Sanjay Misra, J. - (1.) HEARD the learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the respondents.
(2.) BY means of this writ petition the petitioner seeks quashing of order dated 25.1.2000 communicated by letter dated 28.1.2000 passed by respondent no. 2 (Annexure-12 toe the writ petition) whereby the claim for appointment of the petitioner under Dying in Harness Rules, 1974 has been refused. It has been stated by the petitioner that in the aforesaid communication, no reason has been given for such denial and as such the same is liable to be quashed by this court. It is further stated that the petitioner is entitled for compassionate appointment in place of his deceased father who was a Tubewell Operator having been given appointment in the year 1987. The appointment letter dated 19.3.87 has been filed as Annexure-4 to the writ petition. The appointment was temporary for a period of three years and he could be considered for re-appointment. Prior to joining he was to be given fifteen days training and his salary was fixed at Rs.299.00 per month. He was also entitled to leave as per conditions given in the appointment letter. It has been stated that late Kashi Nath Chaube had filed a writ petition no. 9507 of 1996 claiming parity of pay with other regular tube well operators in view of the decision of this Court in Writ Petition No. 3558 (S/S) 1992. By an order dated 20.5.92 he was posted as Tube-well Assistant on a salary of Rs.550.00 per month and the nature of his duties was also defined. It is stated that the petitioner's late father was posted as Gram Panchayat Vikas Adhikari by virtue of G.O. dated 30.6.99 and his name finds place at serial no. 40 of the list dated 9.7.99 prepared by the District Magistrate. It is the contention of the petitioner that his late father had worked for a period of nearly 12 years whereafter he died on 20.8.99 while in active service. The petitioner made an application dated 29.12.99 for appointment of the petitioner on compassionate ground claiming that the petitioner's qualification is Intermediate. A counter affidavit has been filed by the respondents wherein the facts as averred by the petitioner have not been disputed. However, it has been stated that by virtue of Government Order dated 26.10.98 (filed as Annexure-4 to the counter affidavit) the dependants of part time Tube-well Operators are not entitled to the benefits of compassionate appointment under the Dying in Harness Rules, 1974.
(3.) LEARNED Standing counsel has placed reliance on the decision of Apex court reported in 2005 Vol. I UPLBEC page 1 State of U.P. and another Vs. Ram Sukhi Devi and has contended that the G.O. dated 26.10.98 was not considered in that case by the High Court while passing an interim order and Hon'ble Supreme Court was pleased to set aside the order of High Court, Paragraph 6 of the judgment is quoted hereunder:- "To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This court has no numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this court has deprecated the practice of granting interim orders which practically give the principal relief thought in the petition for no better reason than that of prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. (See Assistant Collector of Central Excise, West Bengal Vs. Dunlop India Ltd., (1985) 1 SCC 260, State of Rajasthan Vs. M/S Swaika Properties; (1985) 3 SCC 217, State of U.P. and others Vs. Visheswar, (1985) Suppl (3) SCC 590, Bharatbhushan Sonaeji Kshirsagar Vs. (Dr.) Abdul Khalik Mohd. Musa and others, (1995) Suppl (2) SCC; Shiv Shanker and others Vs. Board of Directors, U.P.S.R.T.C. and another; (1995) Supp (2) SCC 726 and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt. Jammu Vs. Dr. Ashok Kumar Kohli, JT 1995 (8) SC 403). No basis has been indicated as to why learned Single Judge though the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reason. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment." Learned counsel for the petitioner on the other hand has argued that Rule 2 (a) (iii) of the Dying in Harness Rules provides that even though an employee is not regularly appointed but he has put in three years service in regular vacancy the benefits of said Rules flow to the dependant of the deceased employee. Learned counsel for the petitioner has relied upon the decision of this court in Sunil Kumar Vs. State of U.P. reported in 2003 (1) LBESR 410 Allahabad wherein this court considered the Dying in Harness Rules 1974 and held that a daily wage employee working against a permanent requirement of Nagar Nigam for more than three years in the vacancy existing for more than 13 years even though he continued to wear the badge of daily wage employee his dependant would be entitled for the benefits under Dying in Harness Rules. In the aforesaid case this court has considered the G.O. dated 18.10.98 to the effect that the benefits under Dying in Harness Rules would be applicable to work charge employee. Learned counsel for the petitioner has placed reliance upon a decision of this court in Writ Petition No.52395 of 2004 (Shiv Sagar Vs. State of U.P. and others) wherein it was held by this court that although the petitioner's father was a Collection Amin and was not a permanent employee but had worked for 11 years even then the petitioner was entitled for the benefits of Dying in Harness Rules by virtue of Rule 2 (a) (iii) of the said Rules.;