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Allahabad High Court · body

2017 DIGILAW 1995 (ALL)

KALYANI MEHROTRA v. STATE OF U. P.

2017-08-28

ASHWANI KUMAR MISHRA

body2017
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Heard learned counsel for the petitioner and Sri Ramesh Pandey, learned Chief Standing Counsel, assisted by Himanshu Shekhar Awasthi, Standing Counsel for the respondent State. 2. This petition is directed against an order dated 22.5.2017, whereby petitioner’s claim for grant of compassionate appointment on account of death of her mother, who was employed in the District Rural Development Agency (hereinafter referred to as ‘DRDA’) a society registered under the Societies Registration Act, 1860, has been rejected on the ground that provisions of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to “1974 Rules”) are not attracted. 3. Learned counsel for the petitioner relies upon a division bench decision of this Court in Special Appeal Defective No. 687 of 2010 (State of U.P. and others v. Pitamber) decided on 19.8.2010, wherein this Court has been pleased to hold in para 11 of the judgment that DRDA is a state within the meaning of Article 12 of the Constitution of India. Para 11 of the judgment is reproduced : “11. There is no dispute that the DRDAs are registered as Societies under the Societies Registration Act. DRDAs are registered for each District. The Bye-laws provide for a Governing Body. The powers of the Governing Body has been set out under Bye-law 19 of the Bye-laws. Bye-law 20 provides for other powers conferred on the Governing Body. Bye-law 35 provides the manner in which the Society can sue or be sued. The Memorandum of Association of DRDA provides for Working Committee of the Governing Body, which consists of officers, who hold office in the Working Committee, by virtue of their posts in Government service. The members of the Society hold the post of Chairman or Members or the Executive Director by virtue of the posts they hold in Government service. By virtue of these Bye-laws, the Governing Body can appoint staff subject to the directions issued by the Central Government/State Government. The State Government issued Notification dated 17th March, 1994 which provided for the conditions of service of the employees in respect of employees of DRDA. Once the State Government has issued directions in exercise of its power, the Governing Body is bound by the said directions in the matter of appointment of staff. The power to appoint also includes the power to terminate and/or superannuate. Once the State Government has issued directions in exercise of its power, the Governing Body is bound by the said directions in the matter of appointment of staff. The power to appoint also includes the power to terminate and/or superannuate. The subsequent direction of 9.3.2004 has also been issued by the State Government and would be relatable with the power that it has, under Bye-law 20 (h) of the Bye-laws. Considering the findings recorded by the learned Single Judge in Badloo Ram (supra) and the findings recorded by the Division Bench, to which the learned Judge who decided Badloo Ram (supra) was a Member, being Writ Petition No. 458 (SB) of 2000, Anoop Rai Jain and others v. State of U.P. and others, decided on 24th December, 2009, there can be no dispute that the Society is an instrumentality of the State and, therefore, falling under the expression ‘’State’ within the meaning of Article 12 of the Constitution of India, but its employees cannot be said to be employees of the State in view of the Bye-laws including Bye-law 20 (h). The learned Judge in Kalika Prasad (supra), has not discussed the reason as to why F.R. 56 is applicable. If F.R. 56 was applicable because of Guideline No. 2 (10) of Government Notification dated 17th March, 1994, then it was within the competence of the State Government to also have issued the Government Order dated 9.3.2004. In these circumstances, considering the Government Notification dated 9.3.2004, the age of superannuation of employees of DRDA would be 58 years from that date. Question (1) is answered in the affirmative.” 4. The division bench judgment in State of U.P. v. Pitamber (supra) has been followed by subsequent division bench of this Court in State of U.P. and others v. Yogendra Nath Singh, 2015 (33) LCD 2287. In view of the decisions aforesaid, there is no dispute on the proposition that DRDA is a “state” within the meaning of Article 12 of the Constitution of India and the writ petition would be maintainable against it. Power of the State Government to issue directions, in terms of the bye-laws of DRDA, in the matter of regulating the service conditions of the employees of DRDA is also recognized. In exercise of such power, the State Government has issued a Government Order dated 17.3.1994, for regulating conditions of service of the employees of DRDA. Power of the State Government to issue directions, in terms of the bye-laws of DRDA, in the matter of regulating the service conditions of the employees of DRDA is also recognized. In exercise of such power, the State Government has issued a Government Order dated 17.3.1994, for regulating conditions of service of the employees of DRDA. Para 6 to 13 of the Government order are relevant and are reproduced: 6- lh/kh HkrhZ }kjk fu;qDr deZpkfj;ksa dh T;s"Brk dk fu/kkZj.k le;≤ ij ;Fkk la'kksf/kr m0iz0 ljdkjh lsod T;s"Brk fu;ekoyh] 1991 ds vuqlkj fd;k tk;sxkA 7- fofHkUu Js.kh ds inksa ij lh/kh HkrhZ }kjk fu;qDr O;fDr;ksa dk vuqeU; osrueku ,slk gksxk tSlk ljdkj }kjk le;≤ ij vo/kkfjr fd;k tk;A bl ekxZ&funsZ'k ds izkjEHk gksus ds le; ds osrueku ifjf'k"B *d* esa fn;s x;s gSaA 8- n{krkjksd ikj djus dh vuqefr rc rd ugha nh tk;sxh rc rd fd mld dk;Z vkSj vkpj.k larks"ktud u ik;k tk; vkSj mldh lR;fu"Bk izekf.kr u dj nh tk;A 9- vU; fo"k;ksa dk fofu;eu mu fo"k;ksa ds lEcU/k esa] tks fofufnZ"V :i esa ekxZ&funsZ'k ;k fo'ks"k vkns'kksa ds vUrxZr u vkrs gksa] ftyk xzkE; fodkl vfHkdj.kksa esa fu;qDr O;fDr ,sls fu;eksa] fofu;eksa vkSj vkns'kksa }kjk fu;af=r gksaxs tks jkT; ds dk;Zdyki ds lEcU/k esa lsokjr ljdkjh lsodksa ij lkekU;r;k ykxw gksrs gSaA 10- vuqlwfpr tkfr] vuqlwfpr tutkfr] fiNM+s oxZ rFkkk vU; Js.kh ds O;fDr;ksa ds fy, lsok esa vkj{k.k ls lEcfUèkr HkrhZ ds le; izo`Rr ljdkj ds vkns'kksa ds vuqlkj vkj{k.k fd;k tk;sxkA 11- tgkW jkT; ljdkj dk ;g lek/kku gks tk; fd lh/kh HkrhZ }kjk fu;qDr O;fDr;ksa dh lsok dh 'krkZsa dks fofu;fer djus okys fdlh fu;e ds izorZu ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ gksrh gS] ogkW og ml ekeys esa ykxw gksus okys fu;eksa@mifu;eksa esa fdlh ckr ds gksrs gq, Hkh] vkns'k }kjk ml fu;e dh vis{kkvksa dk ml lhek rd vkSj ,slh 'krksZa ds v/khu jgrs gq,] ftUgsa og ekeys esa U;k;rlaxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh djus ds fy, vko';d le>s] vfHkeqfDr ;k f'kfFky dj ldrh gSA 12- mRrjkapy ds lHkh 8 ftyk xzkE; fodkl vfHkdj.kksa esa lh/kh HkrhZ ds leLr inksa dks mRrjkapy {ks= ds vH;fFk;ksZa esa ls mi;qDr vH;fFkZ;ksa }kjk gh Hkjk tkosxk vkSj bl iz;kstu gsrq mu inksa ds inèkkjdksa dks vius&vius lEoxZ esa i`Fkd milEoxZ gksxk ijUrq bldk izHkko vuqlwpfr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj O;fDr;ksa dh vU; fo'ks"k Jsf.k;ksa ds vH;fFkZ;ksa ds fy, izkfo/kkfur vkj{k.k ij ugha iM+sxkA 13- ftu inksa ds lEcU/k esa fu;qfDr dk izkf/kdkj Jh jkT;iky ;k vk;qDr] xzkE; fodkl foHkkx esa fufgr gS] mu inksa ds in/kkjdksa dks mRrj izns'k ds fdlh Hkh ftyk xzkE; fodkl vfHkdj.k esa LFkkukUrfjr fd;k tk ldsxkA 5. Attention of the Court has further been invited to a subsequent Government Order dated 18.7.2016, whereby employees of DRDA have been absorbed in the Department of Rural Development of the State of Uttar Pradesh. Government Order dated 18.7.2016 reads as under : 1- mi;qZDr fo"k; ds lEcU/k esa eq>s ;g dgus dk funZs'k gqvk gS fd 'kklu }kjk lE;d fopkjksijkUr ftyk xzkE; fodkl vfHkdj.kksa esa lh/kh HkrhZ ls fu;qDr vfèkdkfj;ksa@deZpkfj;ksa dks xzkE; fodkl foHkkx esa rkRdkfyd izHkko ls bl 'krZ ds lkFk lafofyf;r fd;s tkus dh Jh jkT;iky egksn; lg"kZ Lohd`fr iznku djrs gS fd ftyk xzkE; fodkl vfHkdj.k ds dkfeZdksa dks xzkE; fodkl foHkkx esas lafofy;u fd;s tkus ds mijkUr izfrfu;qfDr ij ekuk tk;sxkA bl dkfeZdksa dks xzkE; fodkl foHkkx esa lafofy;u fd;s tkus ds mijkUr izfrfu;qfDr ij ekuk tk;sxkA bu dkfeZdksa ds laoxZ dks **MkbZax dSMj** ?kksf"kr djrs gq;s] u;h ias'ku ;kstuk o"kZ 2005 ls vkPNkfnr djus ,oa lafofy;u ds QyLo:i dksbZ Hkh ykHk iwoZxkeh frfFk ls u fn;s tkus ds lacaèk esa lEcfU/kr dkfeZd ls fodYi izkIr dj vxszRrj dk;Zokgh dh tk;sxhA ;fn fdlh dehZ dks ;g fodYi Lohdkj ugha gS rks mls iwoZ dh vfHkdj.kksa ds lh/kh HkrhZ ds fu;qDr vf/kdkfj;ksa@deZpkkfj;ksa] ftudh la[;k yxHkx&995 gS] dks xzkE; fodkl foHkkx esa lafofy;u fd;k tkrk gSA 2- ;g vkns'k foRr foHkkx ds v'kkldh; i= la[;k&bZ&2@622@nl&2016 fnukad 11 tqykbZ] 2016 esa izkIr mudh lgefr ls fuxZr fd;k tk jgk gSA 6. However, a division bench of this Court in Special Appeal No. 714 of 2015 (State of U.P. and others v. Ajeet Kumar Shahi) has been pleased to consider the constitution of DRDA in the context of applicability of 1974 Rules. The definition under rule 2(a) of 1974 Rules had been examined and it was observed that since employees of DRDA are not a “Government Servant”, therefore, provisions of 1974 Rules would not apply. The observation of the division bench in State of U.P. v. Ajeet Kumar Shahi (supra) is reproduced : “Ex facie, in the present case, the learned Single Judge has not considered the fact that the judgment which was rendered on 26 July 2006 in Smt. Reeta Mishra (supra) was prior to the judgment in Pitamber (supra) which was rendered on 19 August 2010. The judgment of the learned Single Judge in Smt. Reeta Mishra (supra) does not hold that the issue of law cannot be considered as laying down any principle of law as such. The judgment of the learned Single Judge in Smt. Reeta Mishra (supra) does not hold that the issue of law cannot be considered as laying down any principle of law as such. This judgment was subsequently followed by another learned Single Judge in Shaffique Ahmad (supra) on 25 March 2008. The judgment of the Division Bench in Surya Bhan Singh (supra) which was rendered on 21 July 2014 arose in the context of the facts and circumstances which were peculiar to that situation. In that case, there was a judgment of a learned Single Judge which set aside the Government Order dated 22 April 2004, as noticed earlier, and directed fresh consideration of the claim for compassionate appointment. The applicant-petitioner was thereafter appointed on a compassionate basis, but his services were terminated upon expiry of a period of six months, without complying with the principles of natural justice. It is in this background that the Division Bench at Lucknow, by its judgment dated 21 July 2014, held that the termination was an arbitrary exercise of power and the order of the learned Single Judge setting aside the termination did not call for interference. The issue as to whether a person, who is employed in DRDA, is a Government servant within the meaning of Rule 2 (a) of the Rules of 1974 did not fall for determination before the Division Bench in those proceedings since in pursuance of a mandamus issued by a learned Single Judge in earlier proceedings for consideration of the claim, the applicant-petitioner had been appointed on a compassionate basis, which was terminated after a lapse of six months, without complying with the principles of natural justice. That was faulted by the Division Bench as being an arbitrary exercise of power. In fact, the issue as to whether an employee of DRDA is a Government servant within the meaning of Rule 2 (a) is not fallen for consideration before the Division Bench which, in the circumstances, did not notice the judgment in Pitamber (supra). The judgment of the Division Bench dated 21 July 2014 in Surya Bhan Singh ((supra) is not, therefore, in conflict with the basic principle which has been laid down in Pitamber (supra) and was decided on its own facts and circumstances. The judgment of the Division Bench dated 21 July 2014 in Surya Bhan Singh ((supra) is not, therefore, in conflict with the basic principle which has been laid down in Pitamber (supra) and was decided on its own facts and circumstances. For these reasons, we are of the view that the learned Single Judge was in error in allowing the writ petition and while relying upon the earlier judgments, inter alia, in Smt. Reeta Mishra (supra) and in Surya Bhan Singh (supra), directing fresh consideration of the claim of the respondent for compassionate appointment. We, accordingly, allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 24 April 2015. In consequence, Writ Petition No. 23376 of 2015, shall stand dismissed. A copy of this order be placed in Writ Petition No. 23376 of 2015. However, there shall be no order as to costs." 7. The reason assigned to hold that Rules of 1974 would not apply upon employees of DRDA is that employee of DRDA are not the Government Servant. However, while holding the provision of 1974 Rules to be inapplicable upon the employees of DRDA, attention of the Division Bench apparently was not invited to the Government Order dated 17.3.1994, which clearly records that in respect of matters of employment of DRDA employees, which are not covered by the Government Order dated 17.3.1994, the persons employed in DRDA would ordinarily be governed by such provisions, as are applicable upon the employees of the State Government. The provisions contained in para 6 to 13 of the Government Order dated 17.3.1994 clearly contemplates that in the matter of such employees, relevant provisions relating to determination of seniority, application of reservation rules, transfer etc. would all be applicable as are applicable upon the employees of the State Government. Once such is the position, the Rules of 1974, which are applicable upon the employees of the State Government, would also be applicable upon the employees of DRDA. Moreover, by a subsequent Government Order dated 18.7.2016 employees of DRDA have now been absorbed in the department of Rural Development of the State. 8. For the aforesaid reasons, I am of the opinion that the question as to whether provision of 1974 Rules would apply upon an employee of DRDA needs to be considered by a Larger Bench. 9. Moreover, by a subsequent Government Order dated 18.7.2016 employees of DRDA have now been absorbed in the department of Rural Development of the State. 8. For the aforesaid reasons, I am of the opinion that the question as to whether provision of 1974 Rules would apply upon an employee of DRDA needs to be considered by a Larger Bench. 9. Let papers be placed before Hon’ble the Chief Justice with a request to refer following questions to a Larger Bench : (i) Whether in view of the provisions of Government Order dated 17.3.1994, particularly clause 9 thereof, the provisions of the Rules of 1974 would be application upon the employees of DRDA? (ii) Whether the judgment of Division Bench in State of U.P. v. Ajeet Kumar Shahi, Special Appeal No. 714 of 2015, requires reconsideration in light of the Government Orders dated 17.3.1994 and 18.7.2016?