Yogesh Kuamr Sharma vs State of U.P.

Devendra Kumar Arora, J.—Heard learned Counsel for the parties and perused the record. By means of this writ petition, the Petitioner has prayed for a writ in the nature of mandamus commanding the opposite parties to follow the judgments of this Court reported in 2003 (1) UPLBEC 489, Sunil Kumar v. State of U.P. and Ors. and 2002 (1) UPLBEC, Santosh Kumar Misra v. State of U. P. and others and thereby to ignore the impugned order dated 29.1.2003, as contained in Annexure No. 1 to the writ petition. Petitioner has further prayed for a writ in the nature of mandamus commanding the opposite parties to consider for appointment of the Petitioner under Dying in Harness Rules.

Submission of learned Counsel for the Petitioner is that father of Petitioner was working on the post of Mate in Work-charge Establishment since 26.10.1987 and he died in harness on 15.7.2009. Petitioner moved an application for appointment under Dying in Harness Rules on 11.1.2010. However, Petitioner''s candidature was rejected on the ground that Petitioner''s father was a work-charge employee and in respect of work charge employees this facility has been withdrawn by the impugned Government Order dated 29.1.2003. Learned Counsel for the Petitioner submitted that financial condition of the Petitioner is very poor. Petitioner has to support his widow mother and one disabled brother aged about 28 years. There is no earning member in his family except the Petitioner.

Further submission of learned Counsel for Petitioner is that the opposite parties have given appointment to several dependents of work-charge employees of the Lok Nirman Vibhag in pursuance of Dying in Harness Rules.

Learned Counsel for the Petitioner contends that the main object to get employment under the provisions of Dying in Harness Rules is to help the family members of the deceased to get over the financial crisis. Petitioner''s father served the department for more than 22 years. As such, Petitioner has a legal right to get employment under the Dying in Harness Rules and action of the opposite parties in not considering Petitioner''s application for giving an appointment under Dying in Harness Rules is illegal, arbitrary and mala fide.

Learned Counsel for the Petitioner, in support of his submission, has placed reliance upon the case of Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and Ors., reported in 1991 (18) ALR 591 and Smt. Saroj Devi v. State of U. P. and Ors. reported in 1999 (3) ESC 2187. It is further submitted that the judgment & order in the case of Santosh Kumar Misra v. State of U. P. and Ors. (2002 UPLBEC 337). This Court settled the law regarding appointment of dependents of persons working on daily wages basis and work charge employees. Further, this Court in W. P. No. 73374 of 2005, Ehsan v. State of U. P. and Ors. issued directions to concerned authority to consider the claim of the Petitioner in light of the judgments given in Santhosh Kumar Misra''s case as well as in the case of Abhishek Kumar Pandey v. State of U. P. and others. According to the aforesaid judgments, the Government order which provides that the dependents of the employee who were engaged on the daily wages basis, are not entitled for compassionate appointment, is unsustainable in the eyes of law.

Learned Counsel for the Petitioner also placed reliance upon a decision of Apex Court reported in State of Haryana and others Vs. Piara Singh and others etc. etc., and stated that the State being a model employer, should not exploit the employees nor take advantage of the helplessness and misery of either the unemployed person or the person concerned, as the case may be, where a temporary or ad hoc appointment is continued for long, the court presumes that there is regular need for his services on a regular post.

Learned Standing Counsel while opposing writ petition, submitted that the Petitioner''s father was a work charge employee and was not a regular incumbent, as such, Petitioner is not entitled to get any benefit of the provisions of Dying in Harness Rules, therefore, his application for employment was rightly rejected. The present writ petition is misconceived and deserves to be dismissed.

I have considered arguments of learned Counsel for respective parties and gone through the record.

The main question which arises in the instant writ petition is as to whether Petitioner''s father who was a work charge employee, can be termed as a government servant For the purposes applying the provisions of U. P. Dependants of Govt. Servants (Dying in Harness) Rules, 1974 and if not, whether after his death, his dependent can be given appointment under Dying in Harness Rules, 1974.

Admittedly, in the present case, the deceased was a work-charge employee and even after rendering about 22 years service on work charge basis, his services were not regularized. He never attained the status of a regular employee.

The State Government in exercise of powers under the proviso of Article 309 of the Constitution of India framed U.P. Dependants of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as ''the Rules, 1974''). The Rule 2 (a) of the Rules defines "Government Servant" and for ready reference the same is being reproduced as hereunder:

(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) though not 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.

In view of the aforesaid definition, the father of the Petitioner admittedly does not fall within the definition of "Government Servant" being a work-charge employee. In the case of State of Haryana and Ors. v. Tilak Raj and Anr. 2003 SCC 828 the Hon''ble Apex Court in para-11 pleased to held that; "a scale of pay is attached to a different post and in case of a daily wagers, he holds no post."

Similarly in the matter of Punjab State Electricity Board and Others Vs. Jagjiwan Ram and Others, the Hon''ble Apex Court while examining the status of a work-charge employee viz-a-viz a regular employee pleased to observe as under:

We have considered the respective submissions. Generally speaking, a work-charged establishment is an establishment of which the expenses are chargeable to works. The pay and allowances of the employees who are engaged on a work-charge establishment are usually shown under a specified sub-head of the estimated cost of works. The work-charge employees are engaged for execution of a specified work or project and their engagement comes to an end on completion of the work or project. The course and mode of engagement/ recruitment of work-charged employees, their pay and conditions of employment are altogether different from the persons appointed in the regular establishment against sanctioned posts after following the procedure prescribed under the relevant Act or rules and their duties and responsibilities are also substantially different than those of regular employees.

The work-charged employees can claim protection under the Industrial Disputes Act or the rights flowing from any particular statute but they cannot be treated on a par with the employees of regular establishment. They can neither claim regularization of service as of right nor can they claim pay scales and other financial benefits on a par with regular employees. If the service of a work-charged employee is regularized under any statute or a scheme framed by the employer, then he becomes member of regular establishment from the date of regularization. His service in the work-charged establishment cannot be clubbed with service in a regular establishment unless a specific provision to that effect is made either in the relevant statute or the scheme of regularization. In other words, if the statute or scheme under which service of work-charged employee is regularized does not provide for counting of past service, the work-charged employee cannot claim benefit of such service for the purpose of fixation of seniority in the regular cadre, promotion to the higher posts, fixation of pay in he higher scales grant of increments, etc.

The Hon''ble Supreme Court in the matter of General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and Others, pleased to observe that the rules providing compassionate appointment have to be given strict interpretation and 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 fulfil the criteria thereof.

The relevant paras-20, 29, 32 and 33 are relevant for the present controversy and the same are being reproduced as hereunder:

The provision of law which ex-facie violates the equality clause and permits appointment through the side-door being unconstitutional must be held to be impermissible and in any event requires strict interpretation. It was, therefore, for the Respondents to establish that at the point of time the deceased employees were appointed, there existed regular vacancies, Offers of appointment made in favour of the deceased have not been produced.

29... 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 fulfil the criterion therefore. Appointment made in violation of the constitutional scheme is a nullity. Rendition of service for a long time, it is well known, does not confer permanency. It is furthermore not a mode of appointment.

Learned Counsel for the Respondents submits that the daily-wage employees would be entitled to the benefit of the Rules. They are, in our opinion, not covered in the definition of the "government employee".

Ms Issar urged that the daily wagers are not excluded from the purview of the Rules. The said question, in our opinion, is irrelevant. The question which should have been posed is as to whether the daily wagers are included within the definition of "government servant". If daily wagers are not government servants, question of applicability of the Rules does not arise.

Recently, full bench of this Court in Writ Petition No. 15505 of 2005, Pawan Kumar Yadav v. State of U. P. and Ors. considered the divergent views of recruitment of dependents of government servants who died in harness, where the deceased employees were either daily wagers or work-charge employees, who were not regularly appointed, and also examined Rule 2 (a) of the U. P. Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974 and answered that a daily wager and work charge employee, employed in connection with the affairs of the U. P. , who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he is working for more than three years, is not a ''government servant'' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974 and, thus, his dependents on his death in harness are not entitled to compassionate appointment under these Rules.

From perusal of the record, it reveals that the Petitioner''s father was working on the post of Mate in the pay scale of Rs. 2610-60-3150/-in Work Charge Establishment of Lok Nirman Vibhag since 26.10.1987 and his name is shown at serial No. 28 of the seniority list of the work-charge employees. It is evident that the Petitioner''s father never attained the status of a regular employee of the Department and, as such, he is not covered under the definition of ''Government Servant'' as provided under Rule 2 (a) of the Rules, 1974. and as such, Petitioner is not entitled to get benefit of the Dying-in-Harness Rules 1974. The Hon''ble Supreme Court in its various decisions has held that the compassionate employment is not a vested right. It is an exception to a general rule.

This Court is, therefore, of the considered opinion that no directions can be issued for considering the application of the Petitioner for employment under Dying-in-Harness Rules. In view of the above, the instant writ petition does not warrant any interference from this Court.

Writ petition is devoid of merit and is dismissed.