DEEPAK KUMAR MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Anil Kumar Mishra, learned counsel for the petitioner and learned Standing Counsel representing the respondents No.1 to 5. It emerges from the record that the petitioner's father late Sri Ganga Ram Misra was working as constable in police department. The document placed on record further reveals that constable late Sri Ganga Ram Misra was suffering from acute depression and neurosis . In the year 1983 and 86, the Medical Officer, Police Hospital, Sitapur with a communication to Chief Medical Officer, Sitapur has recorded the same opinion regarding mental and physical status of the petitioner's father late Sri Ganga Ram Misra. The record further reveals that in the year 1993 the petitioner's father late Sri Ganga Ram Misra was posted in district Varanasi and there was mention of his absence from his duties. The relevant entries recorded in the police lines Varanasi has also been placed on record. The record further reveals that a departmental enquiry was conducted against petitioner's father late Sri Ganga Ram Misra and as a result of the enquiry he was dismissed from service by S.S.P. Varanasi vide order dated 21.7.95. In this order the said constable late Sri Ganga Ram Misra was shown under suspension. The subject matter of accusation indicated in the order of dismissal was that the petitioner's father late Sri Ganga Ram Misra remained unauthorisedly absent from duties from 16.10.1993. After suspending the petitioner's father late Sri Ganga Ram Misra regular enquiry was conducted and it appears that Ashutosh Pandey, Assistant Superintendent of Police, Varansi was entrusted to hold departmental enquiry against the petitioner's father late Sri Ganga Ram Misra. There is a mention in the enquiry report about the issuance of notice dated 20.6.95 and since no reply to show cause notice was submitted, the appointing authority has passed the order of dismissal. After this event of dismissal on 21.7.95, the record further reveals that the Chief Medical Superintendent, District Hospital ,Rae Bareilly had issued a death certificate on 24.5.04 indicating therein that late Sri Ganga Ram Misra s/o Jagdish Narayan aged about 40 years was admitted in district hospital on 2.6.2002 is as a patient of and he expired on 3.6.02. This Court can take note of the fact that the petitioner's father late Sri Ganga Ram Misra had expired on 3.6.2002 at district hospital, Rae Bareilly. A series of litigation started by filing a writ petition no.42787 of 2004-Deepak Kumar Misra Vs. State of U.P.& others which was disposed of by this Court with a direction to decide the representation. When no decision was taken on his representation, he filed contempt petition No.2677 of 2005. Thereafter, the representation was disposed of by rejecting the claim of the petitioner. In another writ petition No.10942 of 2006 filed by the petitioner, a direction was made to make available copy of the order of removal dated 21.7.95 to the petitioner. When the said direction was not complied with, the petitioner again approached this Court by filing the contempt petition no. 4274 of 2006.This writ petition was disposed of vide judgment rendered on 12.10.2006. This writ petition was disposed of on 8.1.2006. It has been indicated in this order dated 8.1.2006 that in fact late Sri Ganga Ram Misra petitioner's father a constable of police department was dismissed from service as a result of departmental enquiry conducted in the relevant rules of 1991 on 21.7.95. He had died after 7 years of issuance of dismissal order , i.e.21.7.1995. Thus the DIG (Establishment), Police Head Quarter, Allahabad has informed the petitioner that since his father late Sri Ganga Ram Misra had died on 3.6.2002, that is, much after order of dismissal dated 21.7.95, he was not in active service on the date of his death. In view of this fact he was not entitled for compassionate appointment under the dying-in-harness rules and the representation was accordingly dismissed. Thereafter in the contempt proceedings, that is, contempt petition No. 4274 of 2006, an order was passed on 12.10.2006 that order dated 21.7.95 be made available to the petitioner's counsel. Another writ petition was filed by the petitioner in this Court which was registered as writ petition No.10942 of 2006 which was also dismissed on 2.2.2006. In this writ petition the petitioner has challenged the order of dismissal issued on 21.7.95 and also sought declaration that the service of the petitioner's was illegaly brought to an end. The order passed by this Court on 22.2.2006 is quoted below: "HEARD learned counsel for the parties. The application of the petitioner for compassionate appointment has been rejected after recording a finding that the father of the petitioner had been dismissed on 21st July, 1995. Learned counsel for the petitioner submits that in order to get effective reliefs, it is necessary for the petitioner to challenge the order dated 21st July, 1995 and to seek a declaration that the services of the father of the petitioner were illegally brought to an end. In that regard the petitioner made an application for supply of the order dated 21st July, 1995. However, the copy of the said order has not been supplied to the petitioner till date. In the facts and circumstances of the case, no effective relief can be granted to the petitioner, so long as the order dated 21st July, 1995 stands on record, however, it is always open to the petitioner to seek such relief, as may be permissible under law, against the order dated 21st July, 1995 and to get his right for compassionate appointment declared by a Competent Court of law and for the said purpose it is but necessary that a copy of the order dated 21st July, 1995 be supplied to the petitioner. In such circumstances, the present writ petition is dismissed with a direction upon respondent no.2 to supply a copy of the order dated 21st July, 1995 to the petitioner, within two weeks from the date a certified copy of this order is filed before him. On receipt of the order dated 21st July, 1995 it shall be open to the petitioner to get his right for compassionate appointment determined by a competent court of law in accordance with law." It appears that this writ petition has been filed after dismissal of his second writ petition by this Court. I have gone through the material on record and heard Sri Anil Kumar Mishrar, learned counsel for the petitioner at length. Learned Standing Counsel has also put forth his version highlighting various submissions made in the counter affidavit. The record reveals that the petitioner's father late Sri Ganga Ram Misra was dismissed from service on 21.7.95. No one had challenged this order of dismissal within a reasonable period. Everyone remained quiet. Late Sri Ganga Ram Misra has died on 2.6.2002 in Government Hospital, Rae Bareilly. This Court has noted that the petitioner Deepak Misra, son of late Sri Ganga Ram Misra is resident of village and post Bara, P.S. Deeh, district Rae Bareilly. Even after death of his father, i.e., late Sri Ganga Ram Misra no challenge was made to the order of dismissal issued on 21.7.95 or similarly no claim has been preferred seeking compassionate appointment after 2002. For the first time this Court was approached in the year 2004 by filing the aforementioned writ petition. As is evident from the record that the order dated 21.7.95 was not challenged by any of the family members or close relatives including son of late Sri Ganga Ram Misra. Till the order dated 21.7.95 subsists which is in the nature of dismissal , no one can claim compassionate appointment under the Dying-in-Harness Rules . This order was effective at the time of the death of the petitioner's father late Sri Ganga Ram Misra. The dismissal order dated 21.7.95 has now again been challenged after 14 years at the belated stage. The petition as for as this relief is concerned is highly belated and suffers from delay and laches. This Court while dealing with writ petition no.10942 of 2006 wherein the order dated 21.7.95 was under challenge has not passed any order in respect of dismissal of the petitioner's father late Sri Ganga Ram Misra. This writ petition infact has been dismissed with same observations. It was left open to the petitioner to pursue his case for appointment under the Dying-in-Harness Rules. As far as the U.P. Dying-in-Harness Rules 1974 are concerned, the provisions are specific and clear. The benefit of compassionate appointment can be given to a ward of a government servant who had died in harness while in active service. Here the petitioner's father had already been dismissed from service on 21.7.95 and the order remained unchallenged till his death i.e.3.6.2002 In this factual matrix he is not entitled for compassionate appointment under the Dying-in- Harness Rules, 1974. Accordingly the writ petition is dismissed.