Swami Nath vs State of U.P.

Dr. Devendra Kumar Arora,J.—Heard learned Counsel for the petitioner,namely, Sri A.S.Gaur and the learned State Counsel.

On account of death of petitioner''s father, namely, Tej Bahadur, who worked as Pump Operator under the Work Charge Establishment in the department of Irrigation, has filed the instant writ petition challenging the correctness of the order dated 6.4.2009 passed by the Executive Engineer, Sarju Canal Division, Faizabad, whereby his application for compassionate appointment has been rejected.

The stand of the respondents is that the petitioner''s father being a work charge employee, cannot be treated to be a Government Servant and as such petitioner is not entitled for compassionate appointment.

The question whether legal heir of a deceased, who worked as work charged employee is entitled for compassionate appointment came up for consideration before a Full Bench of this Court in Pawan Kumar Yadav v. State of U.P. and others [2010(28) LCD 1493]. In Pawan Kumar Yadav v. State of U.P. & Ors. the Court noticed judgements of this Court taking divergent views in the matter of recruitment of dependents 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 Rule 2 (a) of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974?

Whether the judgement in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi v. State of U.P. (Writ Petition No.24231 of 1998 decided on 2.3.1998); State of U.P. v. Maya Devi (Special Appeal No.409 of 1998); Santosh Kumar Misra v. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615; and Anju Misra v. General Manager, Kanpur Jal Sansthan (2004) 1 UPLBEC 201, giving benefit of compassionate appointment to the dependants of daily wager and work charge employees, have been correctly decided?"

The Full Bench after considering the series of judgments on the point including the expression ''regular vacancy'' as coined in the case of General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi answered the aforesaid questions in following words:-

"1. A daily wager and workcharge 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 dependents on his death in harness are not entitled to compassionate appointment under these Rules.

The judgements in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi v. State of U.P. (Writ Petition No.24231 of 1998 decided on 2.3.1998); State of U.P. v. Maya Devi (Special Appeal No.409 of 1998); Santosh Kumar Misra v. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615; and Anju Misra v. General Manager, Kanpur Jal Sansthan (2004) 1 UPLBEC 201 giving benefit of compassionate appointment to the dependants of daily wage and workcharge employee have not been correctly decided."

It may be observed that the person appointed in regular establishment are appointed against a post after following due procedure prescribed under the rules whereas in the work-charge establishment, the employees are not appointed by following any regular vacancy. They do not work against any post or regular vacancy. They only get consolidated salary under the limits of sanction provided by the Government Order.

In view of the law as propounded by the Full Bench in the aforesaid case of Pawan Kumar Yadav, the petitioner is not entitled for any relief as sought for by him. The decision rendered in Santosh Kumar Mishra v. State of U.P. and others [(2002)1 UPLBEC 337] which has been relied upon by the petitioner has been overruled by the Full Bench in the aforesaid case. A counsel is expected to be well equipped with the latest developments in the field of law and before placing reliance on a judgment,he should have verified whether or not the case has been overruled or still holds the field. In the case at hand, the Counsel has placed reliance on a case rendered in the year 2002, which has already been overruled by the Full Bench.

For the reasons aforesaid, the writ petition is dismissed. Parties to bear their own costs.