VIMLA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) THIS writ petition was entertained on 14.12.2006. Sri Vivek Verma, learned counsel for the respondents was allowed three weeks' time to file counter affidavit. THIS three weeks' period has expired long ago and now the case is being taken for admission today but no counter affidavit has been filed till date. Learned Standing Counsel for Allahabad Development Authority prays for some more time to file counter affidavit. Learned counsel for the petitioner has highlighted the plight of the petitioner who is a widow seeking compassionate appointment under the Dying-in-Harness Rules. Her husband late Surendra was working as Supervisor in the Allahabad Development Authority who has died while in active service on 16.3.2006. Learned counsel for the petitioner submitted that late Sri Surendra was initially appointed on 1.5.1989 and his case for regularisation was considered by the Regularisation Committee in accordance with the resolution passed by the Development Authority Board dated 24.8.02. The State Government had fixed 29.4.1991 as cut off date for the purpose of regularisation of daily wagers working in Development Authority. The petitioner's husband was allowed minimum of the pay scale of Rs.2650- 4000/-. However, it was indicated in the order dated 3.9.2002 that till the posts are not sanctioned, they shall be treated as regular employee. On the basis of this sentence learned counsel for the Development Authority has submitted that the petitioner's husband late Surendra cannot be treated as regular employee. Learned counsel for the petitioner has placed reliance on the judgements of this Court rendered in State of U.P.and others Vs. Panmati Devi and another 2008(7)ADJ 324, Santosh Kumar Mishra Vs. State of U.P.andothers (2002) 1 UPLBEC 337, Chandan Kumar Vs. Registrar, Banaras Hindu University, Varanasi and another 2008(1) ESC 348 and Deen Bandhu Verma Vs. State of U.P.and others 2007(2) ADJ 190 in support of his submission that even the wards of a deceased daily wager, government servant can be considered for appointment if the deceased employee has put in substantial years of serve. Here is a case where the petitioner's husband late Surendra was appointed in the year 1989. He was found fit and suitable for regularisation by a committee constituted for the purpose of regularisation. Due to non-availability of the post for the reasons best known to the State Government, the employees who had rendered substantial period of service could not be regularised. In the meantime, the petitioner's husband died awaiting regularisation. In the present case, the petitioner is a widow who had to maintain 5 daughters out of them two are married and three are still minor. Her husband was murdered at his native place Sadiyabad, Allahabad on the day of Holi. Her family is in a precarious condition and needs support. The petitioner has been waiting for disposal of her case. Specified period allowed for filing counter affidavit has lapsed. Two more years, i.e. 2007, 2008 have gone by. Now the respondents have chosen to file counter affidavit. In the absence of counter affidavit this Court may proceed on the basis of assertions made in the writ petition, which remained un-controverted till date in view of the decision of Hon'ble Supreme Court reported in (1) Choksi Tubes Co. Ltd. vs. Union of India (1997) 11 S.C.C. 179 and Nasim Bano vs. sState of U.P. and others (A.I.R. 1993 S.C. 2592). In these cases Hon'ble Supreme Court has laid down the law that where a plea taken is not controverted and replied, it amounts to admission of the plea. Now the Court will proceed in the peculiar circumstances of the case where a widow having responsibility of five daughters have approached this Court seeking compassionate appointment in the Development Authority to deal with the matter. Sri A.P.Paul holding brief of Sri B.B.Paul, learned counsel for the Development Authority has submitted that the petitioner was not entitled for compassionate employment under the Dying-in-Harness Rules. He has laid much stress on the administrative order dated 17.6.2006 through which the petitioner was not found entitled for the benefits arising out of Dying-in-Harness Rules, 1974. He has also highlighted the words contained in the letter dated 3.9.02 issued by the Secretary, Allahabad Development Authority that the petitioner's husband late Surendra shall not be treated as a regular employee. THIS Court must consider the words contained in the letter dated 3.9.2002. I have heard learned counsel for the parties and perused the record. THIS Court has taken note of the fact that the petitioner's husband was engaged in service as daily wager in the year 1989. He had continued uninterrupted till 29.6.91, the cut off date fixed by the State Government for the purpose of regularisation in the services of the Development Authority. The Board of Development Authority has resolved on 24.8.2002 to consider the case of daily wager for regularisation. A committee was constituted. The committee has considered the case of the petitioner's husband for regularisation and he was allowed minimum pay scale of Rs.2650-4000/-. A substantial order has been passed in the service career of the petitioner's husband by allowing him minimum regular pay scale. These facts lead to infer that late Surendra was found fit for regularisation and if the post would have been sought by the Allahabad Development Authority or would have been created by the State Government till his death, he would have been regularised in service. There is no fault of petitioner widow of a daily wager of Allahabad Development Authority. She have been pursuing hard for getting compassionate appointment. Her case has been rejected on the technical ground. In several cases some of which have been brought to the notice of Court, this Court has held that if a daily wager has put in substantial years of service his case could not be excluded from consideration. In the present case, the petitioner's case was duly considered by a Committee and he was found fit and suitable for regularisation and communication to this effect was admittedly issued by the Secretary, Allahabad Development Authority. Accordingly, I direct the Vice Chairman to give a fresh look to the matter, call for record and reconsider the matter of the petitioner for compassionate appointment in the light of the aforesaid decisions and the decision taken on 3.9.2002. The Vice Chairman, Allahabad Development Authority shall also consider the peculiar circumstances of the petitioner's family where a widow has to maintain three unmarried daughters. They have to be sustained in life and to be married by her. In such case harsh and technical view cannot be taken and is not appreciated by this Court. Appropriate decision may be taken within a period of three months from the date of production of a certified copy of this order. With the aforesaid observations, the writ petition is finally disposed of.