- (1.) BY means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 12-12-2005 (copy Annexure 3 to the writ petition), whereby petitioner's appoint ment on the post of Peon, has been kept in abeyance. A mandamus has also been sought directing the respondents not to interfere in the working of the pe titioner as Peon. BY amendment a fur ther writ has been sought in the nature of certiorari quashing the order dated 01-02-2007 (copy Annexure 7 to the writ petition) passed by respondent no. 2.
(2.) HEARD learned counsel for the parties and perused the affidavit, coun ter affidavit and rejoinder affidavit. Brief facts' of the case are that petitioner's father Ganga Singh Bora was a Mechanic with Mines and Miner als Department of the respondent. He died on 05-05-2004, when he was posted at Haldwani (within the territory of State of Uttarakhand ). It is further stated in the writ petition that he was a permanent employee of the respondents, at the time of his death. After death of Ganga Singh Bora his family was fac ing a grave financial hardship and con sequently the petitioner who is son of the deceased Ganga Singh Bora, moved an application for appointment on the com passionate ground. It appears that ear lier he filed a Writ Petition No. 1233 of 2005 (S/s ). And while said writ petition was pending the respondent no. 3 issued appointment letter dated 19-11-2005 against the post of Peon in the pay scale of Rs. 2550-55-2660-60-3200 (a copy of said appointment letter is Annexure 1 to the writ petition ). It is further stated in the writ petition by the petitioner that on 30-11-2005, the petitioner in pursuance to the aforesaid appointment letter joined his duties. According to petitioner, to his utter surprise he got letter dated 12-12-2005, issued by respondent no. 3 keeping the appointment letter of the pe titioner in abeyance, which is challenged before this Court. It appears that there after the appointment letter was can celled and petitioner stood terminated from service by another impugned order dated 01-02-2007, passed during the pendency of this writ petition, which is also challenged by making amendment in the writ petition. A counter affidavit has been filed on behalf of the respondents no. 2,3 and 4. In para 4 of the counter affida vit it is admitted by the respondents that Ganga Singh Bora, father of the peti tioner was a Mechanic in the office of Geology and Mining, Haldwani. It is further admitted in said para that he died while he was in service on 05-05-2004. It is also not disputed that peti tioner was given appointment on 19-11-2005 against the post of Peon, after death of his father under U. P Recruit ment of Dependants of Government Servants Dying in Harness Rules, 1974. as is apparent from para 5 of the coun ter affidavit. The ground on which the petitioner's appointment is kept in abey ance and later cancelled and petitioner's services are terminated, is that the peti tioner's father died before his final allo cation to the successor State after divi sion of the State of Uttar Pradesh, un der U. P Reorganisation Act, 2000. In this connection it is further stated in Para 9 of the counter affidavit that the State Advisory Committee had taken a deci sion that till the final allocation of de ceased employee to either of the States no appointment on compassionate ground can be made.
(3.) BUT the counter affidavit is silent as to what prevented the authorities con cerned from allocating the employee (Sri Ganga Singh Bora, father of the peti tioner) either of the successor States. The communication made by the State Advisory Committee has no force of law under Section 73 of the U. P Reorgani sation Act, 2000 as it is not an order passed by Government of India. This Court is of the view that neither a dead person could have been allocated new successor State (as against the State where he was working) nor could have a dead person joined his duties in such other successor State. As such the con tention of learned counsel for the respondents is misconceived that because of non-allocation of new successor State , by the Government of India to Sri Ganga Singh Bora, father of the peti tioner, petitioner's appointment could not have been considered on compas sionate ground by the State of Uttarakhand. In this connection, this Court thinks it just and proper to men tion the provisions contained in Section 75 of U. P Reorganisation Act, 2000 : "75. Provisions as to continu ance of officers in same post.- (1) Every person who, immediately be fore the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Uttar Pradesh in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly ap pointed to the post or office by the Government of, or any other appro priate authority in that successor State : Provided that nothing in this section shall be deemed to prevent a compe tent authority, on and from the ap pointed day, from passing in relation to such person any order affecting the continuance in such post or office. " Sri B. K. Gupta, learned counsel for the respondents drew attention of this Court to Section 73 of U. P. Reor ganisation Act, 2000, and argued that every person who was serving with the existing State of Uttar Pradesh shall con tinue to serve the affairs of the State of Uttar Pradesh unless- he is required by general or special order of the Central Government to serve provisionally in con nection with the affairs of the State of Uttarakhand. However, this Court is of the view that said provision does not cover the cases like the present one where the person has died after the crea tion of State, but before the allocation. Now seven years have passed still there is no allocation of deceased Ganga Singh Bora.;