SNEH LATA Vs. STATE OF U P

JUDGEMENT

(1.) -Heard learned counsel for the petitioner and learned counsel for respondent No. 4 Shyam Behari Agrawal in Writ Petition No. 1913 of 2000 and Sri Ramesh Upadhyay learned counsel for the petitioner Sri Shyam Behari Agrawal in Writ Petition No. 4342 of 2000 as well as learned counsel for the respondents.

(2.) IN Writ Petition No. 1913 of 2000 the order dated 28.12.1999 (Annexure-1 to the writ petition) passed by Chairman/Manager, Nagar Palika Parishad Kosi Kalan, Mathura is under challenge whereby the petitioner working as a clerk in Nagar Palika INter College Koshi Kalan was reverted to her original post of Toll Moharrir and in her place Shyam Behari Agrawal has been directed to resume the charge. Further prayer has been made for payment of arrears of salary to the petitioner to the post of clerk w.e.f. September, 1999 and for regularization to the post of clerk.

(3.) IT appears that a post of clerk had again fallen vacant in Balika Inter College, Mathura and the advertisement was published on 19.11.1998 to fulfil the post. The petitioner again submitted representation to the Sub-divisional Magistrate against the said post enclosing the appointment order dated 18.4.1988 passed by the Commissioner, Agra Division. In reference thereto the petitioner was given a temporary promotional appointment. IT appears that on the death of one Sri Subhash Chandra Agrawal on 17.10.1988, Sri Shyam Behari Agrawal, respondent No. 4 born on 18.5.1979 was about 11 years old and in his matter the Nagar Palika had resolved on 4.1.1989 to appoint him to the post of clerk in Nagar Palika Parishad after attaining the age of majority he would be appointed to the post of clerk and when Sri Shyam Behari Agrawal became major he filed representation before the Commissioner for getting appointment on compassionate ground and when no decision was taken by the Commissioner, he filed Writ Petition No. 24732 of 1999, Shyam Behari Agrawal v. District Inspector of Schools, Mathura and others, where Smt. Sneh Lata, petitioner of Writ Petition No. 1913 of 2000 was not made a party and some other person Indra Parashar, Tax Collector was made party in the writ petition. However the Writ Petition No. 24732 of 1999 was disposed of by an order dated 15.6.1999 by this Court directing the respondents to decide the representation of the petitioner by a speaking order. In reference to the order dated 15.6.1999 it appears that the Commissioner by its order dated 2.8 1999 directed to appoint Sri Shyam Behari Agrawal to the post of clerk and in reference thereto the Chairman/Manager, Nagar Palika Balika Inter College, Kosi Kalan, Mathura has appointed Sri Shyam Behari Agrawal to the post of clerk on 19.8.1999. Consequent upon, the petitioner Smt. Sneh Lata was to be reverted back from the post of clerk to the post of Toll Moharrir in view of the order dated 28.12.1999. This Court by an interim order dated 13.1.2000 stayed the impugned order dated 28.12.1999. In these circumstances the order dated 19.8.1989 was recalled by the order dated 18.1.2000 (Annexure-4 in Writ Petition No. 4342 of 2000) and this Court by its order dated 3.2.2000 however, has stayed the order dated 18.1.2000 recalling the appointment of Sri Shyam Behari Agrawal as a clerk. In these circumstances, the petitioner Smt. Sneh Lata was forced to work as a Toll Moharrir and Sri Shyam Behari Agrawal had started working as a clerk. According to the learned counsel for the petitioner, Smt. Sneh Lata was given appointment on compassionate ground on the death of her father and she was also assured by order dated 18.4.1989 that whenever the vacancy would be available, she would be given appointment to the post of clerk. Since initially she was appointed on her own right to the post of clerk, however she was subsequently given an appointment to the post of Toll Moharrir/Toll Lekhak but she was appointed by way of promotion on 5.1.1989 on the death of Sri Subhash Chandra Agrawal, the father of Sri Shyam Behari Agrawal. The appointment as a clerk by order dated 5.1.1989 (Annexure-6 to the writ petition) is the appointment of permanent nature and the petitioner was not to be reverted back without observing the due procedure of law moreso, for accommodating Sri Shyam Behari Agrawal, respondent No. 4 who at the time of death of his father on 17.10.1988 was minor, i.e., only 11 years of age as his date of birth was 18.5.1979 as indicated in (Annexure-4 to the writ petition) in the High School Certificate in Writ Petition No. 4342 of 2000 and in the resolution No. 3 dated 4.1.1989 of Nagar Palika making reservation in favour of the Shyam Behari, for making appointment in future cannot be legally sustainable under the compassionate ground under U. P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974.