WRIT PETITION NO. 431 (SS) OF 2005 v. State of Uttaranchal, through Home Secretary Dehradun

Judgment

1. 2. Director General of Police (Karmik) Dehradun. 3. Senior Superintendent of Police, Dehradun. ………….Respondents. Sri S.S. Yadav, Advocate for the petitioner. Learned Standing Counsel for the State. Dated : 27.02.2006 Hon’ble Rajesh Tandon, J. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 29.03.2005 (Annexure No.1 to the writ petition) and for a mandamus directing the respondents to give a suitable job to the petitioner according to his qualification under dying in harness rules.

Brief facts giving rise to the present writ petition are that the real elder brother of the petitioner was recruited in Civil Police Uttaranchal in the year 2001 and he was performing his duties with utmost satisfaction according to his posting, but on 9th October, 2002 while he was on V.I.P. duty, unfortunately during his duty in incident took place and he died while he was on duty.

3. The mother of the deceased preferred a representation for the compassionate appointment for the unmarried son i.e. petitioner but the same was not disposed of.

4. Therefore, the petitioner filed a Writ Petition NO. 794 (SS) of 2004, which was disposed of on 3rd March, 2005 and a 2 direction was issued for taking the decision on the application filed by the petitioner for compassionate appointment.

5. The said representation has been rejected vide order dated 29th March, 2005 stating that under the Dying in Harness Rules 1974, there is no such provision to given the compassionate appointment the unmarried deceased’s brother and therefore, the petitioner is not entitled for being given compassionate appointment.

6. The ground for cancellation has been shown only on the basis of the cancellation of G.O. dated 31st October, 2002, but when the benefit given to the deceased brother has been withdrawn.

7. The said G.O. was made applicable so far as the appointment of the petitioner is concerned under the dying in Harness Rules. The said Rules is quoted below:- “Hkkjr ds lafo/kku ds vuqPNsn 309 ds ijUrqd }kjk iznRr 'kfDr;ks a dk rFkk rnFkZ leLr vU; leFkZdkjh 'kfDr;ka dk iz;ksx djds jkT;iky lsok dky es a e`r ljdkjh lsodks a ds vkfJrks a dh HkrhZ dfks fofu;fer djus ds fy, fuEufyf[kr fo’ks"k fu;ekoyh cukrs gS a%&& mRrjkapy lsok dky esa e`r ljdkj lsodksa ds vkfJrksa dh HkrhZ fu;ekoyh 2002 1- ¼1½ ;g fu;ekoyh mRrjkapy lsokdky es a e`r ljdkjh lsodks a ds vkfJrks a dh HkrhZ fu;ekoyh 2002 dgyk;sxhA ¼2½ ;g rqjUr izo`Rr gksxhA 2- tc rd fd lanHkZ ls vU;Fkk visf{kr u gks] bl fu;ekoyh ea s %&& ¼d½ ljdkjh lsod dk rkRi;Z mRrjkapy ds dk;Zdyki ds lEcU/k es a lsok;ksftr ,sls ljdkjh lsod ls gS tks& ¼1½ ,sls lsok;kstu esa LFkk;h Fkk; ;k ¼2½ ;|fi vLFkk;h gS rFkkfi ,sls lsok;kstu es a fu;fer :i ls fu;qDr fd;k x;k Fkk; ;k 3 ¼3½ ;|fi fu;fer :i ls fu;qDr ugha gS] rFkkfi ,sls a es a fu;fer fjfDr es a rhu o"kZ dh fujUrj lsok dh lsok;kstuks gSA Li"Vhdj.k%&& fu;fer :i ls fu;qfDr dk rkRi;Z ;FkkfLFkfr in ij ;k lsok es fu;qfDr fd;s tkus ls gS%& a HkrhZ ds fy;s vf/kdfFkr izfd;k ds vuqlkj ¼[k½ e`r ljdkjh lsod dk rkRi;Z ,sls ljdkjh lsod ls gS ftldh e`R;q lsok es a jgrs gq, gks tk;s aA ¼x½ dqVqEc ds vUrxZr e`r ljdkjh lsod ds fuEufyf[kr axs%&& lEcU/k gks ¼1½ ¼2½ ¼3½ vfookfgr iqf=;ka rFkk fo/kok iqf=;ka e`r ljdkjh lsod ij ¼4½ iRuh ;k ifr] iq= HkkbZ] vfookfgr cfgu vkSj fo/kok ekrk] ;fn e`r ljdkjh lsod vfookfgr FkkA” 8. The aforesaid Govt. Order was cancelled on 31st October, fuHkZj vfookfgr

2002. The ground mentioned in the aforesaid cancellation order shows that the Dying in Harness Rules, 1974 has already been made applicable from 23rd August, 2002 in the State of Uttaranchal.

9. The submission of the petitioner that his brother died on 9th October, 2002 and State of Uttaranchal issued Dying in Harness Rules on 31.08.2002 and the G.O. was cancelled on 31st October, 2002 but in the aforesaid rejection order dated

29.03.2005 according to the petitioner the respondents have taken the plea that the petitioner does not fall in the definition of family as defined in U.P. Dying in Harness Rules, 1974 but at the time of deciding the representation of the petitioner the respondents have committed a gross negligence because the petitioner’s brother died on 9th October, 2002 and the Uttaranchal Dying in Harness Rules, 2002 came in existence on 31st August, 2002 and it was cancelled by notification no. 1495/2002 dated 31.10.2002, therefore, the petitioner’s case 4 comes under the Uttaranchal Dying in Harness Rules 2002 because at the relevant time the Uttaranchal Dying in Harness Rules 2002 was in operation.

10. The petitioner therefore, submits that the cause of action had already accrued to him before the cancellation of the G.O. dated 31st August, 2002 and therefore, he is entitled for the benefit of the said G.O. The respondents have treated this G.O. having been withdrawn and have not treated the petitioner to be entitled for compassionate appointment.

11. It may be pointed out that the notification dated 31st October, 2002 being not in conformity with the Rules of the Uttaranchal (Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974) Adaptation and Modification Order, 2002, which has been adopted by the State of Uttaranchal, therefore, the same cannot be made applicable in t he case of the petitioner.

12. In view of the aforesaid facts and circumstances, the order dated 29.03.2005 requires reconsideration in accordance with the rule applicable at the relevant time.

13. In the light of the aforesaid facts and circumstances, a writ of certiorari is issued quashing the order dated 29.03.2005 (Annexure NO.1 to the writ petition) and the respondents are directed to reconsider the claim of the petitioner. The matter is sent back to the respondent no. 2 to pass the order in accordance with the rules within two months from the dated of presentation of the certified copy of the order.

14. Writ petition is allowed. No order as to costs. (Rajesh Tandon, J.)

20.02.2006 Rathour