NAVAL KISHOR MELKANI Vs. STATE OF UTTARAKHAND AND OTHERS
LAWS(UTN)-2012-4-107
HIGH COURT OF UTTARAKHAND
Decided on April 18,2012

Naval Kishor Melkani Appellant
VERSUS
State of Uttarakhand and others Respondents

JUDGEMENT

Barin Ghosh, C. J. - (1.) Delay Condonation Application No. 3324 of 2012
(2.) THE application for condonation of delay in preferring the appeal is not being objected by filing an application. We have considered the averments made in the application for condonation of delay in preferring the appeal and being satisfied with the reasons furnished therein, we condone the delay in preferring the appeal. (Special Appeal No. 63 of 2012) Father of the petitioner was engaged by the State of Uttar Pradesh as Kurk Amin. The State of Uttar Pradesh held out that Kurk Amins are not State Government employees. This holding out was successfully challenged by Kurk Amins before the Hon'ble Allahabad High Court. The Hon'ble Court, by an order passed in 1995, declared that Kurk Amins are employees of the State of Uttar Pradesh and, accordingly, they are employees of the Government of Uttar Pradesh. Against that, a Special Leave Petition was filed, which was dismissed in the year 2001 by the Hon'ble Supreme Court. In the meantime, in the year 1996, father of the appellant died, while he had not reached the age of superannuation fixed for the employees of the Government of Uttar Pradesh. There is no dispute that the State of Uttar Pradesh formulated a Scheme for giving compassionate appointment to a dependant of a deceased government employee who had died in harness. Accordingly, mother of the appellant applied in 1996 for giving her a compassionate appointment for her husband has died in harness. According to the appellant, no action was taken on the said application. In the year 1999, appellant became major and, accordingly, his mother once again applied for a compassionate appointment to be given to the appellant for the father of the appellant died in harness. While the said application was not responded to by the Government of Uttar Pradesh or its functionaries, on 9th November, 2000 carving a part of the State of Uttar Pradesh, the State of Uttarakhand was created. Since the father of the appellant was working as a Kurk Amin within the territory of the State of Uttar Pradesh, which became the State of Uttarakhand, the application, thus, made in 1999 for a compassionate appointment of the appellant, was considered by the State of Uttarakhand and its officers, who, by an order dated 29th July, 2002 held out that, since Kurk Amins were not State Government employees, scheme of giving compassionate appointment was not applicable to deceased Kurk Amins, who died in harness. This order dated 29th July, 2002 was assailed by the appellant by filing a writ petition in the year 2011. Noticing that no plausible explanation has been given as to why the appellant could not approach the Court earlier questioning the order dated 29th July, 2002, the writ petition has been dismissed, on the ground of laches, by the judgment and order under appeal. In the present writ petition, it has been contended that Kurk Amins of the State of Uttarakhand also filed a writ petition, which was decided by a learned Single Judge of this Court in their favour in 2006, whereupon an appeal was preferred and the said appeal was dismissed on 14th September, 2010 with a clarification that Kurk Amins of the State of Uttarakhand shall be treated to be Government servants with effect from 1995, but consequential benefits shall be given with effect from 9th November, 2000. Appellant contends that in view of the stand taken on 29th July, 2002, appellant was waiting for the outcome of the judgment rendered by this Court and which having been rendered only on 14th September, 2010, there was, in fact, no delay or laches on the part of the appellant in approaching the writ court.
(3.) The fact remains that the father of the appellant was never an employee of the State of Uttarakhand. Under no circumstances, father of the appellant could be considered to have ever become an employee of the State of Uttarakhand for the father of the appellant died much before the State of Uttarakhand was created. At the same time, father of the appellant was, admittedly, an employee of the State of Uttar Pradesh and, being such an employee, was entitled to have the benefit of the Scheme propounded by the State of Uttar Pradesh for giving compassionate appointment to a dependant of a government employee, who has died in harness. Appellant sought the benefit of the said Scheme from the State of Uttar Pradesh. That was decided by the State of Uttarakhand on 29th July, 2002. In the circumstances, because the State of Uttarakhand did not recognize Kurk Amins as government employees, it was not necessary for the appellant to seek to enforce his right to be considered for appointment on compassionate ground from the State of Uttarakhand. It was well within the competence of the appellant to have such appointment from the State of Uttar Pradesh. In the circumstances, there is no just reason for the appellant to wait and watch the outcome of the litigation filed by the Kurk Amins of the State of Uttarakhand. In that background, learned Judge, while rejecting the writ petition, has used the expression "no plausible explanation has been given as to why the petitioner could not approach the Court earlier questioning the impugned order." We find no reason to interfere with the said order. Accordingly, the appeal fails and the same is dismissed. We, however, make it clear that the right, if any, of the appellant, in the facts and circumstances as above, accrued against the State of Uttar Pradesh has not been dealt with in the present litigation.;


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