Pawan Kulyal And Another vs Uttarakhand And Anther

Sharad Kumar Sharma, J.

The petitioner No. 1 - Pawan Kulyal is the son of late Shri Raghunandan Singh and petitioner No. 2 - Smt. Pushpa Devi is the widow of late Shri Raghunandan Singh, they have filed the present writ petition for the following reliefs:

"(a) Issue a writ, order or direction in the nature of CERTIORARI setting aside and quashing the order dated 14.05.2013 passed by the Respondent No. 2.

(b) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay the amount of pension, gratuity, provident fund, insurance and other dues to the petitioners along with the interest @ 18% per annum on the arrears of the pension, gratuity and other dues till the arrears are paid to the petitioners.

(c) Such other relief be granted which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case and award cost to the petitioners."

The brief facts of the case as pressed by the petitioners in the writ petition is that the late husband of the petitioner No. 2 who was appointed as temporary Tubewell Operator on 08.05.1990 in the Tubewell Division, Haldwani, in the Irrigation Department of the State Government in fact had continued to discharge his duties in the said status till he met with the sad demise on 27.02.2013, while he was in service.

The submission of the learned counsel for the petitioners is and as also pleaded in the writ petition is that the late father of petitioner No. 1 was being paid an equal salary for the service rendered by him since 30.07.1996 as regular Tubewell Operator, and later on whenever there was a revision in the pay-scale of permanent employees, the same was also simultaneously made admissible to him. This plea which has been raised by the learned counsel for the petitioners is for the purposes to project as if the late father of the petitioner No. 1 as a matter of fact was always considered as a regular Tubewell Operator, because of the fact that he was being paid with equal salary as admissible to a regular Tubewell Operator and the revised pay-scale was made admissible to him, and all conditions applied to him was same as that of a regular employee.

This argument of the learned counsel for the petitioners may not be acceptable by this Court for the reason that remittance of a salary equivalent to as it has been paid to a regular employee may not itself grant a status of a regular employee to the late father of the petitioner until and unless there is specific and independent order passed for regularizing his services as against the vacant post available in the Department. Because payment of an equal pay for equal work discharged by an employee is dependant upon the wider principles of equality as enunciated by the provisions contained under Article 39(1)(d) to be read with Article 14 of the Constitution of India.

After the death of his father, the petitioner No. 1 is said to have applied for seeking an appointment on compassionate ground and also an independent claim was raised by the petitioner No. 2 for the post retiral dues.

The respondent No. 2, by the impugned order dated 14.05.2013, which is under challenged in the present writ petition had rejected the claim of the petitioner for compassionate appointment i.e. for relief no. 1, on the ground that since the late father of the petitioner No. 1, was working as a Temporary Tubewell Operator on the date of death, the provisions of Dying in Harness Rules, 1974 will not be applicable to him as the late father of the petitioner No. 1 will not fall to be within the definition of a "public servant" as defined under the Dying in Harness Rules of 1974 and he will not automatically acquire status of permanent employee.

After having heard the learned counsel for the parties, and also after having gone through the ratio as laid down by the Full Bench Judgement of this Court that the dependents of a daily wager/ part time employee cannot put themselves on an equal pedestal as that of a regular employee, so as to bring them within the ambit of definition of a public servant as defined under the Dying in Harness Rules, 1974 so as to make them eligible and entitle them to claim for an appointment under the Dying in Harness Rules, 1974.

The aforesaid ratio stands settled by the Full Bench of this Court as reported in 2012 (1) U.D., 6 in the case of Uttarakhand Van Vikas Nigam and another v. Suresh Chandra Auli.

"13. The Hon'ble Apex Court in the Uttaranchal Jal Sansthan case (supra) had therefore held that daily wage workers do not work on a post and in fact a daily wage employee cannot work on a regular vacancy. The Hon'ble Apex Court in the above case has held as under:-

"19. It is trite law that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance with the constitutional scheme of equality. In view of the Explanation appended to Rule 2 (a), for the purpose of this case we would, however, assume that such regular appointment was not necessarily to be taken recourse to. In such an event sub-clause (iii) of clause (a) as also the Explanation appended thereto would be rendered unconstitutional."

We must understand that though compassionate appointment can be made of a dependant of a deceased Government servant who has died in harness under Rule 5 of the said Rules but such a person who has to be given an appointment must first be a dependant of a "Government servant". Clearly, a daily rated employee is not a Government servant as visualized under the Dying in Harness Rules, and more particularly under Rule 2 (a) (iii). Therefore, he is not eligible for employment under the Dying in Harness Rules. Broad principles on which appointments under the Dying in Harness Rules can be made, have been reiterated by the Hon'ble Apex Court in a catena of decisions.

This Court therefore holds that the dependants of a daily wage employee are not covered under the definition of a "Government Servant" as defined under Section 2 (a)(iii) of the Dying in Harness Rules. Hence, they are not liable to be given employment on compassionate ground under the Rules, irrespective of the numbers of the years such an employee had put in service, prior to his death."

Owing to the above, the relief No. 1, as prayed for in the writ petition for compassionate appointment, cannot be granted. Accordingly, the writ petition, so far as relief No. 1 is concerned, would stand dismissed.

The second relief, which has been sought for by the petitioner is rather with regard to the remittance of pension, gratuity and PPF etc. Since it is a writ in the nature of mandamus and there is no pleading raised in the writ petition that the nature of relief sought for the remittance of the amount due therein was the statutory amount payable to the petitioner No. 2, hence this Court is not in a position in absence of any enforceability of relief to adjudicate upon the factual aspects of the matter pertaining to the entitlement. Hence, as far as relief No. 2 is concerned, the petitioners may submit their representation before the respondent No. 2, who will consider the representation of the petitioners and will pass an appropriate order within a period of six weeks from the date of receipt of certified copy of this order after providing due and adequate opportunity to the petitioners.

Subject to above observations, the writ petition stands partly succeeds.

However, there would be no order as to cost.