H.L.Gokhale, C.J. - (1.) HEARD Dr. Y.K. Srivastava, learned Standing Counsel in support of this appeal. Mr. Rahul Sripat appears for the respondent.
(2.) THE appellant-State seeks to challenge the order passed by the learned Single Judge whereby the learned Single Judge has allowed the writ petition filed by the respondent herein by an order dated 9.11.2005. THE respondent had sought employment on compassionate ground on the footing that his father was in a regular employment of the State. There is no dispute that the father of the respondent was working as a Tube-well Operator. The only question is whether his employment was part time employment or regular emloyment. The learned Single Judge relied upon a judgment passed in writ petition of Vijay Kumar Yadav v. State of U.P. and others (Writ Petition No. 51469 of 2005) decided on 25.7.2005. The learned Single Judge has quoted from that order wherein it has been held that since the petitioner's father was continuously working for more than three years, he should be deemed to have worked in a regular vacancy and, therefore, would be deemed to be treated as Government servant. On the same analogy, the learned Single Judge has given the benefit to the respondent herein since it was claimed that his father had worked for about 10 years when he died in harness on 21.12.1998. The State has challenged this judgment and order and has relied upon a Division Bench judgment in the case of State of U.P. and another v. Smt. Phoola Dew passed in Special Appeal No. 117 of 2000 decided on 14.7.2000. It is submitted by Dr. Srivastava, learned Standing Counsel for the State of U.P. that this judgment was not considered by the learned Single Judge. He points out that the Division Bench in Special Appeal No. 117 of 2000 examined the relevant rules and also noted that part time Tube-well Operators were to be called as NALKOOP SAHAYAKS in pursuance of Government Order issued on 20.2.1992. The respondent is calling himself as an Assistant Tube-well Operator, which is a translation of the term NALKOOP SAHAYAK. The relevant Government Order in terms says that all these NALKOOP SAHAYAKS are supposed to work for part time and service conditions will be as given in Annexure-2 thereto. This scheme lays down that their working period will be just about 2-1/2 hours and they will be free for their own business after above working hours though they will be available in the village concerned. It was, accordingly, held that the writ petitioner could not claim compassionate appointment on the ground that she was widow of a part time Tube-well Operator who died in harness.
(3.) IT is submitted by Dr. Srivastava, learned Standing Counsel that the respondent's father was not in a regular employment and therefore, could not get any benefit of the rule providing employment to a person under dying in harness scheme. Mr. Rahul Sripat, learned counsel for the respondent, on the other hand, points out that in the counter affidavit before the learned Single Judge, the appellants had accepted that father of the respondent was being paid salary like regular employees. He has relied upon paragraph 12 of the counter affidavit filed by the State before the learned Single Judge, which mentions that "The father of the petitioner was being paid salary like regular employee pursuant to order of this Hon'ble Court." Thus, it is clear that pursuant to an order passed in some other proceedings, the father of the respondent was being paid regular salary. This cannot take the case of the respondent any further.;