Satyendra Shukla vs State of U.P. and Another

Rajiv Sharma, J.—Heard learned Counsel for the petitioner and Sri Sanjay Sarin, learned Standing Counsel.

By means of the instant writ petition, the petitioner is assailing the order dated 1.4.2006, passed by the opposite party No. 2 (Annexure No. 1), whereby the representation of the petitioner was rejected on the ground that allegedly the U.P. Dependents of Government Servants (Dying-in-Harness) Rules, 1974 [hereinafter referred to as ''Rules, 1974''] do not apply for the work charge employees, therefore, the petitioner cannot be given appointment in place of his deceased father.

On an objection being raised by the learned Standing Counsel that the father of the petitioner, who is admittedly working in work-charge establishment, cannot be said to be a permanent employee or temporary employee, learned Counsel for the petitioner failed to give reply.

However learned Counsel for the petitioner submits that this Court, in the cases of Bharat v. State of U.P. and Ors. 2005 (23) LCD 332; Satendra Singh v. State of U.P. and Ors. 2005 (23) LCD 333 ; Sunil Kumar Vs. State of U.P. and Others, and Santosh Kumar Mishra Vs. State of U.P. and Others, has directed the concerned authorities to appoint the dependents of the deceased who worked as daily wager or in work-charge establishment and as such, the claim of the petitioner is squarely covered with the aforesaid decisions.

Learned Standing Counsel further submits that even otherwise, the petitioner cannot be said to be a Government servant as defined under Rule 2(a) of Rules, 1974 insofar as the appointment of the deceased working in the work-charge establishment is not in accordance with the provisions of Rules of Recruitment and in consonance with the constitutional scheme.

Learned Standing Counsel has relied upon the judgment of the Apex Court rendered in Civil Appeal No. 3605 of 2009, arising out of SLP (civil) No. 15469 of 2006 [General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and Ors.] along with connected Civil Appeal No. 3606 of 2009 arising out of SLP (Civil) No. 2737 of 2006 [Uttaranchal Jal Sansthan and Ors. v. Kishore Chandra Pandey], decided on 15.5.2009, wherein the Apex Court, while considering the question as to whether deceased, who was not a permanent or temporary employee, his/her dependent would be entitled to appointment on compassionate ground or not, has held that the persons working in the work-charge establishment cannot be said to be a Government Servant in view of the definition of Government servant under Rule 2(a) of Rules, 1974.

In order to appreciate the rival submissions of learned Counsel for the parties, I deem it proper to refer the relevant provisions of Government Recruitment Rules. Rule 2 is the definition clause. ''Government Servant'' has been defined in Clause (a) and it provides as under:

(a) `Government servant'' means a Government servant employed in connection with the affairs of Uttar Pradesh who

(i) was permanent in such employment; or

(ii) though temporary had been regularly appointed in such employment; or

(iii) through no regularly appointed had put in three years'' continuous service in regular vacancy in such employment.

Explanation-"Regularly appointed" means appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be;

Rule 3 provides that the Rules would be applied to recruitment of dependants of the deceased government servants to public services and posts in connection with the affairs of State of Uttar Pradesh. Rule 4 is a non-obstante clause stating that the same shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement thereof.

Rule 5 provides for recruitment of a member of the family of the deceased. It reads as under:

Recruitment of a member of the family of the deceased. - (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person

(i) fulfils the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and

(iii) makes the application for employment within five years from the date of the death of the Government servant:

Provided that where the State Government is satisfied that the time- limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.

Thus, in order to claim an appointment under the provisions of Rules, 1974, the deceased should be a Government Servant as defined under Rule 2, as referred hereinabove. But, in the instant case, there are no averments in the writ petition as to whether the deceased was a Government Servant. In the year 1977, the petitioner''s father was engaged and he worked on Muster Roll for 20 years at Suheli Barrage on various positions. From 2000 to 2002, the father of the petitioner worked as a work charge employee in the Irrigation Department. Unfortunately, on 26.4.2002, he died. Subsequently, the petitioner moved a representation on 4.2.2006 which was rejected by the order dated 1.4.2006. Thereafter, the petitioner moved several representations for compassionate appointment, which according to him, are pending disposal. No where in the writ petition, it has been said that he was engaged after due process of recruitment either as daily wager or in the work-charge establishment. In order to be entitled for the benefit of Rules, 1974, petitioner''s father, Balak Ram (deceased) should have been engaged on regular vacancy as provided in Rule 3 of Rules, 1974.

A Constitution Bench of the Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, opined that any appointment through side door would be violative of our constitutional scheme of equality contained in Article 14 and 16 of the Constitution of India. Para43 of the Uma Devi (Supra) is reproduced as under:

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the by passing of the constitutional and statutory mandates.

The Apex Court in Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., has observed that regularization is not a mode of recruitment. The relevant paragraph 17 reads as under:

Admittedly, the employees in question in court had not been appointed by following the regular procedure, and instead they had been appointed only due to the pressure and agitation of the union and on compassionate grounds. There were not even vacancies on which they could be appointed. As held in A. Umarani v. Registrar, Coop. Societies such employees cannot be regularised as regularisation is not a mode of recruitment. In Umarani case the Supreme Court observed that the compassionate appointment of a woman whose husband deserted her would be illegal in view of the absence of any scheme providing for such appointment of deserted women.

At this juncture, it would also be useful to refer the decision rendered in National Institute of Technology and Others Vs. Niraj Kumar Singh, wherein it was opined that appointment on compassionate ground in absence of any Scheme is wholly illegal. Paragraphs 14 and 16 of the report reads as under:

Appointment on compassionate ground would be illegal in absence of any scheme providing therefor. Such scheme must be commensurate with the constitutional scheme of equality.

... ... 16. All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder.

Again, the Apex Court in I.G. (Karmik) and Others Vs. Prahalad Mani Tripathi, had held:

Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.

The cases, which have been relied upon by the petitioner''s Counsel are with regards to the work charge/daily wager, wherein reliance has been placed on Sunil Kumar (Supra) and Santosh Kumar (supra) but in none of the cases, the question whether work-charge employee is a government servant or not or their appointment/engagement is in accordance in consonance either with the provisions of Scheme of Constitution or departmental recruitment Rules, was neither considered nor dealt with. Thus, the benefit of the same cannot be extended to the petitioner.

On perusal of the judgment relied by learned Standing Counsel, it reflects that the Apex Court in Civil Appeal No. 3605 of 2009 (Supra) has held that in order to get appointment under the provisions of Dying-in-Harness Rules, the appointment of the deceased employee should be against a regular vacancy and appointment against the said vacancy is made in accordance with Recruitment Rules and in consonance with the Constitutional Scheme. The Apex Court, in the aforesaid judgment, while relying upon the judgment of Constitutional Bench rendered in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, and National Institute of Technology and Others Vs. Niraj Kumar Singh, has held that even though the cause of action would have arisen in 2002 but the decision of Umadevi (Supra) would squarely be applicable to the facts and circumstances of the case. Secondly, before a person can claim a status of a government servant not only his appointment must be made in terms of the recruitment rules, he must otherwise fufill criterion thereof. Appointment made in violation of the constitutional scheme is a nullity. Rendering of service for a long time, it is well known, does not confer permanency.

It is pertinent to mention that in case of Jaswant Singh v. Union Bank of India 1980 SCC [L&S] 36, the Apex Court has made observations that the work charge establishment means such establishments which expenses are chargeable to work. Their wages and allowances are drawn from separate heads. The work charge employees are engaged on work establishment and, therefore, is different from regular work charge employees.

From the above discussion, the legal proposition, which emerges out is that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance of the constitutional scheme of equality.

Thus, the daily wages or work charge employee, in my opinion, cannot be covered within the definition of the "Government Employee" as defined under Rules, 1974.

In view of the aforesaid facts and the legal proposition, I am of the considered view that ''daily wager'' or work charge employee does not fall in the definition of ''Government Employee'' as defined in Rules, 1974 and consequently, the petitioner is not entitled for compassionate appointment.

Accordingly, the writ petition is dismissed.

No order is passed as to costs.