Court No. - 30 Case :- WRIT - A No. - 48985 of 2007 Petitioner :- Dheeraj Kumar Respondent :- The Director Of Local Body And Another Petitioner Counsel :- S.C. Shukla,Bimal Prasad Respondent Counsel :- C.S.C.,S.C.Srivastava Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner and Sri S.C.
Srivastava, learned counsel for the Nagar Palika Parishad,
Moghulsarai, District Chandauli.
The petitioner has come up with a prayer for quashing the
order dated 28.06.2007 and for a mandamus to appoint the
petitioner on compassionate ground against the vacant post
of his deceased father under the Dying in Harness Rules,
1974.
The question is as to whether the petitioner’s father was
appointed on regular basis or not.
Learned counsel for the petitioner contends that in view of
the Division Bench judgment dated 21.08.1987, the
operative para of the judgment whereof is quoted in
paragraph 18 of the writ petition, the services of the
petitioner’s father will be deemed to have been regularized
and he is entitled to the same benefit as extended by this
Court in the judgment dated 08.02.2000 in Civil Misc. Writ
Petition No. 20507 of 1995. It is further submitted that
several candidates who came later on to the petitioner, have
been accommodated. A counter affidavit has been filed on
behalf of the respondent and it has been categorically
averred that the petitioner’s father was never regularized in
services and, therefore, the question of extending the benefit
under the Dying in Harness Rules does not arise.
Sri S.C. Srivastava, learned counsel for the respondent has
relied on the decision in the case of Smt. Sundari Devi Vs.
State of U.P. and others reported in 2010 (1) LBESR 349,
which is a judgment in relation to a claim by an employer of
another local body namely the Meerut Development
Authority, Meerut. The law in that regard has been explained
in detail.
Learned counsel for the petitioner relies on the decision of
this Court in the case of Deen Bandhu Verma Vs. State of
U.P. and others reported in 2007 (2) ADJ 190 to contend
that the provision of Dying in Harness Rules, 1974 would be
applicable in such circumstances as well.
The question which requires consideration is as to whether
the petitioner would be entitled to get the benefit under the
Dying in Harness Rules keeping in view the status of
employment of the petitioner’s father.
The facts which have been brought on record and also
indicated in the counter affidavit leave no room for doubt that
the petitioner’s father had never been regularized in his
service. In view of that the Rules, 1974 as explained in Smt.
Sundari Devi’s case would not be applicable. So far as, the
judgments relied upon by the petitioner are concerned, the
same do not hold water in view of the law laid down by the
Apex Court in the case of Secretary, State of Karnataka and
others Vs. Umadevi (3) and others (2006) 4 SCC 1.
In view of the aforesaid facts as emerging from the
pleadings, the petitioner, therefore, cannot be extended the
said benefit under the Dying in Harness Rules.
The writ petition lacks merit and is accordingly dismissed.
Order Date :- 26.7.2010
Akv