Allahabad High CourtAjay Kumar Balmiki vs State Of Up Thru. Prin. Secy. Urban ... on 17 July, 2023Bench: Abdul MoinHIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH\n \n \n\n\n?Neutral Citation No. - 2023:AHC-LKO:46437\n \nCourt No. - 7\n \n\n \nCase :- WRIT - A No. - 7878 of 2022\n \n\n \nPetitioner :- Ajay Kumar Balmiki\n \nRespondent :- State Of Up Thru. Prin. Secy. Urban Development Dept. Up Civil Sectt. Lko. And 2 Others\n \nCounsel for Petitioner :- Daya Shankar Yadav\n \nCounsel for Respondent :- C.S.C.,Anil Kumar Tripathi,Satish Chandra Kashish\n \n\n \nHon'ble Abdul Moin,J.1. Heard learned counsel for the petitioner, Sri Rahul Shukla, learned Additional Chief Standing Counsel appearing for respondent no.1 and Sri Anil Kumar Tripathi, learned counsel for respondents no.2 and 3.2. The case had been heard at length on 10.07.2023 wherein the facts of the case and issue before this Court had been summed up. For the sake of convenience, order dated 10.07.2023 is reproduced below:-"Heard learned counsel for the petitioner, Shri Rahul Shukla, learned Additional Chief Standing Counsel for State-respondent as well as Shri Anil Kumar Tripathi, learned counsel appearing on behalf of respondent nos.2 & 3.This case had been heard at length on 07.07.2023 and the following order was passed:-"Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of the State-respondents and Sri Anil Kumar Tripathi, Advocate who files his Vakalatnama today in Court on behalf of respondents no. 2 & 3.Sri Tripathi, Advocate states that he does not intend to file counter affidavit and prays that the matter may be heard and decided finally without filing the counter affidavit.The aforesaid statement is recorded.Under challenge is the order dated 12.09.2022, a copy of which is annexure 1 to the writ petition whereby the claim of the petitioner for compassionate appointment has been rejected on the ground that his father Sri Arjun Prasad Balmiki is working with the Nagar Palika Parishad, Gonda as Safai Nayak.The contention of learned counsel for the petitioner is that his mother was a regular/confirmed employee of the respondent no. 3 who was working as Safai Karmi and she died on 25.07.2020 on account of Covid-19 pandemic. The petitioner staked his claim for the appointment on compassionate grounds which claim has been rejected by means of the impugned order dated 12.09.2022.Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Rules, 1974") categorically provides that in case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the State Government or a Corporation, one member of the family who is not already employed shall be given suitable appointment.The respondents have already considered that as the father of the petitioner is employed in the Nagar Palika Parishad consequently, there would not be any occasion for appointment of the petitioner.Sri Anil Kumar Tripathi, learned counsel appearing on behalf of the Nagar Palika Parishad has placed much reliance on Rule 5 of the Rules, 1974 to contend that once the father of the petitioner is already employed consequently, there cannot be any occasion for appointment of the petitioner.However, learned counsel for the petitioner has drawn attention towards the order dated 11.06.2021 along with the subsequent order dated 02.11.2021 which has been issued by the Director, Local Bodies, Lucknow, copies of which have been filed as annexures 10 & 11 to the writ petition to argue that orders have been issued that where an employee has died on account of Covid-19 pandemic then the dependents would be entitled for compassionate appointment.It goes without saying that the aforesaid orders are to be read in consonance with rules meaning thereby that the aforesaid orders would have to be read along with Rules, 1974 which categorically provides that in case any of the spouse of the deceased employee is working then the dependent would not be entitled for compassionate appointment. Thus, the aforesaid orders would have no effect and would obviously not surpass or supersede the Rules 1974.However, learned counsel for the petitioner prays for some time to study the matter. As such, on his request, list this case on 10.07.2023 At 0215 PM for further hearing showing the name of Sri Anil Kumar Tripathi, Advocate from the side of respondent."Today learned counsel for petitioner has argued that the order dated 11.06.2021 appears to have been clearly issued by the Deputy Secretary of the Local Bodies, Lucknow being fully conscious of the Rules 1974 yet considering that a peculiar and unprecedented situation was prevailing at that point of time pertaining to Covid-19 and the employees of the local bodies were put to work despite there being a lock down in the entire country and few of these employees died during discharge of their duties. As such, it was provided that irrespective of anything contained in the 1974 Rules and the bar as contained under Rule 5 where an employees dies during service, one of his legal heirs will be given compassionate appointment. He argues that the order being a beneficial piece was issued for the benefit of the legal heirs of the deceased employee and could be read despite existence of the bar contained in 1974 Rules.Before proceeding further with the case, it would be expedient to have written instructions from the respondent no.1 as to whether with the issuance of the order dated 11.06.2021, a copy of which is annexure no.10 to the writ petition, and also with the issue of order dated 09.06.2021, the intent of 1974 Rules were considered i.e. not giving the compassionate appointment in those cases where one spouse is already working or the intent from the order dated 11.06.2021 was to provide compassionate appointment in all circumstances where an employee died during Covid-19.For this purpose, the learned Additional Chief Standing Counsel is required to get written instructions from the respondent no.1 within 3 days.List this case on Monday, i.e., on 17.07.2023 at 02.15 P.M. for further hearing."3. Today Sri Rahul Shukla, learned Additional Chief Standing Counsel, states that he has received written instructions from respondent no.1 per which in paragraph 6 it has been indicated that the order dated 11.06.2021 itself provides that the appointment on compassionate ground be made as per the rules. He contends that it is thus obvious that the rules governing grant of compassionate appointment are Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. As per the said instructions, it has been categorically stated that the Rules, 1974 have neither been relaxed nor superseded and consequently it is the Rules, 1974 which still continue to hold good.4. The said statement of Sri Rahul Shukla, learned Additional Chief Standing Counsel, on the basis of written instructions dated 16.07.2023 is recorded.5. From perusal of the detailed order dated 10.07.2023 as well as the statement of Sri Shukla on the basis of written instructions it emerges that although the mother of the petitioner died during COVID-19 yet as the father of the petitioner was employed in Nagar Palika Parishad consequently keeping in view the bar contained in Rule 5 of the Rules, 1974 the petitioner would not be entitled for compassionate appointment.6. Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the writ petition is dismissed.Order Date :- 17.7.2023\n \nA. Katiyar