Brijesh Kumar Yadav vs State Of Uttarakhand & Others

Lok Pal Singh, J

1) By mean of present writ petition, the petitioner seeks following reliefs, among others:

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.04.2019, passed by respondent no. 2 (contained as

Annexure no. 17 to the writ petition).

ii) Issue a writ, order or direction in the nature of certiorari quashing the G.O. no. 451/XIV-2/2018/7(03)/2018 dated 12.06.2018, Clause 6 (only)

passed by respondent no. 1 (contained as Annexure no. 18 to the writ petition) and the G.O. dated 05.04.2019.

iii) Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to give the compassionate appointment to the

petitioner on the suitable post, ignoring the Clause 6 of G.O. dated 12.06.2018 and G.O. dated 05.04.2019 and pay him full and regular salary without

any technical objection.

2) Brief facts, as narrated in the writ petition, are that the Kichha Sugar Company Ltd., Kichha, District Udham Singh Nagar is the instrumentality of

the State Government and its control and management is under the State Government. It is averred in the writ petition that Yogendra Yadav, father of

the petitioner, was appointed as a Seasonal Chemical Majdoor on 01.01.1997 by the competent authority of Kisan Sahkari Chini Mill Ltd., Gadarpur.

On 29.09.2015, the Gadarpur Unit of Kisan Sahkari Chini Mill Ltd. was closed and the employees working there were transferred to other Sugar Mills

run by the Uttarakhand Sugars. The services of father of the petitioner were transferred to the Kichha Sugar Company Ltd., Kichha (third

respondent). It is further averred that father of the petitioner died in harness on 27.10.2017. A death certificate was issued by the Registrar, Birth and

Death, Salempur, District Deoria (U.P.) in this regard on 16.11.2017.

3) It is averred that on 15.12.2017, brother of petitioner, made an application to the third respondent stating therein that his father Yogendra Yadav

died in harness leaving behind the petitioner and elder son Ajay Kumar Yadav, therefore, compassionate appointment may be provided to his younger

brother for livelihood of family. Notary affidavit was also filed by brother of the petitioner stating that his father died in harness leaving behind two

major sons, therefore, compassionate appointment may be given to his younger brother (petitioner herein) as no other member of the family is in Govt.

job and he has no objection if his younger brother is appointed on a suitable post under compassionate appointment. The petitioner also filed an

application along with notary affidavit on 15.12.2017 narrating the same facts as stated by his elder brother. It is averred in the writ petition that

petitioner is having the eligible qualification of graduation for holding suitable post in third respondent Mill. Petitioner also submitted the medical fitness

certificate dated 28.11.2017 issued by the C.M.S, District Hospital, Deoria (U.P.) in this regard with the third respondent.

4) In the meanwhile, on 11.06.2018, an application under Right to Information Act was made by Sri Rajendra Prasad Kaushal seeking information as

to how may compassionate appointments were made for crushing season 2017-18. In reply to said application, the third respondent gave an

information that five appointment orders were issued to the dependants of the deceased employees in regard to compassionate appointment. It is

contended that the petitioner is eligible educated member in his family to get the compassionate appointment as after the death of the father of

petitioner the family members are facing financial hardship as there is no source of permanent income in the family. It is alleged that petitioner having

the graduation degree and requisite qualification for appointment in place of his father on compassionate ground is entitled to get the appointment on a

suitable post with third respondent as the benefit of scheme of compassionate appointment has already been granted to five other similarly situated

persons, but the request of the petitioner for granting similar benefit is not being considered. It is stated that the post on which father of petitioner was

working has not been filled up till date.

5) It is also averred that on 15.11.2011, the Administrator, Uttarakhand Cooperative Sugar Mills Ltd. wrote a letter to the M.D. of Cooperate Sugar

Mills of Nadehi, Bajpur, Gadarpur and Sitarganj on the subject of granting compassionate appointment to the dependents of deceased employees,

wherein Clause (Kha) specifically states that the compassionate appointment will be given to the dependent of the deceased who had died due to

illness, on priority basis. It is contended that under the R.T.I. Act, Public Information Officer of Bajpur Cooperative Sugar Factory Ltd., Bajpur gave

an information that till the month of January 2018, 90 posts are vacant under the Sugar Wage Board. In another letter issued under R.T.I. Act it has

been stated that total 183 posts are available in Kichha Sugar Company Ltd. It is specifically averred that in similar circumstances, in WPSS no. 592

of 2016, Vipin Vs Secretary, Cane Development and Sugar Industries and others, a coordinate Bench of this Court was pleased to pass an order

dated 18.11.2016 directing the respondents to appoint the petitioner on compassionate ground. Writ petitioners of WPSS no. 898 of 2016, Bishun Dev

Yadav Vs State of Uttarakhand & others and WPSS no. 2360 of 2017 along with analogous WPSS no. 1488 of 2017, Sarla Devi Vs State & others

have already succeeded in getting compassionate appointments in the Sugar Factories under the Uttarakhand Sugars, vide orders dated 15.11.2016

and 18.09.2017 passed by this Court.

6) Since the respondents did not consider the application submitted by the petitioner, he was constrained to file WPSS no. 2874 of 2018, Brijesh

Kumar Yadav Vs State of Uttarakhand & others. A coordinate Bench of this Court vide judgment and order dated 19.02.2019 disposed of the said

writ petition with the direction to the respondents to consider his case and pass appropriate order on the application of the petitioner. It is alleged that

on 16.04.2019, second respondent rejected the application of the petitioner, firstly, on illegal ground that the petitioner is already married, therefore, he

is not the dependent of the deceased employee and, secondly, that by the G.Os. dated 12.06.2018 and 05.04.2019, the compassionate appointment has

been suspended. It is also stated that petitioner personally met respondent nos. 2 and 3 and requested to give appointment to him on compassionate

ground, but to no avail. Hence, present writ petition.

7) Counter affidavit has been filed on behalf of respondent nos. 2 and 3 in which it is stated that father of petitioner was working as seasonal Mazdoor

with the third respondent and died on 27.10.2017. Though death certificate of the father of petitioner issued by Registrar, Birth and Death, Salempur,

District Deoria (U.P.) was produced by the petitioner, but the cause of death has nowhere been disclosed by the petitioner. It is also stated that as per

the policy, if the cause of death is suicide, intoxication or quarrel, the legal heir is not entitled to get the appointment. It is further stated that financial

condition of the sugar mills in the entire State is very poor, which also includes third respondent mill which is in total loss of Rs.314.15 crores, apart

from other liabilities. It is contended that the Govt. of Uttarakhand has issued a G.O. dated 12.06.2018 and as per Clause 6 of said G.O., a ban has

been imposed on the appointments on compassionate grounds in all the sugar mills. Lastly it is submitted that at present only technical posts are vacant

in the sugar mill and the petitioner cannot be appointed on these posts.

8) Rejoinder affidavit has been filed by the petitioner reiterating the averments made in the writ petition. Most of the averments made in the counter

affidavit are also denied. It is stated that the father of the petitioner died a natural death. It is further stated that the ground of financial condition taken

by the respondents is not sustainable, as the financial condition of the sugar mills was the same till April 2018 when five other similarly situated

persons were given compassionate appointment. In reply to paragraph nos. 12, 13 and 14 it is stated that about 200 posts of labour and clerks are

available and the respondents are also engaging casual labourers. It is contended that G.O. dated 12.06.2018 is prospective and has no retrospective

effect, as the father of the petitioner died in October 2017 and the application was made before June 2018. Lastly, it is stated that the respondents

cannot discriminate the petitioner as against the other similarly situated persons who were already appointed on compassionate grounds.

9) Heard learned counsel for the parties and perused the entire documents brought on record.

10) Admittedly, the respondents have given compassionate appointment to several other similarly situated persons in the respondent Sugar Mill. As far

as G.O. dated 12.06.2018 is concerned, the same cannot have the over riding effect upon the statutory rules of 1974. Thus the ban imposed by the

State Government vide G.O. dated 12.06.2018 in not giving appointment to the petitioner under Dying in Harness Rules, 1974 is not legally sustainable.

A Government Order cannot override the statutory provisions of law. Thus, the denial of appointment to the petitioner on this ground is unsustainable.

11) Another ground taken by the respondents is that the petitioner is married son of the deceased, as such, he is not entitled to get appointment under

Dying in Harness Rules. The ground so taken appears to be unsustainable. A married son cannot be said to be non-dependent on his parents. In Indian

culture the marriage is always considered sacrosanct and it is the proud duty of the parents to get their children married irrespective of the fact

whether they are engaged in any business, profession or occupation. The parents always desire that the marriage of their children be solemnized at

appropriate time. By the time the children, especially married son, gets independent income the parents in this country always take care of the married

children along with their extended family. Thus, if a married son succeeds in proving that he is dependent on his parents, then it cannot be said that the

married son cannot be considered as dependent on the parents. Thus, the ground taken by the respondents that the married son is not entitled to get

appointment under Dying in Harness Rules is unsustainable.

12) It is apt to note here that due to the inaction on the part of the respondent authorities, the petitioner was earlier constrained to file a writ petition

before this Court, being WPSS no. 2874 of 2018, Brijesh Kumar Yadav Vs State of Uttarakhand and others, that too despite applications being moved

to the authorities concerned to provide him compassionate appointment. This Court having heard the respective case of the parties was pleased to

direct the respondents to take decision on the representation made by the petitioner. If the respondents were seriously interested to contest the earlier

writ petition, they should have contested the same with full spirit and should not have given a chance to the Court to issue directions to them to decide

the representation so made by the petitioner. Once the writ petition has been disposed of by this Court directing the respondents to take decision on

the representation so made by the petitioner by passing a reasoned and speaking order, the respondents should not have taken a new ground to reject

the claim of the petitioner. This Court has an experience on several occasions that as and when the court issues directions to the authorities concerned

to take decision in appropriate cases and decide the representation by passing a reasoned and speaking order, in most of the cases, the authorities took

decisions unfavourable to the petitioner and in utter disregard to the directions issued by the Court. Such callous attitude of the authorities to sit over

the judgments of this Court as an appellate authority is highly condemnable.

13) The Hon’ble Apex Court in the case of Priya Gupta Vs State of Chhattisgarh & others, (2012) 7 SCC 433, has deprecated such

practice of the authorities. This Court has no hesitation to state that the present case is a glaring example of the callous attitude adopted by the

authorities in rejecting the claim of the petitioner on wholly irrelevant grounds which again appears to this Court that the respondent authorities have no

respect to the directions issued by this Court and they have not only acted in arbitrary and illegal manner, but in a manner foreign to law. Such practice

adopted by the respondents is hereby deprecated.

14) Since this Court has arrived at the conclusion that authorities while rejecting the representation of the petitioner has acted arbitrarily and in a

manner foreign to law, the impugned order dated 16.04.2019 is hereby quashed. The writ petition is allowed. Mandamus is issued to respondent nos. 2

and 3 to give appointment to the petitioner under Dying in Harness Rules, 1974, as per his qualification within a period of three months from the date

of receipt of certified copy of this order.

15) Though it is a case where heavy cost should be imposed on the respondents considering their callous attitude in deciding the representation of the

petitioner, but having considered the fact as alleged in the counter affidavit that the respondent Sugar Mill is running in losses, this Court with great

difficulty has restrained itself from doing so.

16) No order as to costs.