Kumari Kavita Sharma vs State of U.P.

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

Late Onkar Nath Sharma. father of the petitioner died in harness on 18.6.1989. The petitioner applied for appointment under the U.P. Recruitment of Dependents of government Servants (Dying in Harness) Rules, 1974 and was appointed on the post of temporary Junior Clerk vide order dated 22.2.1990. Thereafter, her services have been terminated on 6.9.1990 on the ground of her being underage by lour months at the time of her appointment.

Counsel for the petitioner submits that appointment under U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974 is permanent in nature and services of an employee appointed under the aforesaid Rules cannot be terminated without any prior notice or opportunity of being heard.

Counsel for the petitioner informed the Court that the petitioner has been in continuous service till date on the strength of interim order dated 11.10.1990 passed by this Court. It is submitted that the petitioner having been appointed under the provisions of U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974, she shall be treated to be permanent employee as has been held in paragraph 9 of the decision in Kamlesh Kumar Pawky v. State of U.P. and Anr. 2001 (4) ESC 1612, which is quoted below:

The second submission of the petitioner is that petitioner should not be treated as a ''temporary employee'' on the basis of his appointment letter dated 18.4.2000 (Annexure 6 to the writ petition). The contention of the petitioner has substance and deserves to be accepted for the following reasons:

The appointment letter itself shows that petitioner was offered appointment on the probtation of one year. Earlier recital in the appointment letter to the effect that petitioner''s services were temporary and liable to be determined without prior notice gets nullified by subsequent recital providing for appointment on probation. Even otherwise, it is well setted through several decisions of this Court that appointment under Dying in Harness Rules on compassionate ground should not be for short term or on temporary basis. This Court has held time and again that compassionate appointee is not to be left on the mercy of the authorities offering employment, refer to 1999 (2) ESC 792 and .199 ALJ 1475.

He further submits that the appointment order dated 22.2.1990 contained in Annexure 1 to the writ petition clearly shows that the Joint Commissioner (Administration) Sales Tax, Lucknow vide his letter dated 6.1.1990 had informed that the petitioner had been given relaxation in age by the Commissioner of Sales Tax.

At the time of entering into service, the petitioner was 17 years and 8 months old. The aforesaid letter further provides that the petitioner was directed to join her duties by 28.2.1990 if the terms and conditions of appointment were acceptable to her. The relevant extract of the appointment letter is as under:

la;qDr vk;qDr �iz''kklu� fcdzhdj] y[ku� us vius Ik= la[;k lh&4 �d� vkfJr HkrhZ @6315 @fcdzhdj fnukaad 6-1-1990 ds }kjk ;g lwfpr fd;k gS fd dqekjh dfork ''kekZ dks jkT; deZpkjh dh fu;qfDr gsrq fu/kkZfjr U;wure vk;q lhek esa vk;qDr fcdzhdj] mRrj izns''k y[ku� }kjk NwV iznku dh xbZ gSA

�5� mUgs blds iwoZ dh xbZ fdlh izdkj dh lsok dk dksbZ ykHk vuqEkU; ugha gksxk A

�6� ;fn mUgs mijksDr ''krksZ ij ;g in Lohdkj gks rks os lEcfU/kr dk;Zky; esa fnukad 28-2-1990 rd viuk dk;ZHkkj xzg.k dj ysa] vU;Fkk ;g le>k tk;sxk fd og bl in dk;Z djus dh bPNqd ugh gS vkSj ;g fu;qfDr Ik= Lor% gh fujLr le>k tk;sxk A

g0 vLi"V �ch-lh-pUnksyk� lgk;d vk;qDr �iz0� fcdzhdj xkft;kckn {ks= ] xkft;kckn

Apart from the fact that the relaxation in age had been granted to the petitioner as she was only four months below the age of 18 years, it may be noticed that under the Factories Act a worker can be induced into service on attaining the age of 14 years. The Petitioner was appointed as Junior appointed as Junior Assistant Clerk and in these circumstances, it cannot be said that she had joined her duties by concealing any material fact(s) or by playing fraud on the department.

In fact, it was clearly offerred by the department that she may join service upto 28.2.90 as she has been granted relaxation in age. The service of the petitioner has, therefore, been illegally terminated in 1990 on the ground of being underage by four months. In any case, she is now more than 18 years of age.

For the reasons stated above, the writ petition succeeds and is allowed. The petitioner shall be entitled to all consequential benefits. No order as to costs.