USHA SAXENA D/O LATE SRI GOPAL KUMAR SAXENA Vs. DIVISIONAL FOREST OFFICER HALDWANI NAINITAL
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
D/O LATE SRI GOPAL KUMAR SAXENA R/O FOREST WORKSHOP LALKUA NAINITAL
DIVISIONAL FOREST OFFICER, HALDWANI, NAINITAL
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(1.) Heard Mr. Sidhartha Bisht, the learned counsel for the petitioner and Mr. Anil Bisht, the learned brief holder for the respondents. The petitioner s father was a Class-IV employee working in the Forest Department and died in harness on 01 st June, 2005 after putting 30 years of service. The petitioner, being the unmarried daughter of the deceased, filed an application on 18th June, 2005 for appointment on compassionate grounds. This application remained pending and, accordingly, the petitioner filed a writ petition No.1489 of 2005 (S/S), which was allowed by a judgment dated 13.04.2010 with the following directions:- In the light of the aforesaid, this Court is of the opinion that the petitioner is entitled to be considered for appointment on compassionate grounds under the Rules of 1974. The writ petition is allowed. A writ of mandamus is issued to the respondents to consider the application of the petitioner for appointment on compassionate grounds in the light of the observations made aforesaid and pass a reasoned and speaking order within three months from the date of the production of a certified copy of the order.
(2.) The court directed the respondents to consider the application of the petitioner on compassionate grounds in the light of the observations made by the Court. The court found that the petitioner was working for a period of 30 years and further found that the petitioner was regularized pursuant to the directions of the Supreme Court in the case of State of U.P. & other Vs. Putti Lal, 2006 9 SCC 337. The court further held that the order of regularization made it clear that the petitioner s father was working on a substantive vacancy. The court also found that the petitioner s father was working either in a regular vacancy or in a substantive vacancy. The observation of the court in its judgment dated 13.04.2010 is extracted hereunder:-
The petitioner was a daily wager and was regularized in the year 2004. Consequently, subclause (i) of Rule 2 (a) would come into picture, namely, that he was employed in a permanent capacity. It has been alleged by the respondents that the petitioner s father did not accept the order of regularization and he continued to work as a Daily Wager. In that scenario, sub-clause (iii) of Rule 2 (a) would come into effect, namely, though not regularly appointed, had put in three years of continuous service in regular vacancy. The reasoning adopted is on account of the fact that a person who had worked for 30 years continuously indicates that the work was of a perennial nature and was not intermittent in nature and, in that light, there would be a deemed presumption that the daily wager was working in a regular vacancy or in a substantive vacancy.
The court finds that the petitioner was also regularized by the respondents by an order dated 05/02/2004 pursuant to the directions of the Supreme Court in the case of State of U.P. and others Vs. Putti Lal, 2006 9 SCC 337, wherein the Supreme Court directed the respondents to regularize the services of the daily wagers who had been working continuously. The regularization order clearly indicates that the petitioner was being absorbed in a permanent capacity. The order of regularization makes it clear that the petitioner s father had been working on a substantive vacancy.
(3.) Pursuant to the aforesaid directions of the court, the respondents reconsidered the matter and rejected the application of the petitioner on the ground that the petitioner is married, and therefore, is not entitled to be considered for appointment on compassionate grounds. The authority concerned further held that the petitioner s father was a daily wager and, consequently, the petitioner s case could not be considered for compassionate appointment since her father was not a permanent employee.;
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