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2010 DIGILAW 3703 (ALL)

State of U. P. & Ors. v. Rakesh Kumar

2010-12-13

DEVI PRASAD SINGH, VIRENDRA KUMAR DIXIT

body2010
Heard learned counsel for the parties and perused the record. 2. The present appeal has been preferred under Chapter VIII Rule 5 of the Rules of the Court against the impugned judgement and order dated 2.5.2006 passed by Hon'ble Single Judge in Writ Petition no. 3608(SS) of 2006. Respondents petitioner being aggrieved with an order dated 7.3.2006 whereby his request for appointment under Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (in short hereinafter referred as the Rule) was rejected by Executive Engineer, Tube-well Division II, district Sultanpur on the ground that his father was appointed on 3.10.1991 as part time tube-well operator and thereafter died on 28.11.2004, hence, the dependents are not entitled for appointment on compassionate ground. 3. Before Hon'ble Single Judge the respondents had relied upon a judgement of this Court in Writ petition no. 51469 of 2005, Vijay Kumar Yadav Vs. State of U.P. dated 25th July, 2005 in which it was held that dependent of part time tube-well operator shall be entitled for appointment on compassionate ground. Learned Single Judge held that since tube-well operator are government servant hence they are entitled for appointment on compassionate ground under rules in question. 4. Learned counsel for the appellant had invited attention towards a Division Bench judgement of this Court passed in Special Appeal No. 117 of 2004,State of U.P. and others Vs. Smt. Phoola Devi decided on 14.7.2000 whereby it has been held that dependent of part time tube-well operator shall not be entitled for appointment on compassionate ground. 5. It appears that during the course of hearing the Division Bench judgement of this court in the case of Smt. Phoola Devi (supra) was not cited or referred before Hon'ble Single Judge. While considering Rule 5 of the Rule with regard to tube-well operator the Division Bench held as under:- "Rule 5 of the U.P. Requirement of Dependents of Government Servants Dying in Harness Rules, 1974 provides that in case a Government servant died in harness, one member of his family shall be given suitable employment in Government Service which is not within the purview of the Pubic Service Commission in relaxation of normal recruitment rules, provided such member fulfills the educational qualification prescribed for the post and is also otherwise qualified for Government Service. The U.P. Government had sent a communication to the Engineer-in-Chief of Irrigation Department on Oct. The U.P. Government had sent a communication to the Engineer-in-Chief of Irrigation Department on Oct. 16,1996 that there was no provision for giving employment to the dependents of part-time tube-well operators were appointed to a particular tube-well and were to get a fixed remuneration in the appointment order of Chandra Pal Singh (husband of writ petition) it was mentioned that he was being appointed on Tube-well No. 30 of Village Dwdhara and in the event of failure of tube well his service will be terminated. They had to be resident of the same village or command area where the tube-well was situated. Their working hours were two and a half hours only and thereafter they were free to carry on their own occupation. It is obvious that their position was not that of a full-time Government Servant. Such part-time tube-well Operators were not dependent for their livelihood on the remuneration which they got as the said amount was very small. The appointment order itself stated that they could carry on their own occupation in the non-duty hours and he duty hours were much smaller as compared to other Government Servant. A government servant is normally a whole-time servant and is not entitled to carry on any other occupation. He is normally dependent for his livelihood upon the salary which he gets, such is not the case of a part-time tube-well operators, the 1974 Rules have been made to mitigate the hardship of the family of a deceased Government servant where on account of death of the sole bread winner their position becomes precarious. In view of the difference in nature of appointment nature of duties an the emoluments received by them, a part-time tube-well operator could not be put at part with a regular government servant. Consequently, the Government certified that such category of persons will not be entitle to the benefit of 1974 rules in view of the Government order dated Oct. 26, 1998 and in view of the substantial difference in the nature of the employment of a Part-time tube-well operator and a regular government servant, the provisions of 1974 rules can have no application in such a case. In State of Manipur Versus Thingurjan Brojen Meerut. AIR 1996 SC 2124 , it was held that family members of a confirmed work charged employee cannot get the benefit of dying in harness Scheme framed by Government of Manipur. In State of Manipur Versus Thingurjan Brojen Meerut. AIR 1996 SC 2124 , it was held that family members of a confirmed work charged employee cannot get the benefit of dying in harness Scheme framed by Government of Manipur. The writ petition, therefore, could not claim compassionate appointment on the ground that she was widow of a Part-time tube-well operator who died in harness." 6. Attention of this court has been invited towards a Full Bench Judgement of this court decided on 22.9.2010 passed in Civil Misc Writ Petition No. 15505 of 2005, Pawan Kumar Yadav Vs. State of U.P. and others where the controversy with regard to work charge employees was considered for the entitlement under the Rules. Full Bench held that the dependent of work charge employee shall not be entitled for appointment on compassionate ground. More or less the controversy with regard to appointment on compassionate ground seems to be similar as those of the work charge employee and the present one i.e. part time tube-well operators. Hence also the respondents petitioner does not seems to be entitled of compassionate appointment. Relevant portion from the judgment of Pawan Kumar Yadav (supra) is reproduced as under:- "20. In respect of the employees the State Government in Irrigation Department, Public Works Department, Minor Irrigation, Rural Engineering Services, Grounds Water Department has provided for employment the regular establishment and work-charge establishment. The person appointed in regular establishment are appointed against a post, after following due procedure prescribed under the rules. In work-charge establishment the employees are not appointed by following any procedure or looking into their qualification. They do not work against any post or regular vacancy. They only get consolidated salary under the limits of sanction provided by Government Order dated 6th April, 1929. The conditions of their employment is provided in paragraphs 667, 668 and 669 of Chapter XXI under the Head of Establishment in Financial Hand Book Volume IV. Their payments are provided to be made in same Financial Hand Book Volume IV in Paragraph Nos.458, 459, 460, 461, 462 and 463. 23. The regular need of work, of which presumption has been set to arise after working for long number of years and the principles of legitimate expectations, would not mean that there was a regular vacancy. Their payments are provided to be made in same Financial Hand Book Volume IV in Paragraph Nos.458, 459, 460, 461, 462 and 463. 23. The regular need of work, of which presumption has been set to arise after working for long number of years and the principles of legitimate expectations, would not mean that there was a regular vacancy. The word 'regular' vacancy has not been defined but that a distinction must be made between a need of regular employees, and the existence of regular vacancies. In Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court said; 'indisputably the services of the deceased had not been regularised. in both the cases the writ petitions were filed but no effective relief thereto had been granted. In the case of late Leeladhar Pandy, allegedly he was drawing salary on regular scale of pay. that may be so but the same would not mean that there existed a regular vacancy". 25. In General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court considered and interpreted the expression 'regular vacancy' in respect of same Rules namely U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974. The judgement of the Apex Court interpreting the same Rules and deciding the questions posed before us squarely covers question No.1, in favour of the State and is binding on the High Court." 7. Thus law with regard to entitlement of part-time tube-well operator was settled earlier to judgement delivered by learned Single Judge in Vijay Kumar Yadav (supra) with declaration that tube-well operator shall not be entitled for compassionate appointment. The impugned judgment and order passed by learned single judge of this court seems to be per incurrium to law laid down by this Court in the case of Phoola devi (supra). 8. Per incurrium means in ignorance of or without taking note of some statutory provisions or the judgement of Hon'ble Supreme Court or the larger Bench, vide; 2003 (5) SCC 448 : ( AIR 2003 SC 2443 ), State of Bihar Vs. Kalika Singh and others (1991) 4 SCC 139 State of U.P and another Vs. Synthetics and chemicals Ltd. And another, AIR 1975 SC 907 Mamleshwar Prasad and others Vs. Kanhaiya Lal, 2005 (1)SCC 608 : ( AIR 2005 SC 498 ), Sunita Devi Vs. Kalika Singh and others (1991) 4 SCC 139 State of U.P and another Vs. Synthetics and chemicals Ltd. And another, AIR 1975 SC 907 Mamleshwar Prasad and others Vs. Kanhaiya Lal, 2005 (1)SCC 608 : ( AIR 2005 SC 498 ), Sunita Devi Vs. State of Bihar, 1999 (3) SCC 112 : (1999 AIR SCW 4721; Ram Gopal Baheti Vs. Giridharilal Soni and others, AIR 1988 SC 1531 ; Municipal Corporation of Delhi VS. Gurnam Kaur, 1999 (5) SCC 638 (1999 AIR SCW 4749); Sarnam Singh Vs. dy. Director of Consolidation and others, 2004 (4) SCC 590 : ( AIR 2004 SC 2364 ) State Vs. Ratan Lal Arora. 9. Keeping in view the fact that learned Single Judge had not considered the judgment of Phoola Devi (supra) where a Division Bench of this court held that part time tube-well operator shall not be entitled for compassionate appointment, the impugned judgement and order does not seem to survive. Respondents petitioner does not seem to be entitled for appointment on compassionate ground under the Rules. Accordingly, present appeal deserves to be allowed. 10. Appeal is allowed. The judgement and order dated 2.5.2006 passed by learned Single Judge is set aside. The writ petition is also dismissed being devoid of merit. Cost made easy.