Ashok Kumar Asthana vs State of U.P. and Others

Devi Prasad Singh and Ashok Pal Singh, JJ.—Instant writ petition under Article 226 of the Constitution of India, is against the impugned order of punishment on the ground that the petitioner made appointment on the compassionate ground'' of the dependant of deceased employee who was on work charge basis. The order of appointment was passed in pursuance of U.P. Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974 (in short the Rules). It appears that the petitioner has worked as Executive Engineer Tubewell Division-III, Gorakhpur between 19.8.1996 to 24.9.1998. One Shiv Pujan Sahny, a work charge employee, died in harness. The petitioner appointed the dependant of deceased work charge employee, Smt. Kalawati on the post of Peon In pursuance of the Rules. Treating the appointment made by the petitioner as illegal and as an incident of misconduct, a charge-sheet was served on him. In pursuance of disciplinary proceeding, the inquiry officer submitted report with the finding that the petitioner has committed misconduct while appointing the dependant of a deceased work charge employee under the Rules. The finding has been recorded by the inquiry officer that the 1974 Rules are not applicable to the dependant of deceased work charge employee. Hence, no appointment could have been made.

While submitting reply to the charge-sheet, the petitioner set up a case that he had made appointment in view of law laid down by this Hon''ble Court in Writ Petition No. 3558 (S/S) of 1992, Suresh Chandra Tiwari and others v. State of U.P. and others. In the case of Suresh Chandra Tiwari (supra), this Court has held that dependants of work charge employees may be appointed under the Rules. A copy of the reply dated 18.6.1995 submitted by the petitioner, has been filed as Annexure-8 to the writ petition.

While assailing the impugned order of punishment, learned counsel for the petitioner submits that not only in the case of Suresh Chandra Tiwari (supra) but also in one other Judgment of this Court delivered in Writ Petition No. 3105 (S/S) of 2006, Gaurav Shukla v. State of U.P. and others, it has been held that dependants of work charge employees may be appointed under the Rules on compassionate ground. Relevant portion from the judgment of Gaurav Shukla is reproduced as under:

Learned counsel for the petitioner has invited attention of this Court towards the judgment in Santosh Kumar Mishra Vs. State of U.P. and Others, , and one another Full Bench Judgment of this Court in Kalyan Dutt Kaushik v. D. M. Hardwar and others, 1999 ACJ 1070 and other, unreported Judgments and orders of this Court passed in W.P. No. 306 (S/S) of 2006 decided on 12.1.2006. W.P. No. 5209 (S/S) of 2004, decided on 17.9.2004 and W.P. No. 4840 (S/S)/2002. decided on 5.9.2002.

From the perusal of the aforesaid judgments and orders of this Court, it is obvious that the dependants of the work charge employees shall also be entitled for appointment on compassionate ground. While rejecting petitioner''s representation by the order dated 25th of March, 2006 the sole ground relied upon by the competent authority is that the dependants of the work charge employees shall not be entitled for appointment on compassionate ground. Prima-facie, the impugned order passed by the opposite parties does not seem to be sustainable under law. While deciding the controversy in question by the impugned order the competent authority had not considered the law laid down in the case of Santosh Kumar Mishra (supra) as well as other cases referred hereinabove. Accordingly, the impugned order is not sustainable under the law and the writ petition deserves to be allowed.

On the other hand, learned standing counsel invited attention of this Court to subsequent judgment of Full Bench of this Court in Pawan Kumar Yadav Vs. State of U.P. and Others, , On account of difference of opinion with regard to rights of dependants of deceased work charge employees, for appointment on compassionate ground, the matter was referred to Full Bench. Para 26 of the judgment of Pawan Kumar Yadav (supra) is reproduced as under:

On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi (supra), we answer the questions posed as follows:

A daily wager and work charge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ''Government servant'' within the meaning of Rule 2(a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules.

The judgments in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Writ Petition No. 24231 of 1998, decided on 2.3.1998, Smt. Maya Devi v. State of U.P.; Special Appeal No. 409 of 1998, State of U.P. v. Maya Devi, Santosh Kumar Misra v. State of U.P. and others. 2001 (4) ESC (All) 1615 and Anju Misra (Smt.) Vs. General Manager, Kanpur Jal Sansthan, giving benefit of compassionate appointment to the dependants of daily wage and work charge employee have not been correctly decided.

A plain reading of Full Bench Judgment (supra) reveals that controversy was referred on account of difference of opinion with regard to rights of dependants of deceased work charge employees. Full Bench overruled the earlier judgment and held that the dependants of work charge employees shall not be entitled to appointment on compassionate ground. It is held that work charge employee does not hold any post whether substantive or temporary hence, provisions contained in the Rules, shall not be attracted. Relevant portion from the judgment of Pawan Kumar Yadav (supra) is reproduced as under;

In Pawan Kumar Yadav v. State of U.P. and others, the Court noticed judgments of this Court taking divergent views in the matter of recruitment of dependants of Government servants, dying in harness, where the deceased employees were either daily wagers or work-charge employees, who were not regularly appointed, and referred the following questions for decision of larger Bench:

(1) Whether a daily wager and work charge employee, employed in connection with the affairs of Uttar Pradesh, who is not holding any post whether substantive or temporary is a ''Government servant'' within the meaning of 2 Rule 2(a) of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974?

(2) Whether the Judgment in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; (Writ Petition No. 24231 of 1998 decided on 2.3.1998), Smt. Maya Devi v. State of U.P., (Special Appeal No. 409 of 1998), State of U.P. v. Maya Devi Santosh Kumar Misra v. State of U.P. and others, 2001 (4) ESC (All) 1615 and Anju Misra (Smt.) Vs. General Manager, Kanpur Jal Sansthan, , giving benefit of compassionate appointment to the dependants of daily wager and work charge employees, have been correctly decided?

The questions were referred by Hon''ble Mr. Justice A.N. Ray, the then Chief Justice on 13.5.2005 to a Bench of three judges. A large number of writ petitions and special appeals filed subsequently, on the same questions were connected, with the reference.

Thus, earlier judgment relied upon by the petitioner has been overruled by the Full Bench of this Court. But the facts remains that the petitioner has acted in pursuance of earlier judgment of this Court. A decision taken in pursuance of judgment of this Court shall not be constituted misconduct. Though, the judgment relied upon by the petitioner, has been overruled by the Full Bench but since at the time when the compassionate appointment was made, the petitioner had applied the existing law, for which he cannot be faulted.

It is always expected from the Government servants that they shall abide by the law laid down by the Courts or higher judiciary. The decision taken in compliance of judgment of High Courts or Supreme Court, shall not be constituted misconduct even if the case relied upon by the officer is overruled at later stage. Accordingly, the punishment awarded to the petitioner, seems to be based on unfounded facts and more so when the petitioner has not committed any misconduct.

It is unfortunate that the inquiry officer has not recorded a finding with regard to defence set up by the petitioner regarding applicability of the judgment of Gaurav Shukla and Suresh Chandra Tiwari (supra), at the time when the appointment was made. Such action on the part of the inquiry officer, seems to be not correct. In view of the above, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. A writ in the nature of certiorari Is issued quashing the impugned order dated 31.1.2007, passed by the opposite party No. 1 as contained in Annexure-1 with all consequential benefits. The petitioner shall be entitled for arrears of salary with other service benefits which shall be provided to him expeditiously say, within a period of three months from the date of receipt of a certified copy of the present judgment. The revision of pay scale shall also be done for the purpose of pensionary benefits as well as arrears of salary.

No orders as to costs.