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2012 DIGILAW 410 (ALL)

Ram Chandra v. State of U. P. and Others

2012-02-13

DEVENDRA KUMAR ARORA

body2012
Devendra Kumar Arora, J.;- By means of this writ petition, the petitioner has prayed for a writ in the nature of mandamus for commanding the opposite parties to give appointment under the Uttar Pradesh Recruitment of Dependant of Government Servant Dying in Harness Rules, 1974 (hereinafter referred to as Dying in Harness Rules.). The submission of learned counsel for the petitioner is that petitioner's father Late Gaya Prasad was appointed on muster roll temporary basis and was working at Itaunja Kumhrawan Road in Sthanik Abhiyanta 2nd P.W.D., Lucknow. Thereafter, petitioner's father was transferred to Executive Engineer, Nirman Khand-2 P.W.D., Chhatauni, Dehras Road, Gonda and while working there he died on 17.08.1994. The petitioner's mother made application for compassionate appointment of petitioner on 10.04.1995. When no action was taken by opposite parties, the petitioner made several representation, raising his grievance, but till date no action has been taken by the opposite parties to provide compassionate appointment to the petitioner. Learned Standing Counsel while opposing writ petition, submitted that the petitioner's father was appointed on muster roll temporary basis 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 appointed on muster roll temporary basis, 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 appointed on muster roll temporary basis and even after rendering about 12 years service, his services were not regularised. 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'). 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 appointed on muster roll temporary basis. In the case of State of Haryana and others vs. Tilak Raj and another 2003 SCC (L & S) 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." In the case of Punjab Sate Electricity Board and others vs. Jagjiwan Ram and others (2009) 3 SCC 661 , 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-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 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 he higher scales grant of increments, etc." The Hon'ble Supreme Court in the matter of General Manager, Uttranchal Jal Sansthan vs. Laxmi Devi and others reported in (2009) 7 SCC 205 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:- "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. 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. Recently, Full Bench of this Court in Writ Petition No. 15505 of 2005, 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 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 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. The writ petition is devoid of merit and is dismissed.