सेवानिवृत्ति तिथि के मध्यरात्रि तक कर्मचारी की मृत्यु होने पर अनुकम्पा के आधार पर नियुक्ति किये जाने के सम्बन्ध में माo हाईकोर्ट का ऐतिहासिक फैसला। आर्डर की प्रति देखें । - UP Government Shasanadesh (GO) : शासनादेश उत्तरप्रदेश,Government Order, UPGO
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    रविवार, 11 अक्तूबर 2015

    सेवानिवृत्ति तिथि के मध्यरात्रि तक कर्मचारी की मृत्यु होने पर अनुकम्पा के आधार पर नियुक्ति किये जाने के सम्बन्ध में माo हाईकोर्ट का ऐतिहासिक फैसला। आर्डर की प्रति देखें ।

    सेवा निवृत्ति तिथि के मध्यरात्रि तक कर्मचारी की मृत्यु होने पर अनुकम्पा के आधार पर नियुक्ति होने के सम्बन्ध में माननीय उच्चतम न्यायालय का ऐतिहासिक  आदेश।
    HIGH COURT OF JUDICATURE AT ALLAHABAD
    Judgment reserved on 07.09.2015
    Judgment delivered on 29.09.2015
    Case :- WRIT - A No. - 5422 of 2013
    Petitioner :- Ram Pal
    Respondent :- Up Power Corp.Ltd. Lko Thru Secy.And Ors.
    Counsel for Petitioner :- P.N.Tripathi
    Counsel for Respondent :- Nripendra Mishra,SC
    Hon'ble Mahesh Chandra Tripathi,J.
    Heard Shri P.N. Tripathi, learned counsel for the petitioner;
    learned Standing Counsel for the respondent no.1 and Shri
    Nripendra Mishra, learned counsel for respondent nos.2 and 3.
    By means of present writ petition, the petitioner has prayed for
    following reliefs:-
    "(a) Issue a writ, order or direction in the nature of certiorari
    quashing the impugned order dated 27.07.2011 passed by
    respondent no.2.
    (b) Issue a writ, order or direction in the nature of mandamus
    commanding the respondents to provide appointment to the
    petitioner under Dying-in-Harness Rules at an early date, in
    accordance with law."
    It appears from the record that the mother of the petitioner
    was working as a Petrolman in the office of Vidyut Vitran
    Upkhand-II at 33/11 K.V. Bandawar. She retired on attaining
    the age of superannuation on 30.04.2011. On the last date of
    her working i.e. 30.4.2011 she sufferred from heart attack as a
    result of which she died at 7.00 p.m. on the same date.
    The petitioner passed his High School Examination in the year
    1998; Intermediate Examination in 2001 and Graduation in the
    year 2004. Being a dependant, the petitioner made an
    application for appointment in place of her mother under
    Dying-in-Harness Rules before the respondent no.2 on
    14.5.2011. It is submitted that under the law the mother of the
    petitioner shall be treated in service upto to 24.00 Hours on
    30.04.2011.
    The respondent no.2 vide impugned order dated 27.7.2011
    rejected the application of the petitioner for appointment
    under Dying-in-Harness Rules on the ground that since the
    mother of the petitioner died on 30.4.2011 after retirement
    ceremony, the petitioner shall not be given any appointment
    under the Rules. It is averred that the finding recorded by the
    respondent no.2 in the impugned order dated 27.7.2011 that
    the mother of the petitioner died after retirement ceremony is
    absolutely incorrect and no such ceremony was conducted as
    alleged in the impugned order dated 27.7.2011. The mother of
    the petitioner faced heart attack on 30.4.2011 while she was
    in service and she was hospitalized where ECG etc. was
    conducted but she died about 7.00 p.m. on 30.04.2011.
    Admittedly the petitioner's mother died on 30.04.2011 at about
    7.00 p.m. on account of heart attack, she shall be treated in
    service on 30.04.2011 upto 24.00 Hrs.
    The impugned order dated 27.7.2011 was received by the
    petitioner through registered post in the Month of August
    2011. The financial condition of the petitioner was not good.
    He somehow arranged for money and thereafter he could be
    able to engage a counsel. The delay in filing the writ petition is
    bonafide and the same may kindly be condoned.
    Learned counsel for the petitioner, in support of his
    submissions, has placed reliance on a Division Bench
    judgement of this Court in Mohd. Hussain v. State of U.P. &
    Ors., [2010 (3) ESC 2011 (All) (DB)] decided on 23.3.2010 in
    which Hon'ble Court held that the last date of service has to
    be treated as last working date and as such the next day will
    be the date on which he retires. In that case, the petitioner
    retired as Assistant Engineer, serving in Irrigation Department
    on 30.06.2009. The department, therefore, was wrongly
    treating 30.06.2009 as the date of retirement. This date will be
    the date of last working day and 1.7.2009 will be the date
    from which he retired. The relevant paragraphs of the
    judgment are reproduced as under:-
    "In S.Banerjee Vs. Union of India (supra) followed by the Court,
    the Supreme Court considering the matter of retirement of
    Addl. Registrar of the Court relied upon Rule 5(2) of the
    Central Civil Service (Pension) Rules, 1972 providing that the
    date of retirement of the government servant or the date,
    when he has discharged or is allowed to resign from duties is
    to be treated as his last working day. The date of death is also
    treated as last working day provided that government servant
    retires prematurely or voluntarily under Fundamental Rule 56(j)
    to (m) or Rule 48 or 48A as the case may be. The date of his
    retirement shall be treated as non working day. If the date on
    which the government servant retires is treated as last working
    day, the next day will be the date on which the government
    servant retires. In para 6 of the judgment it was held that the
    employees retiring on January Ist, 1986 will be entitled to the
    benefit of para 17.3 of the report of the Pay Commission,
    admitting him to the benefits of the revision in the pay scales.
    Following the aforesaid pronouncement of law, we are of the
    opinion that since the petitioner was retired on 30.6.2009 , his
    last working day shall be treated as 30.6.2009 and that he
    would be retired on 1.7.2009. Since he was to be given benefit
    of one increment according to his date of birth (1.7.1949) , he
    would have retired on 1.7.2009 taking with him the benefit of
    one increment payable to him in 2006 entitled to calculation
    of his pension accordingly.
    The writ petition is accordingly disposed of with a direction to
    the Deputy Director (Pension) to consider the representation of
    the petitioner dated 7.1.2010 in the light of the law laid down
    by the Supreme Court and this Court in the above decision as
    expeditiously as possible, and preferably within a period of
    two months from the date of production of a certified copy of
    this order before him."
    Learned counsel for the petitioner has also placed reliance in
    another Division Bench of this Court in Anjore Singh v. Union
    of India & Ors. [2007 (7) ADJ 273 (DB)] decided on 6th July,
    2007 in which also the Court held that last working day in the
    service of Government servant cannot be the date of
    retirement. The date of retirement would be the next date of
    retirement.
    On the other hand learned counsel for the respondents had
    filed counter affidavit stating that the mother of the petitioner
    working a Petrolman in the office of Vidyut Vitran Upkhand-I at
    33/11 K.V. Bandawar retired on 30.04.2011 at 6.00 p.m. and
    she died after her retirement. He submits that as the mother of
    the petitioner had died after retirement, the claim of the
    petitioner for compassionate appointment cannot be
    accepted.
    Heard rival submissions, perused the record, and respectfully
    considered the judgements cited at the Bar. The sole
    controversy in this writ petition is to decide whether the
    mother of the petitioner can be treated as a government
    servant till the completion of working hour in the office i.e.
    6.00 p.m. or till the completion of the whole day i.e. 24.00 Hrs.
    of the said date.
    Learned counsel for the petitioner has categorically averred
    that the mother of the petitioner suffered heart attack during
    working hour and due to which she ultimately died at 7.00 p.m.
    It can be said that the cause of death of the mother of the
    petitioner has started during the working hour and ultimately
    she died on account of the same cause. If she died at 7.00
    p.m. due to heart attack, it is difficult to presume that she
    could have attended her farewell. The department had also
    not filed any documentary proof, which shows that she was
    not hit by heart attack during office hours.
    Moreover, considering the judgements cited at the Bar it is
    clear that for the purposes of pension the last working day is
    not the retirement date. The retirement date would be the next
    day of last working day. Therefore, it is clear that the working
    day would be counted till the end of the day i.e. 24.00 Hrs.
    The object of the compassionate appointment is to tide over
    the immediate financial hardships to the dependents of the
    government servant. Such appointments are given on
    compassion and therefore some leniency should also be
    adopted while giving the compassionate appointment. Some
    relaxation is also desirable while giving such appointment. In
    the present case it cannot be said that at 6.00 p.m. the
    financial hardships of the petitioner are genuine and at 7.00
    p.m. the financial hardships of the petitioner are not genuine.
    In the case at hand, the word 'afternoon' would mean upto to
    midnight of 30.04.2011 /01.05.2011. It is true that normally on
    the day of working a Government servant is required to
    handover his charge and work is complete during office hours,
    but legally the status of the concerned person would continue
    to be a 'Government Servant' till the midnight of the last
    working day, since the afternoon would come to an end at
    24.00 Hrs. i.e. end of working day. A Division Bench of this
    Court in Special Appeal No.1056 of 2005 (Sushila Devi v.
    District Collector & Ors.) decided on 6th September, 2005 held
    as under:-
    "From the foregoing discussions, we are of the opinion that for
    the purposes of retirement of a Government servant, the time
    afternoon has to be construed as a time after the noon (12 O'
    clock) till the end of the day (12 p.m.)"
    Hon'ble the Supreme Court in the case of S. Banerjee v. Union
    of India, 1990 LIC 298 has held that the date of retirement
    shall be treated as non working day. If the date on which the
    government servant retires is treated as last working day, the
    next date will be the date on which the government servant
    retires.
    A Division Bench of Hon'ble Mysore High Court in AIR 1967
    Mysore 135, G. Vatsala Rani Vs. Selection Committee has also
    taken the same view and has observed as under:-
    "But in the absence of any such express provision, we think, it
    is well settled that any specified age in law has to be
    computed as having been attained or completed on the day
    preceding the anniversary of the birth day, that is, the day
    preceding the day of calendar corresponding to the day of
    birth of the person."
    The Apex Court approved the aforesaid principle in Prabhu
    Dayal Sesma Vs. State of Rajasthan and another, AIR 1986 SC
    1948 and held as under:-
    "In calculating a person's age, the day of his birth must be
    counted as a whole day and he attains the specified age on
    the day preceding the anniversary of his birthday."
    In view of the aforesaid facts and circumstances, the order
    impugned cannot be sustained and is hereby set aside. The
    writ petition is allowed. The respondents are directed to
    consider the case of the petitioner in view of the observations
    made herein above within three months from the date of
    production of certified copy of this order.
    Order Date :- 29.09.2015
    SP/
    (Mahesh Chandra Tripathi,J.)