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2011 DIGILAW 429 (ALL)

Veer Bahadur Singh v. State of U. P. & Ors.

2011-02-22

DEVENDRA KUMAR ARORA

body2011
Devendra Kumar Arora,J.:- Heard learned counsel for the parties and perused the record. 2. By means of this writ petition, the petitioner has prayed for a writ in the nature of certiorari quashing the impugned order dated 02.12.2009, passed by opposite party no. 4, 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 appoint the petitioner on a suitable post on compassionate grounds under the provisions of U. P. Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974, treating the deceased as a regular employee of the department. 3. Submission of learned counsel for the petitioner is that mother of petitioner, namely, Smt. Raj Kumari W/o Late Ram Ujagir was a class IV daily wager employee who was working in the office of Opposite Party No. 4 since 1972 and continuously worked till her death. In the year 2001, the Government of U.P. promulgated “Uttar Pradesh Samooh “Gha” Ke Padon Par Dainik Vetan Niyuktiyon Ka Viniyamatikaran Niyamawali, 2001” for regularisation of daily wagers working since long in different departments of Uttar Pradesh. Although case of the deceased was fully covered with the provisions of Rules, 2001, but her case was not considered for regularisation. Feeling aggrieved, the deceased alongwith other similarly situated persons preferred a Writ Petition No. 2209 (M/B) of 2003 and this Court vide order dated 25.4.2003 directed the opposite parties to pay minimum of pay-scale to the mother of the petitioner and other similarly situated persons. Accordingly, mother of the petitioner was getting minimum of the pay-scale for the post of Mali and process of regularisation of her services was in progress but meanwhile she died on 22.8.2009 and her services could not be regularised. The petitioner, being her legal heir, moved an application to the opposite party no. 4 on 13.11.2009 for appointment on compassionate ground under Dying in Harness Rules. The opposite party no. 4 rejected the application on the ground that the deceased was a daily wager and there is no provision for making appointment of the dependents of the daily wager workers on compassionate ground. 4. Learned counsel for the petitioner submitted that the petitioner has a legal right to get employment under the provisions of the Dying in Harness Rules and action of the opposite party no. 4. Learned counsel for the petitioner submitted that the petitioner has a legal right to get employment under the provisions of the Dying in Harness Rules and action of the opposite party no. 4 in not considering petitioner's application for giving an appointment under Dying in Harness Rules is illegal, arbitrary and mala fide. The mother of the petitioner had rendered 36 years of service in the department and, as such, she was fully entitled for regularisation of her services. Petitioner's case falls under sub clause (iii) of clause (a) of Rule 2 of Dying in Harness Rules.1974. Learned counsel for the petitioner placed reliance upon a decision of Hon'ble Apex Court reported in 1992 (4) SCC 118 : ( AIR 1992 SC 2130 )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 her services on a regular post. 5. On the other hand, learned Standing Counsel while opposing writ petition, submitted that mother of the petitioner was a daily wager and was not working against any regular vacancy. As such, petitioner is not entitled to get any benefit of the provisions of Dying in Harness Rules, 1974. The application of the petitioner was rightly rejected. Learned Standing Counsel further submitted that in view of the decision of Full Bench of this Court passed in Writ Petition No. Writ Petition No. 15505 of 2005(Reported in 2011 (1) ALJ 1), Pawan Kumar Yadav vs. State of U. P. & others no relief can be granted to the petitioner. The present writ petition is, therefore, misconceived and deserves to be dismissed. 6. I have considered arguments of learned counsel for respective parties and gone through the record. 7. Admittedly, in the present case, the mother of the petitioner was a daily wager and her services were not regularised till her death. 8. In order to appreciate the controversy, it is necessary to go through the provisions of U. P. dependents of Government Servants Dying-in-Harness Rules, 1974; 9. 7. Admittedly, in the present case, the mother of the petitioner was a daily wager and her services were not regularised till her death. 8. In order to appreciate the controversy, it is necessary to go through the provisions of U. P. dependents of Government Servants Dying-in-Harness Rules, 1974; 9. The State Government in exercise of powers under the proviso of Article 309 of the Constitution of India framed the Uttar Pradesh Dependent of Government Servants Dying-in-Harness Rules, 1974. The Rule 2 (a) of the Rules defines "Government Servant", for ready reference the same is being reproduced as hereunder:- 2.(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." 10. Rule 3 provides that the Rules would be applied to recruitment of the dependents of the deceased government servants to public services and posts in connection with the affairs of the State of Uttar Pradesh. Rule 4 provides for 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. 11. Rule 5 provides for recruitment of a member of the family of the deceased. It reads as under:- "5. Recruitment of a member of the family of the deceased. 11. Rule 5 provides for recruitment of a member of the family of the deceased. It reads as under:- "5. 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." 12. From examination of Rules, 1974, it is crystal clear that Rule 5 of Rules, 1974 would apply provided the deceased was a government servant and admittedly mother of the petitioner being a daily wager, does not fall in the definition of government servant. 13. The Hon'ble Supreme Court in the case of State of Haryana and others vs. Jasmer Singh and other (1996) 11 SCC 77 : ( AIR 1997 SC 1788 )pleased to observed that daily wagers cannot be treated at par with the persons in regular service nor they can claim minimum of regular pay scale of regularly employees and if a minimum wage is prescribed for such workers, they will be entitled to it if it is more than what they are being paid. The paras 10 and 11 of the same read as under:- "10. The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfil the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed. 11. The High Court was, therefore, not right in directing that the respondents should be paid the same salary and allowances as are being paid to regular employees holding similar posts with effect from the dates when the respondents were employed. If a minimum wage is prescribed for such workers, the respondents would be entitled to it if it is more than what they are being paid." 14. In the case of State of Haryana and others vs. Tilak Raj and another 2003 SCC (L & S) 828 : ( AIR 2003 SC 2658 ) the Hon'ble Apex Court in para-11 pleased to hold that; "a scale of pay is attached to a definite 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 (2009) 3 SCC 661 : (AIR 2009 SC (Supp.) 246), 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:- "9. 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-charged establishment are usually shown under a specified sub-head of the estimated cost of works. 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-charged establishment are usually shown under a specified sub-head of the estimated cost of works. The work-charged 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. 10. 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 regularisation 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 regularised under any statute or a scheme framed by the employer, then he becomes member of regular establishment from the date of regularisation. 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 regularisation. In other words, if the statute or scheme under which service of work-charged employee is regularised 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 the higher scales, grant of increments, etc." 15. The Hon'ble Supreme Court in the matter of General Manager, Uttaranchal Jal Sansthan vs. Laxmi Devi and others reported in (2009) 7 SCC 205 : (2009 (6) ALJ 451)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. Paras-20, 29, 32 and 33 are relevant for the present controversy and the same are being reproduced as hereunder:- "20. 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 therefor. 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 32. 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". 33. 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." 16. 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." 16. Recently, full bench of this Court in Writ Petition No. 15505 of 2005 (2011 (1) ALJ 1), Pawan Kumar Yadav vs. State of U. P. & others 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 she 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. 17. On the basis of above analysis of the aforesaid judgments, this Court comes to the conclusion that no directions can be issued for considering the application of petitioner for employment under Dying in Harness Rules. 18. Accordingly, the writ petition is devoid of merits and is liable to be dismissed. 19. The writ petition is dismissed. No order as to costs.