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2022 DIGILAW 192 (UTT)

Bhupendra Singh v. State of Uttarakhand

2022-07-08

SHARAD KUMAR SHARMA

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JUDGMENT : Sharad Kumar Sharma, J. Before venturing to answer the questions raised by the counsel for the petitioner certain admitted factual backdrop of the present case are necessarily required to be referred to so as to answer the claim, to the question about the entitlement of the petitioner to be considered for the grant of appointment on compassionate grounds. 1. It is not a fact in dispute, that the late father of the petitioner was appointed with the respondents’ department as back as on 08.01.1988, if the reference made to the letter of appointment, if that itself is taken into consideration it clearly spells out that the appointment of the father of the petitioner was as a “Part-time Tube well Operator”. 2. That while working in the said capacity of being a Part-time Tube well Operator, the late father of the petitioner was met with the sad demise on 22.09.2009. 3. That after the sad demise of the father, the petitioner had applied for grant of compassionate appointment, on 10.01.2012, raising his claim to be considered for appointment on compassionate ground. 4. But however, the claim of the petitioner for the grant of compassionate appointment, was not considered, in his favour and the same was rejected by the order dated 10.01.2012 and 12.01.2012. 5. As against the aforesaid orders of rejection of the petitioner’s claim, the petitioner had applause/approached the writ court by preferring a Writ Petition (S/S) No. 465 of 2012. In the said writ petition, the petitioner has portrayed the status of his late father, as to be that of being a Government Servant, as defined under the Dying in Harness Rules of 1974, and that was pleaded in the context and on a premise that the late father of the petitioner would be treated as to be “Temporary Employee” in order to attract the provision of Rules of 1974. 6. The Coordinate Bench of this Court in its judgment dated 10.05.2013, had rather observed, that it was rather rendered incapacitated due to lack of proper assistance extended by the counsel for the respondents in the light of the Full Bench Judgment of this Court on the subject, the Writ petition was allowed, the impugned order of rejection was quashed and the matter was remitted to be reconsidered. 7. 7. This issue arising from the judgment dated 10.05.2013 of the learned Single Judge, was taken before the Division Bench by the State by preferring a Special Appeal No. 300 of 2013, State of Uttarakhand and others vs. Bhupendra Singh, which was decided by the Division Bench of this Court and the Court had dismissed the writ petition, with liberty left open for the petitioner to file a writ petition a fresh, because during the pendency of the Special Appeal, a new facts were pleaded by the petitioner on the basis of the order of 26.10.1998, hence he was granted liberty to file afresh writ petition, consequently, the present writ petition has been filed by the petitioner, praying for the following reliefs:- “It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:- I. Issue a writ, order or direction in the nature of Certiorari quashing the impugned rejection order dated 10.01.2012 and 12.01.2012 issued by the respondents. II. Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 26.10.1998 issued by the respondents. III. Issue a writ, order or directing in the nature of Mandamus directing respondents to issue the appointment order to the petitioner on compassionate ground under Dying in Harness Rules, 1974. IV. Issue any other order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. V. Award the cost of petition in favour of the petitioner.” 8. There are three-fold arguments, which have been extended by the learned counsel for the petitioner. He submits that his late father, would very well fall to be within the definition of the Government Servant as provided under the Rules of 1974, by referring that he was a temporary employee and hence the Rules of 1974, would be applicable. But unfortunately, in the entire writ petition, there is nothing on record by way of any document, as such filed by him, to show that at any point of time the status of the late father of the petitioner, as it was then prevailing on the date of his resolution of appointment as a part-time employee on 04.01.1988, had been ever adorned with the status of being a temporary employee in order to bring him within the definition of a government servant provided under the Rules. The said contention stands fortified, because if the order of 1998, which has been put to challenge in the present writ petition, as a consequences of the liberty granted by the Division Bench is itself taken into consideration thereto, the late father of the petitioner, his status has had to be that of a part–time employee, only. 9. This Court is of the view, that the definition of a “government servant,” under the Rules of 1974, cannot be stretched, with such an elasticity to bring even a part-time employee within the purview of being a “temporary government servant,” because under the service jurisprudence, the classification of the nature of appointment of part-time employee, temporary employee, adhoc employee or even a permanent employee altogether has a different connotations and implications and even different modes of induction into the services. The status of the late father of the petitioner continued to be that of a part time employee, is yet again a fact which stands apparently clear from one of the impugned order dated 26.10.1998, where his status was treated as to be a part time employee. 10. In that eventuality, if the impugned orders which have been put to challenge, as a consequences of the liberty granted by the judgment of the Division Bench, is taken into consideration, the sole reason, which has been assigned by the Superintending Engineer in the impugned order was that the Dying and Harness Rules of 1974, was not applicable over the part time employees, who were appointed with the respondents’ department and which was an aspect reiterated in yet an another order of rejection of claim of compassionate appointment i.e. 12.01.2012. 11. The petitioner has submitted in the writ petition, and also during the course of his arguments, that the late father of the petitioner would be treated, as to be a temporary employee owing to the fact, that subsequently the respondents while drawing the implications from the judgment rendered by the Hon’ble Apex Court in the State of U.P. vs. Prem Singh 2019 (10) SCC 516 , had passed an order on 06.08.2021 whereby the Executive Engineer, while referring the matter of grant of service benefits to the Chief Treasury Officer had directed the extension of pensionary benefits to the family of the deceased employee, by including the period of service as it was rendered as a part time employee. This order of approving the pensionary benefits, by including the said period of service have to be exclusively read only for the purposes of extension of pensionary benefits and its reckoning of that period so as to be included, to satisfy the cut off period prescribed under the service rules for entitlement of an employee to be paid with the pensionary benefits, but said determination of inclusion of the said period of service as part time employee, will in itself cannot be construed to be inferred to adorn a status of temporary employee, to the late father of the petitioner to bring him within the ambit of definition of “Government Servant” as defined under the Rules of 1974, and the logic behind it is that, even if the order, the reference of which has been made by the learned counsel for the petitioner i.e. Order No. 1062 dated 06.08.2021, which was exclusively confined for the purposes of determination of the remittance of family pension, cannot be read for the purposes of appointments to be made on compassionate ground under the Rules of 1974. 12. Even in the said order also, the status of the late father of the petitioner was specifically treated as to be a part time employee only. 13. In that eventuality, the order dated 06.08.2021, on which the learned counsel for the petitioner has heavily relied upon, in fact, it just contrary to its own lis, because the determination of pensionary benefits was given by the Executive Engineer, while treating the status of the employee i.e. of the late father of the petitioner, that of as a part time employee, and, since the benefit accruing from it has been accepted by the petitioner, and family members, it would amount to that it was an admission made by the petitioner, and his family members that the status of the late father of the petitioner was that of a part time employee on the date when he met with the sad demise. 14. 14. Hence, this Court is of the view, that if the definition of the Government Servant, as defined under the Rules of 1974 is taken into consideration, which is extracted hereunder:- “(a) “Government servant” means a Government servant employee 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.” 15. As per opinion of this Court, the part time employee will not fall to be within the zone of consideration as to be a Government Servant, in view of the specific classification of the nature of employment/appointment given in the definition clause itself, and that too when if it is read in consonance to the letter of appointment dated 04.01.1988 and further in consonance to the order of determining the family pensionary benefits by the order dated 06.08.2021. 16. This Court is of the considered view, that since the temporary employee and a part time employee, enjoy a different status altogether, under service jurisprudence, there is no permanency in appointment, hence, they cannot be treated, as to be a person who has been appointed against cadre, post created under law, hence, the Rules of 1974, would not be applicable. 17. In fact, this issue, about the extension of benefit of compassionate appointment under Dying in Harness Rules, qua the interpretation to be given to the definition of Government Servant as defined under the Rules of 1974, came up for consideration before the Full Bench of this Court as reported in 2012 (1) UD 6 Uttarakhand Van Vikash Nigam and another vs. Suresh Chandra Auli, it had specifically observed in its para 10 to 13 that the term “Government Servant”, use under the Rules of 1974, will exclusively denote to a regular employee appointed as against regular vacancy created in the cader as per law and it will not include within its ambit a temporary or even an adhoc employee who could be extended with the benefit of compassionate appointment under the Rules of 1974. The relevant observation, while interpreting the definition of the “Government Servant,” has been assigned by the Full Bench of this Court in para-17 to 27 of the said judgment, which are extracted hereunder:- “17. The relevant observation, while interpreting the definition of the “Government Servant,” has been assigned by the Full Bench of this Court in para-17 to 27 of the said judgment, which are extracted hereunder:- “17. We must understand that though compassionate appointment can be made of a dependant of a deceased Government servant who has died in harness under Rule 5 of the said Rules but such a person who has to be given an appointment must first be a dependant of a “Government servant”. Clearly, a daily rated employee is not a Government servant as visualized under the Dying in Harness Rules, and more particularly under Rule 2 (a) (iii). Therefore, he is not 8 eligible for employment under the Dying in Harness Rules. Broad principles on which appointments under the Dying in Harness Rules can be made, have been reiterated by the Hon’ble Apex Court in a catena of decisions. 18. The Hon’ble Apex Court in Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192 has discussed the object of the said Rules, which was to enable a family of the deceased employee to tide over the sudden crisis resulting due to death of the only bread-winner of the family. However, such a nature of appointment is an exception to the general rule of appointment and an exception cannot subsume the main provision to which it is an exception and therefore nullifying the main provision by taking away completely the right conferred by the main provision. The Hon’ble Apex Court observed as follows : “Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana this Court has taken note of the object underlying the Rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.” 19. In another case, namely, National Hydroelectric Power Corpn. Vs. Nanak Chand (2004) 12 SCC 487 , the Hon’ble Apex Court reiterated the above decision by stating as follows :- “It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises.”(para-5) 20. The object of making appointment on compassionate ground, as we have already noticed above, is an exception to the general rule. The exception is that the family may be able to tide over the sudden difficulty befallen upon it with the death of its only breadwinner, a family which is now left in penury. However, the Hon’ble Apex Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 has cautioned as follows : “The compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the Rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over”. 21. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over”. 21. The same position was again reiterated by the Hon’ble Apex Court in Jagdish Prasad v. State of Bihar, (1996) 1 SCC 301 , where the Hon’ble Apex Court has observed as under :- “The very object of appointment of a dependent of the deceased employees who die-in-harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family.” (para3) 22. In MMTC Ltd. v. Pramoda Dei, (1997) 11 SCC 390 , the Hon’ble Apex Court has held as under :- “As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment, and that mere death of an employee does not entitle his family to compassionate appointment.” (para 4) 23. The Hon’ble Apex Court in S. Mohan v. Government of T.N., (1998) 9 SCC 485 has again reiterated the above position by stating as under :- “The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.”(para 4) 24. In the case of Sanjay Kumar v. State of Bihar, (2000) 7 SCC 192 , the Hon’ble Apex Court stated as under :- “This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood.” (para 3) 25. The Hon’ble Apex Court in the case of Punjab National Bank v. Ashwini Kumar Taneja, (2004) 7 SCC 265 has observed as under :- “It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointment being made on open invitation of application on merits. The Hon’ble Apex Court in the case of Punjab National Bank v. Ashwini Kumar Taneja, (2004) 7 SCC 265 has observed as under :- “It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointment being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.” (para 4) 26. Undoubtedly, “Compassionate appointments” as the very name suggests are appointments based on “sympathy”. All the same, it would mean sympathy in a given contingency. 11 While making such appointments on sympathetic grounds, the Courts cannot loose sight of the facts that where there is one person before the Court who may need a sympathetic view of the Court, yet there are many others who though are not before the Court yet are waiting in the long queue, seeking public employment and an unjust appointment to one would mean violating the rights of hundreds of others, who may have a greater hardship than the petitioner. This is precisely what has been observed by the Hon’ble Apex Court in Ramakrishna Kamat and others v. State of Karnataka (2003) 3 SCC 374 . The Hon’ble Apex Court has stated : “7….While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment.” 27. This Court therefore holds that the dependants of a daily wage employee are not covered under the definition of a “Government Servant” as defined under Section 2 (a)(iii) of the Dying in Harness Rules. Hence, they are not liable to be given employment on compassionate ground under the Rules, irrespective of the numbers of the years such an employee had put in service, prior to his death.” 18. Hence, they are not liable to be given employment on compassionate ground under the Rules, irrespective of the numbers of the years such an employee had put in service, prior to his death.” 18. In that view of the matter, this Court is of the view, that there cannot be an exception which could be drawn with the general rules of appointment, nor it can be permitted to be overridden by special welfare legislation, and particularly when an employee based on whose appointment the compassionate appointment is being sought, is outside the ambit of the definition of Government Servant, as per the principles laid down by the Full Bench judgment of this Court. Hence, this Court is of the view that the impugned orders dated 10.01.2012, 12.01.2012 and 26.10.1998, rejecting the claim of the petitioner for the grant of appointment on compassionate grounds on the ground that the late father of the petitioner till, he met with the sad demise on 22.09.2009, was working as a part time employee, he has been rightly treated as to be a part time employee, exclusively by excluding him to be brought within the purview of the definition of Government Servant and the rejection of the claim cannot be said to be at all suffering from any apparent legal vices calling for any interference under Article 226 of the Constitution of India, hence, the writ petition fails and the same is accordingly dismissed. 19. After the dictation of the judgment, the learned counsel for the petitioner has called upon the Court to answer his pleadings raised in para-20, qua his claim with regard to the references made to the judgments rendered by Allahabad High Court. 20. First of all, these judgments, they have not been brought on record, so no specific judicial scrutinization, can be enabled to be made as to what bearing will it have in the circumstances of the present case, nor the same has been produced by the learned counsel during the course of the argument. 20. First of all, these judgments, they have not been brought on record, so no specific judicial scrutinization, can be enabled to be made as to what bearing will it have in the circumstances of the present case, nor the same has been produced by the learned counsel during the course of the argument. Secondly, the judgments of Allahabad High Court as rendered were prior to the creation of the State, will only have a persuasive value, for the reason being that the Rules of 1974 itself was later on substituted to be amended by the Rules of 2003, governing the field of compassionate appointment which was a rules in force prior to the death of the late father of the petitioner. Apart from it, the judgments referred thereto of the Allahabad High Court since under the constitution in the 7th Schedule, the service falls to be in an exclusive domain of a States jurisdiction. The same analogy of the principle cannot be borrowed to be applied in the State of Uttarakhand. Hence, this plea is not acceptable by this Court and judgment rendered earlier dismissing the writ petition is reiterate, to be sustained.