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2001 DIGILAW 696 (ALL)

SANTOSH KUMAR MISHRA v. STATE OF UTTAR PRADESH

2001-07-17

PRADEEP KANT

body2001
PRADEEP KANT, J. ( 1 ) COUNTER-AFFIDAVIT and rejoinder-affidavit have been exchanged. ( 2 ) WITH the consent of the parties, the Writ Petition is being disposed of finally. ( 3 ) THE petitioner Santosh Kumar Misra applied for being appointed in the Department of irrigation, Government of Uttar Pradesh, Lucknow on compassionate ground as his father sheetla Prasad while in service in the said department died in-harness on 1. 4. 1999. The petitioners father Sheetla Prasad was engaged as a daily wager on a muster roll with effect from 15. 6. 1986 and was allotted the work of Chowkidar. He continuously worked as Chowkidar as a muster roll employee and later on in pursuance of the scheme as enumerated in the case of Raj narain Prasad and Ors. v. State of U. P. and Ors. , (1998) 8 SCC 473 , his services were converted into that of a work charge employee on 13. 8. 1997. Sheetla Prasad (since deceased) continued to work upto 31. 3. 1999. ( 4 ) THUS, it is the admitted case of both the parties that the petitioners father was earlier engaged on muster roll on 5. 6. 1986 and later on he was appointed on work charge establishment on 13. 8. 1997 and that the remained in continuous employment right from 15. 6. 1996 upto the date of his death i. e. though earlier as a muster roll employee and later on as a workcharge employee. The petitioner on the death of his father applied for being given appointment taking shelter of dying in Harness Rules, 1974 on 22. 4. 1999, but the petitioner has not been favoured with any appointment. Being aggrieved, the present petition has been filed. ( 5 ) A counter-affidavit has been filed by the State in which it has been stated that since the petitioners father was not a regular employee, the provisions of Dying in Harness Rules would not be attracted in the case of the petitioner. It has further been stated that there is no rule which provides that the appointment in Dying in Harness Rules can be given to any dependent whose father was not a regular employee. Since the petitioners father was earlier engaged on muster roll and thereafter he worked as workcharge employee in the workcharge establishment, therefore, the petitioner is not entitled for appointment under the aforesaid rules. Since the petitioners father was earlier engaged on muster roll and thereafter he worked as workcharge employee in the workcharge establishment, therefore, the petitioner is not entitled for appointment under the aforesaid rules. ( 6 ) THE petitioner has given a specific case of one Gajraj who died in harness after completing 10 years of service on muster roll and his son Beche Lal was given appointment on compassionate grounds in para 9 of the writ petition. The petitioner has asserted that in case benefit of appointment on compassionate grounds can be given under the Dying in Harness Rules to the son of Gajraj who was working only as a muster roll employee then the said benefit should be given to the petitioner also. In reply to the said averment in the writ petition the State has stated in the counter-affidavit in para 7 that although there are no orders of the Government to engage the dependents of the daily wagers but in view of the letter of the Engineer-in-Chief, appointment has been given to son of Gajraj on humanitarian grounds. The averment made in this paragraph of the counter-affidavit indicated that some directions were issued by the engineer-in-Chief that the dependents of the daily wagers cannot be appointed but the appointment can be made on humanitarian grounds. ( 7 ) LEARNED Counsel for the petitioner has placed reliance upon the case of Raj Narain Prasad (supra), for stressing his submission that the petitioners father would be deemed to have been a regular Government servant in view of the fact that his appointment has been converted into workcharge employee in pursuance of the scheme approved by the Apex Court. He further submitted that in view of the decision rendered in the case of Smt. Pushp Lata Dixit v. Madhyamik Shiksha Parishad and Ors. , reported in 1991 (18) ALR 591, the petitioner is entitled for getting the appointment. In this case, the husband of Smt. Pushp Lata was working as a Paid apprentice. He further submitted that in view of the decision rendered in the case of Smt. Pushp Lata Dixit v. Madhyamik Shiksha Parishad and Ors. , reported in 1991 (18) ALR 591, the petitioner is entitled for getting the appointment. In this case, the husband of Smt. Pushp Lata was working as a Paid apprentice. The plea that he was not a regular employee although he had been working in the department for the last 17 years was not entitled for appointment under Dying in Harness Rule was rejected by the Court and the directions were issued to accommodate the petitioner (Smt. Pushp Lata) according to her qualifications relying upon this case, the writ petition filed by Smt. Maya Dei v. State of U. P. and Ors. , reported in 1998 (79) FLR 608, was also allowed in which the High Court found that the petitioners husband in that case has satisfactorily worked for about 10 years untill his death and though he may be a daily wager, the petitioner can be accommodated on compassionate grounds under Dyina in Harness Rules. In the case of Smt. Saroj Devi v. State of U. P. and Ors. , reported in 1999 (3) ESC 2187 (All): (2000) 1 UPLBEC (Alld.) (Sum.) 15, the benefit was given to the temporary appointee as he was working against a substantive vacancy. ( 8 ) THE learned State Counsel relying upon he phraseology used, submitted that the scope of dying in Harness Rules can neither be broadened nor enlarged. Emphasis has been laid upon the definition given of Government Servant in Rule 2 (a) of the aforesaid Rules, which means a governments 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. ( 9 ) ACCORDING to the submission of the learned Counsel for the State, a daily wager or workcharge employee who is engaged by the State Government or any department of the State Government cannot be treated as a Government servant within the definition of Rule 2 of the aforesaid rules. ( 9 ) ACCORDING to the submission of the learned Counsel for the State, a daily wager or workcharge employee who is engaged by the State Government or any department of the State Government cannot be treated as a Government servant within the definition of Rule 2 of the aforesaid rules. Qualifying the above argument, the learned Counsel for the State further submitted that though an employee who is not regularly appointed is covered by the definition in view of Sub-clause (iii) of Rule 2 (a) but in that case such employee must have put in three years continuous service, that too in regular vacancy in such employment. Since the petitioners father was earlier a daily wager or muster roll employee and later on worked as work charge employee, therefore, it cannot be said that he was appointed regularly or had worked in regular vacancy. ( 10 ) THE case of State of Manipur v. Thin Gujam Brojen Meetel, reported in 1996 (9) S. C. C. 29, has been relied upon by the learned Counsel for the State for fortifying his argument. The Apex court, in the above referred case was dealing with a scheme which was issued by means of an office memorandum dated 2. 5. 1984 by giving appointments to the dependents of the person who died in harness. Para 3 of the scheme as initially framed provided as follows : "the concession under the above scheme shall also be applicable to those dependents mentioned in (2) in respect of those work-charged employees who died in harness. " By means of corrigendum dated 8. 5. 1984 office memorandum dated 2. 5. 1984 was modified and paragraph (3) was substituted by the following provision :"the scheme shall be applicable only to regular Government employees in a vacancy available in the department in which the deceased employee worked. " A note was also taken by the Apex Court that for work-charged employees the Government of manipur has framed the Terminal Benefits for work-charged staff of pwd/ipc/phe/mi/electricity, Manipur Rules, 1978 (for short, the Terminal Benefits Rules ). Under the Terminal Benefits Rules Permanent work-charged employees are allowed certain benefits in the pattern of CPWD in the matter of pension, gratuity retirement, leave, holidays, etc. Under the Terminal Benefits Rules Permanent work-charged employees are allowed certain benefits in the pattern of CPWD in the matter of pension, gratuity retirement, leave, holidays, etc. ( 11 ) THE Apex Court found that even though a work-charge employee is confirmed, his status does not change from that of a work charge employee and that he would be entitled to the benefits which are available to him under the aforesaid Rules of 1978 but in view of the scheme, no appointment can be given to him under the said scheme. ( 12 ) THE Apex Court was considering the scheme and the status of a work-charge employee even after being confirmed it has been held that a workcharge employee after confirmation does not cease to be a work-charge employee and he continues to be a workcharge employee. The question of regularisation against a regular vacancy was not in issue before the Apex Court. No rule, law of any Government Order has been brought to the notice of this Court by the State to indicate that any terminal benefits have been provided to the workcharge employee who have to their credit a considerable period of service and even in cases after very longer period of service, they retire as such. Even no provision for confirmation of a work charge employee as a workcharge employee is available in the State of Uttar Pradesh nor any such provision has been shown by the learned State Counsel despite being specifically asked for. ( 13 ) FROM the facts of the case of Thingujam Borjen Meetel (supra) it is clear that the scheme framed by the Government confine the benefits to the regular Government employees as per provisions of para 3 and the workcharge employees are covered by another set of Rules of 1978. It is also obvious that their Lordships of the Supreme Court did not have an occasion to consider the question of daily wager or a work-charge employee who has been allowed to continue for a considerable length of service and has legitimate expectation of being regularised against a vacancy it the regular vacancy is not available at the time when he was engaged on daily wages or was converted into a workcharge employee in the workcharge establishment. ( 14 ) THE practice of appointing daily wagers or workcharge employees is very much prevailing in the State of Uttar Pradesh and instances are no less in number where the daily wager or workcharge employees in the Government department have been allowed to continue for years together, namely, 15 years, 20 years and 25 years or till they actually reach the age of superannuation to which they may not be entitled, not being a Government servant but they are disposed with their engagement on attaining the age of superannuation. The practice of appointing such daily wagers and workcharge employees has constantly been a matter of great concern for the judiciary and for that mater, the Apex Court has many a times issued directions for framing schemes so as to accommodate all daily wagers of long standing duration and workcharge employees as a regular employees, it would be needless to mention that such a scheme has been ordered to be framed by the Court in the department of Rural Engineering services in the Forest Department and many other departments. ( 15 ) IN the instant case, also, it reflects that the Supreme Court being alive of the hanging fate of the daily wagers and workcharge employees who have put in considerable length of service approved a scheme for giving regular appointment to such workcharge employees, in the case of raj Narain Prasad (supra) the Supreme Court was not oblivious of the fact that these daily wagers and workcharge employees are said to have been engaged for particular requirements but their continuous length of serve and engagement entitles them to claim regularisation against existing or future vacancy. The Supreme Court specifically directed them that there should be regular review of cadre strength so that workcharge employees may be accommodated against the available existing vacancies and to create the vacancies against which they can be accommodated and likewise muster roll employees can stand next to workcharge employees. It, therefore, cannot be but rightly said that dependent of every workcharge employee irrespective of his length of service and irrespective of the fact whether he was, entitled for regularisation or not can be deprived of the benefit of appointment on compassionate grounds. It, therefore, cannot be but rightly said that dependent of every workcharge employee irrespective of his length of service and irrespective of the fact whether he was, entitled for regularisation or not can be deprived of the benefit of appointment on compassionate grounds. ( 16 ) IT may also be taken note of that; if daily wager or a workcharge employee is engaged against a particular duty or post, and that work is of perennial nature, the presumption would be that such an employee would be entitled for being treated to have been continuing against a regular vacancy. ( 17 ) IN the instant case, one more redeeming feature in favour of the petitioner is that persons junior to the petitioners father who were similarly appointed and were taken on the workcharge establishment were regularised against regular vacancies by means of order dated 2. 11. 1998 but the case of the petitioners father was not considered and thus he was deprived the benefit of regularisation. In case, the petitioners father had been considered at that time, he would have been regularised before he died on 1. 4. 1999. Since the petitioners father was entitled for regularisation after putting in such a long service and his case has not been considered for regularisation, the petitioner cannot be deprived of giving the appointment on compassionate ground because the opposite parties themselves did not consider the case of the petitioners father for regularisation. ( 18 ) IT is also not disputed that appointments of such nature have already been given by the department earlier and the respondents State has not been able to indicate as to why the same benefit has not been given to the petitioner. ( 19 ) I, therefore, find that the petitioner is entitled for being given the appointment under Dying in harness Rules or to make it more precise on compassionate grounds if he is otherwise eligible on any suitable post. ( 20 ) IT is , therefore, directed that the case of the petitioner for appointment on compassionate grounds shall be considered by the opposite parties within a period of two months from the date a certified copy of this order is produced before the authorities concerned. ( 21 ) THE writ petition is allowed. No order as to costs.