- (1.) Heard Learned Counsel for the parties'. In both the writ petitions, common question of law and fact is involved, hence, with the consent of the parties' we proceed to decide both the writ petitions finally by the present common judgment. Smt. Durgesh Hukku, the petitioner of Writ Petition No. 1083 (SB) of 2010 was appointed on compassionate ground on the post of Assistant Director on 1.6.1993. Whereas, Shri Maya Lal, the petitioner of Writ Petition No. 1350(SB) of 2011 was appointed subsequent to petitioner in clerical cadre and promoted on the post of Office Superintending in the year 2000. It appears that in the year 1996 Service Rules were framed regulating the service condition of the employees of the department which contains the different promotional avenues under the staffing pattern. It transpires from the evidence on record that on account of arising of dispute with regard to promotional avenues, by the impugned order 13.7.2010, ex-cadre post was created for Smt. Durgesh Hukku with the provision that she shall continue on the post of Assistant Director till her retirement and post shall deem to be abolished immediately after retirement.
(2.) While assailing the impugned order dated 13.7.2010 it has been submitted by the petitioner's counsel that no ex-cadre post could have been created to deprive the petitioner from her promotional avenues in the department. It has been submitted that appointment on compassionate ground under the dying in harness Rules 1973 amounts to regular appointment. Under Rule 4 of the U.P. Government Servant Dying in Harness Rules 1974 (in short hereinafter referred as 1974 Rules) appointments on compassionate grounds are made. The rule has got overriding effect on all other rules regulating the service conditions. Meaning thereby person appointed under the 1974 Rules shall deem to be regular appointee though on compassionate ground. A combined reading of Rules 4, 5, 6 and 7 of the 1974 Rules reveal that the recruitment under 1974 rules on compassionate ground shall be at par with the regular recruitment in the Government service.
(3.) A Division Bench of this Court in a case in Ravi Koran Singh v. State of U.P. and others, 1999 17 LCD 641, after considering the earlier judgment had ruled that a person appointed under 1974 Rules shall deem to be permanent appointee and not a temporary or adhoc. The Division Bench judgment is reproduced as under: This petitioner has come up before us on a reference made by the learned Single Judge by his order dated 19.12.1997. The point involved is very simple, that is, whether an appointment under The Dying in Harness Rules is a permanent appointment or a temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appointment vide Budhi Sagar Dubey v. D.I.O.S.,1993 ESC 21, Gulab Yadav v. State of U.P. and others,1991 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. and others,1991 1 UPLBEC 427. The learned Single Judge who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench. 2. In our opinion, an appointment under The Dying in harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rule because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules 1975 will not apply to such appointments. 3. The petition is disposed of accordingly. (ordered accordingly);