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2019 DIGILAW 1189 (ALL)

Ram Charan v. State of U. P.

2019-05-03

SUDHIR AGARWAL

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JUDGMENT : Sudhir Agarwal, J. 1. Heard Sri R.P. Mishra, Advocate, holding brief of Sri S.K.S. Baghel, learned counsel for petitioner, learned Standing Counsel for respondents and perused the record. 2. Petitioner's father Sri Ram Singh Beldar was working in U.P.P.W.D. and died in harness whereupon vide order dated 30.3.1983 Executive Engineer, National Highway, Construction Division, U.P.P.W.D., Agra appointed petitioner on temporary basis as Beldar in Work Charge Establishment. Thereafter on 4.8.1999, an order was issued by Chief Engineer, Agra Region, P.W.D., Agra that those Work Charge Employees, who have worked continuously for five years may be regularized. Pursuant thereto Executive Engineer, Provincial Division, P.W.D., Agra passed an order dated 11.5.2000 regularizing petitioner on temporary basis with effect from 1.5.2000. 3. Subsequently, order dated 4.8.1999 issued by Chief Engineer, Agra and dated 11.5.2000 issued by Executive Engineer, Provincial Division, Agra, have been cancelled vide impugned order dated 22.7.2000. 4. It is contended that firstly compassionate appointment is given in substantive capacity and, therefore, there is no occasion for regularization on temporary basis and, secondly even otherwise when regularization order was already passed, it could not have been cancelled in violation of principles of natural justice and without any show-cause notice. 5. The first question need to be considered in this case is, "whether compassionate appointment made under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Rules, 1974") could have been temporary or it is always substantive appointment?" 6. I find that there are three authorities on the subject in which it was held that an appointment made under Rules, 1974 is always a permanent appointment. First of all there were three Single Judge decisions in Dhirendra Pratap Singh v. District Inspector of Schools and others, 1991 (1) UPLBEC 427; Gulab Yadav v. State of U.P. and others, 1991 (2) UPLBEC 995 and Budhi Sagar Dubey v. District Inspector of Schools and others, 1993 ESC 21. Thereafter, a Division Bench consisting of Hon'ble Markandey Katju (as His Lordship then was) and Hon'ble Kamal Kishore, JJ, in Ravi Karan Singh v. State of U.P. and others, 1999(3) UPLBEC 2263 , took the same view. 7. A learned Single Judge, taking a different view than what was taken in earlier three Single Judges' judgments, referred the question to Larger Bench and considering such reference, Division Bench in Ravi Karan Singh (supra), said as under: "2. 7. A learned Single Judge, taking a different view than what was taken in earlier three Single Judges' judgments, referred the question to Larger Bench and considering such reference, Division Bench in Ravi Karan Singh (supra), said as under: "2. In our opinion, an appointment under the Dying-in-Harness Rules has to be treated as a permanent appointment otherwise if such appointment Is treated to be a temporary appointment, then it will follow that soon after the appointment, the service can be terminated and this will nullify the very purpose of the Dying-in-Harness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner. We, therefore, hold that the appointment under Dying-in-Harness Rules is a permanent appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments." (Emphasis added) 8. The above Division Bench was followed in another Division Bench consisting of Hon'ble S.K. Sen, C.J. and Hon'ble Ashok Bhushan, J. (as His Lordship then was) in Sanjai Kumar v. Dy. Director General (NCE), Directorate and others, 2002(3) UPLBEC 2748 . 9. Again another Division Bench in Ram Chandra v. State of U.P. and others, 2008(2) ADJ 509 (DB)(LB), following Division Bench judgment in Ravi Karan Singh (supra), said that appointments made under Rules, 1974 are of permanent nature. 10. In the context of Central Government employees, all the above judgments have been examined by a Full Bench of this Court in Sr. General Manager, Ordnance Factory v. Central Administrative Tribunal and others, 2016(2) ADJ 751 . Following three questions were referred to the Full Bench: "1. Where a person is granted compassionate appointment as a member of the family of a deceased employee of the Government who has died in harness in relaxation of the normal rules for recruitment, is it not necessary that even a compassionate appointee be placed on probation in the first instance, in the same manner as any other direct recruit, since the provision pertaining to appointment on probation has not been excluded or exempted in the case of a compassionate appointment; 2. Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, whether there is any violation of law or principle in appointing a person in this category on probation in the first instance; 3. In view of the clear distinction in service jurisprudence between a regular and a temporary appointee, whether the appointment of a person on a compassionate basis on probation is permissible in law? (Emphasis added) 11. Above questions were answered by Full Bench, as under: "26. We, accordingly, answer the questions which have been referred to the Full Bench in the following terms: (1) Re Question (1) : Where a. person is appointed on a compassionate basis as a dependent member of the family of an employee of the State who has died in harness, such an appointment can be made on probation. The object and purpose of appointing a person on probation is to determine the suitability of the person for retention in service. Appointment of a person who is engaged on a compassionate basis on probation is not contrary to law or unlawful. (2) Re Question (2): Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, such an appointee can be placed on probation in the first instance. (3) Re Question (3): The appointment of a person on a compassionate basis on probation is permissible in law." (Emphasis added) 12. Reply to Question (2) clearly shows that Full Bench held that appointment on compassionate basis is a regular appointment and is not to be treated as "temporary appointment". In para 18 of judgment Full Bench clearly observed that there is a distinction between "appointment on probation" and "temporary appointment". The relevant observations read s under: "An appointment on probation does not detract from the nature of the appointment which is to a regular service. Probation is merely an opportunity for the probationer to establish by dint of the work which is rendered during the period of probation, that he or she is suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. Probation is merely an opportunity for the probationer to establish by dint of the work which is rendered during the period of probation, that he or she is suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. There is a well accepted distinction in law and in service jurisprudence between a probationary appointment and a temporary appointment." (Emphasis added) 13. The above authorities have been considered and followed recently by a Single Judge (Myself) in Vikas Mishra v. State of U.P. and others, 2019(3) ADJ 486 . 14. Therefore, I am clearly of the view that appointment having been made on compassionate basis, there was no occasion for respondents to treat the said appointment as temporary and to proceed for regularization. Exercise of regularization was wholly uncalled for and unwarranted. Thus, order dated 30.3.1983 passed by Executive Engineer appointing petitioner as Temporary Beldar, is to be treated as having been made on substantive basis. 15. Now coming to the second question, "when regularization order was already passed, whether it can be cancelled without any show-cause notice or opportunity," though subsequent regularization order is not of much consequence in view of nature of appointment, as already discussed above. 16. Any order of regularization, if cancelled, results in civil consequence. In similar circumstances where an order of confirmation was cancelled without notice, a Division Bench of this Court in D.N. Upadhiya and another v. The State of U.P. and another, 1985 UPLBEC 1112, observed in para 10 as under: "It is, therefore, well established from the law laid down by their Lordships that there can be a substantive vacancy in a temporary post also. In view of the above, the petitioners, who were appointed as Senior Auditors although temporary, would be deemed to have been appointed in a substantive capacity. Once this position is reached, their rights have crystallised. The petitioners were confirmed and subsequently deconfirmed. This could not be done, for their rights had crystallised. " 17. In view thereof, writ petition is allowed. Impugned order dated 22.7.2000 (Annexure 5 to the writ petition) is hereby set aside.