating the services of the petitioner, is the government order aforestated. 3. learned counsel for the petitioner began his submission arguing that the father of the petitioner had put in 13 years of service in the nagar nigam unto the date of his death and he served all these years in the nagar nigam as safai karmachari on the post which was born of requirements of the nagar nigam. he further canvassed that dying-in-harness rules, 1974, had been adopted for application to all the local bodies including nagar nigam. he also drew attention of the court to the relevant provision in the dying-in-harness rules the quintessence of which is that benefit of dying-in-harness rules would extend coverage to a person appointed temporarily for more than 3 years. he assailed the order of the state government containing direction to terminate the services of the petitioner, who wa's appointed under dying-in-harness rules, as one militating against the provisions of law and the u. p. recruitment of government servants dying-in-harness rules, 1974. he also referred to the government order dated 5.11.2002 (annexure-4) and also the government order dated 15th october, 1998, according to which even the work charge employees were entitled to the benefit flowing from dying-in-harness rules. sri prem chand, learned counsel representing the nagar nigam and the standing counsel, in unison, contended in opposition that since the father of the petitioner had served in the nagar nigam on daily wage basis though at the same time conceded that he had put in about 13 years of service at the time of his death, the petitioner was not entitled to compassionate appointment. 4. 1 have heard learned counsel for the parties and considered the respective argument of the learned counsel for the parties in all its ramifications. before delving into analytical examination of the merits of the respective arguments, it is essential to refer to rule 2 (a) of the u. p. recruitment of dependants of government servant dying-in-harness rules, 1974, which concededly is intended and has been made applicable to all the local bodies inasmuch as the assertion on this count specifically made in paragraph 6 of the writ petition has not been repudiated in para 8 of the counter-affidavit. in rule 2 of the rules, expression 'government servant' has been defined in the following manner ; '(a) 'government servant' means a government servant employed in connection with the affairs of uttar pradesh, who : (i) was permanent in such employment ; or (ii) though temporary had been regularly appointed in such employment ; or (iii) though not regularly appointed, had put in three years' continuous service in regular vacancy in such employment.' it would crystallise from perusal of rule 2 (a) (iii) that if a person though not regularly appointed, had put in three years' continuous service in regular vacancy in such employment, dependants of such employees would be entitled to the benefits flowing from dying-in-harness rules. besides, it is also explicit from a perusal of the government order dated 18th october, 1998, that government in terms of the provisions of the dying-in-harness rules issued a clarificatory order that the benefits of dying-in-harness rules were also applicable to work charge employees. in the instant petition, the deceased employee had concededly put in about 13 years of service though he could not be redeemed from the epithet of daily wage employee unto his death. it is also obvious from the record and it has not been repudiated that the deceased employee endured in the service of nagar nigam all these years against its permanent requirements. by this reckoning, it is beyond the pale of controversy that the deceased employee held the post against permanent requirements of the nagar nigam even though for reasons not obvious on record, he wore the badge of daily wage employee unto his death. in the circumstances, i am of the firm view that benefits of dying-in-harness rules must on all fours apply to the dependent of the deceased employee, i.e., the petitioner. to cap it all, it defies logic that when the state government has made applicable the benefits of dying-in-harness rules to the work charge employees, how could this be denied to the petitioner whose father had served the nagar nigam as safai karmachari for about 13 years in unbroken continuity. the necessary corollary that follows from the above is that the directions of the state of u. p. to terminate the service of dependents who were appointed under dying-in-harness, rules merely on the hypothesis that petitioner's father had worked as daily wage employee and the consequential order rescinding the petitioner's appointment and termination of his services, cannot be sustained in law. it is, therefore, held that a daily wage employee working against permanent requirements of the nagar nigam for more than 3 years in a vacancy existing for more than 13 years even though he continued to wear the badge of daily wage employee, his dependants are entitled to get the benefits of appointment flowing from dying-in-harness rules. 5. as a result of the foregoingdiscussion, the petition succeeds andis allowed. the impugned order dated21.5.2002, passed by the uppermukhya nagar adhikari and theconsequential order of senior nagarswasthaya adhikari, nagar nigam,ghaziabad, dated 28.5.2002 arequashed. as a consequence thereof,the petitioner is held to have beenrightly appointed under the dying-in-harness rules and he shall be entitledto be absorbed in the nagar nigamand to all consequential benefits.