On account of call of boycott by the Advocates, the learned counsel for the petitioner has not appeared, however, Ms. Sunita Gupta, the petitioner has appeared in person and submitted that her husband died on 05.09.2016, since then, she has been approaching the Competent Authorities and approaching this Court to get justice but she could not get till now.
Precisely, the petitioner has submitted that her husband died in harness after serving more than 26 years of service but any suitable appointment under Dying-in-Harness Rules has not been provided to her for the reason that the services of her late husband were not regularized. Therefore, she submitted that the present writ petition may be decided finally inasmuch as the counter and rejoinder affidavits have already been exchanged.
Considering the aforesaid request of the petitioner, I have heard the petitioner in person and the learned Additional Chief Standing Counsel for the State-respondents.
The order under challenge is 20.06.2018, 06.11.2018 and 28.01.2019 passed by the opposite party No.3, whereby the claim of the petitioner for any suitable appointment under Dying-in-Harness Rules, has been rejected on the sole ground that the services of her late husband could not be regularised, therefore, she cannot be given any appointment under Dying-in-Harness Rules. Copy of all the aforesaid orders have been enclosed collectively as Annexure No.1 to the writ petition.
The precise case of the petitioner is that husband of the petitioner, namely, Sunil Kumar Gupta, was appointed on the post of Tracer on 17.10.1989 by the duly constituted Departmental Selection Committee. In the year 1996, the candidature of some employees including the husband of the petitioner was sent before the Competent Authority for regularisation but since the husband of the petitioner could not produce the required documents in the year 1996, therefore, his claim for regularisation has not been considered. Feeling aggrieved out of that action, the husband of the petitioner filed a claim petition bearing Claim Petition No.1161 of 1996; Sunil Kumar Gupta vs. State of U.P. & others before the State Public Service Tribunal and the said claim petition was dismissed in default on 28.08.2009. Despite the aforesaid claim petition being dismissed for want of prosecution neither any decision has been taken in the case of the petitioner's husband nor he has been disengaged from the service, rather, he was permitted to discharge his duties till his demise on 05.09.2016.
It appears that after his demise on 05.09.2016, the department has recommended the candidature of husband of the petitioner for regularisation on 20.09.2016 indicating the fact that the services of her late husband should have been regularised on 21.10.1997 strictly in accordance with the Regularisation Rules but no appropriate decision has been taken.
I have perused Annexure No.9 of the writ petition, which is a recommendatory letter dated 12.02.2018 issued by the Chief Town & Country Planner of Department of Urban and Rural Planning Department, U.P., wherein each facts and circumstances relating to her late husband, namely, Sunil Kumar Gupta has been indicated. In the said letter, vide para-2, it has categorically been indicated that the services of her late husband should have been regularised on 21.10.1997 but no appropriate order has been passed, therefore, the said authority has recommended that the services of her late husband may be treated as regularised so that the wife of late employee, namely, Sunita Gupta could get any suitable appointment under Dying-in-Harness Rules as she has approached for that to the Departmental Authorities.
The learned Additional Chief Standing Counsel has submitted that no decision has been taken on the aforesaid letter dated 12.02.2018 by the Competent Authority of the State Government.
I have also perused Annexure No.7 of the writ petition, which is a letter dated 12.09.2017 preferred by the same authority addressing to the Competent Authority of the State Government indicating therein that the Committee was constituted to regularise the service of the husband of the petitioner with effect from 21.10.1997 but no decision has been taken, therefore, the request was made from the department to pass appropriate orders in respect of late Sunil Kumar Gupta for regularising his services.
Actually, the State Authorities have not taken any serious initiatives to dispose of the aforesaid applications dated 12.09.2017 (Annexure No.7 to the writ petition) and 12.02.2018 (Annexure No.9 to the writ petition) preferred by the Chief Town & Country Planner, U.P., Lucknow resultant thereof no appropriate decision has yet been taken in the case of late Sunil Kumar Gupta and his wife Ms. Sunita Gupta, the petitioner hereto, is running from pillar to post to get justice.
When the Competent Authority of the State of U.P. was of the view that the services of late Sunil Kumar Gupta should have been regularised with effect from 21.10.1997 when he was very much in service, the appropriate decision should be taken by the State Government with promptness but no such decision has been taken.
I have also perused Annexure No.14 of the writ petition, which is judgment and order dated 01.03.2017 passed by the Division Bench of this Court in the case of State of U.P. and others vs. Kuldeep Thakur reported in [2017 (4) ADJ 94 (DB) (LB)], which clarifies the present controversy inasmuch as in more or less identical facts and circumstances this Court has held that if the deceased employee could have been treated regularised or any appropriate order in respect of regularisation could have been passed but such order could not be passed, even in that case the consideration for compassionate appointment of the ward of the deceased employee may be made. Paras-10, 11 and 12 of the aforesaid judgment are being reproduced here-in-below:-
"10. The consideration of the right of being regularized by operation of law while in force had already accrued in favour of the father of the respondent petitioner, and his death in between further gave rise to the expected consequential claim of compassionate appointment of the petitioner, provided his father's services were declared regular. The consideration of such right, whether had accrued, does not get eclipsed nor could it be abandoned. If the consideration results in the services of the petitioner's father becoming regular, then the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be an impediment for the respondent petitioner to be considered for compassionate appointment. The appellant State and it's authorities therefore cannot escape this exercise and defeat the right of consideration by their inaction or the absence of timely and prompt action. Such exercise of consideration will not evaporate because of untimely death which is a fortuitous circumstance so as to result in any advantage to the State.
11. Apart from this, in the present case those who were at par with the father of the respondents had been extended the benefit of regularization. This distinguishing feature therefore is in addition to the issues involved in the case of Pawan Kumar Yadav (supra) and consequently, the claim of the respondent petitioner was at least entitled for consideration by the State Government in the light of the observations made hereinabove.
Learned counsel for the appellant State submits that the services of the father of the respondent petitioner could not be straight away treated to have been regularized and the learned Single Judge erred in issuing directions for consideration of appointment on compassionate basis of the petitioner. We agree with the submissions of the learned standing counsel for the appellant and to that extent, the judgment cannot be sustained. Learned Single Judge also does not appear to have noted the judgment of Pawan Kumar (supra).
12. Consequently, we modify the judgment dated 22.11.2016 to the extent that it shall be open to the appellant State to consider the status of regularization of the father of the respondent and then proceed to take an appropriate decision with regard to the claim of the respondent petitioner for compassionate appointment in the light of the observations made hereinabove."
Considering the submissions of the petitioner, who appeared in person, and the learned Additional Chief Standing Counsel and the relevant documents which are available on the record, I am of the considered view that the Competent Authority of the State Government should have taken any appropriate decision on the letters dated 12.09.2017 (Annexure No.7 to the writ petition) and 12.02.2018 (Annexure No.9 to the writ petition) preferred by the Chief Town & Country Planner, Urban and Rural Planning Department, U.P., Lucknow considering the compassion of the present petitioner and appropriate decision should have been taken with promptness. Further, since the authority concerned, who has filed the counter affidavit in this case, has himself issued these letters dated 12.09.2017 and 12.02.2018 wherein the fact that for regularisation of the services of late Sunil Kumar Gupta with effect from 21.10.1997 the Committee was constituted and no decisions were taken till the demise of Sunil Kumar Gupta on 05.09.2016, therefore, it would be presumed that the concerning department was of the firm view that the services of late Sunil Kumar Gupta should have been regularised with effect from 21.10.1997. The Division Bench of this Court in re: Kuldeep Thakur (supra) has also dealt with similar controversy and has opined in favour of the employee who is seeking a relief of compassionate appointment, therefore, in the light of the aforesaid facts and circumstances, the impugned orders dated 28.01.2019 and 20.06.2018 are not sustainable in the eyes of law and are accordingly set aside.
A writ in the nature of mandamus is issued directing the Competent Authority of the State Government to consider the status of regularisation of the husband of the petitioner, namely, late Sunil Kumar Gupta and then proceed to take appropriate decision with regard to the claim of the petitioner for compassionate appointment in the light of the observations made here-in-above and pass appropriate orders with expedition preferably within a period of six weeks from the date of production of a certified copy of this order.
In the result, the writ petition succeeds and is accordingly allowed.
No order as to costs.
Order Date :- 22.8.2019 Suresh/ [Rajesh Singh Chauhan,J.]