HIMANI SAXENA Vs. STATE OF U P

JUDGEMENT

(1.) The unfortunate Petitioner who has lost her father and mother both has approached this Court under Article 226 of the Constitution of India, challenging the impugned order dated 9th November, 2006 passed by District Panchayat Raj Aadhikari Bareilly, by which, her appointment made under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules 1974 (herein after referred to as Rules of 1974) has been cancelled. It appears the Petitioner's father was Gram Panchayat Aadhikari and while working he died in harness on 28.8.1996. The mother of the Petitioner has died prior to the death of her father. The Petitioner who was the only daughter of her parents, was minor at the time of death of her father. When she became major, she has applied for compassionate appointment under the Rules of 1974. Pursuant thereto, the Petitioner has been appointed vide appointment letter dated 25th July, 2006 on the post of clerk. Thereafter the Petitioner has joined and started working. But all of sudden, the impugned order (dated 9.11.2006) of cancellation of appointment has been passed on the ground that the Rules of 1974 has been amended in the year 1993 and in view of Proviso to Rule 5 if the application for compassionate appointment is made after expiry of five years then it is the State Government which is competent to relax the period of limitation whereas in this case no such relaxation has been granted by the State Government.

(2.) Sri Pradeep Saxena, learned Counsel appearing for the Petitioner has submitted that the appointment made under Dying in Harness Rules is permanent in nature in view of the Division Bench decision of the Court in the case of Ravi Karan Singh v. State of U.P. and Ors., 1999 3 UPLBEC 2263 and once the appointment has been made, this cannot be cancelled without affording an opportunity of hearing. He has further contended that there was no fault of the Petitioner as she has been throughout fair and nothing has been concealed by the Petitioner when she was appointed, therefore the impugned order should not have been passed. In support of his submissions, he has also placed reliance upon the judgment of this Court in Smt. Sadhna Kumari v. State of U.P. and Ors.,2006 8 ADJ 453 In his submissions, the impugned order deserves to be quashed.

(3.) Refuting the submissions of learned Counsel for the Petitioner, learned standing counsel has submitted that in view of the Proviso to Sub-rule 1 (iii) of Rule 5 of the Rules 1974 if an application for appointment under dying in harness rules is made after expiry of five years then it is the State Government which can relax the period of limitation and in this case, since the appointment has been made without there being any order of the State Government with respect to relaxation of period of limitation therefore infirmity cannot be attached to the impugned order dated 9.11.2006 and the writ petition be dismissed.