Allahabad High Court
Atul Kumar Tewari, (In Re 13 S/S 2010) vs State Of U.P.,Thru. Prin. Secy.,Deptt. ... on 18 July, 2019
Bench: Ajai Lamba, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 2 Case :- SPECIAL APPEAL No. - 205 of 2010 Appellant :- Atul Kumar Tewari, (In Re 13 S/S 2010) Respondent :- State Of U.P.,Thru. Prin. Secy.,Deptt. Of Forests & Others Counsel for Appellant :- Lalit Kishore Pandey,Pt.S.Chandra Counsel for Respondent :- C.S.C. Hon'ble Ajai Lamba,J.
Hon'ble Narendra Kumar Johari,J.
(ORAL)
1. Atul Kumar Tewari has preferred this special appeal challenging order dated 06.01.2010 rendered by learned Single Judge while dealing with Writ Petition No.13 (SS) of 2010 titled 'Atul Kumar Tewari Vs. State of U.P. & Ors.'.
2. Learned counsel for the appellant has not appeared to prosecute the appeal.
The appeal relates to the year 2010. 9 years have gone by. We find no justifiable reason to await appearance of the counsel and adjourn the case.
In the above circumstances, with the assistance of Shri Rajeev Ratna Chaudhary, learned counsel for the respondent/State, we have gone through the pleadings and contents of the impugned order.
We have also considered the law on issue.
3. Perusal of the documents placed before us indicate that the appellant/writ petitioner preferred the petition aggrieved by inaction on the part of the respondents to claim appointment on compassionate grounds under U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 (for short '1974 Rules').
4. Learned Single Judge has taken into account the fact that father of the appellant/writ petitioner was engaged on daily wage basis. The said person died. Application for appointment on compassionate grounds was made.
5. It has been held in the impugned judgment that a daily wager or work charge employee would not fall within the definition of government employee as defined under Rules, 1974, therefore, the appellant/writ petitioner is not entitled to appointment on compassionate grounds under 1974 Rules.
6. We find that judgment rendered by learned Single Judge is in conformity with the law laid down by Full Bench of this Court in Pawan Kumar Yadav Vs. State of U.P. and Ors. [2010 (28) LCD 1493]. In the said judgment, in Paras - 22 to 27, the following has been held:-
"22. In Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court has held "it is one thing to say that by reason of such contingencies services of the workcharge employee should be directed to be regularised, but it is another thing to say that although they were not absorbed in the permanent cadre, still on their deaths their dependants would be entitled to invoke the Rules".
23. The regular need of work, of which presumption has been set to arise after working for long number of years and the principles of legitimate expectations, would not mean that there was a regular vacancy. The word 'regular' vacancy has not been defined but that a distinction must be made between a need of regular employees, and the existence of regular vacancies. In Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court said; 'indisputably the services of the deceased had not been regularised. in both the cases the writ petitions were filed but no effective relief thereto had been granted. In the case of late Leeladhar Pandy, allegedly he was drawing salary on regular scale of pay. that may be so but the same would not mean that there existed a regular vacancy".
24. The Supreme Court further went on to explain in para 18 to 20 as follows:-
"18. Indisputably having regard to the equality clause contained in Articles 14 and 16 of the Constitution of India whether the appointment is in a regular vacancy or not is essentially a question of fact. Existence of a regular vacancy would mean a vacancy which occurred in a post sanctioned by the competent authority. For the said purpose the cadre strength of the category to which the post belongs is required to be taken into consideration. A regular vacancy is which arises within the cadre strength.
19. It is a trite law that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance of the constitutional scheme of equality. In view of the explanation appended to Rule 2(a), for the purpose of this case we would, however, assume that such regular appointment was not necessarily to be taken recourse to. In such an event sub-clause (iii) of clause (a) as also the explanation appended thereto would be rendered unconstitutional.
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."
25. In General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court considered and interpreted the expression 'regular vacancy' in respect of same Rules namely U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974. The judgement of the Apex Court interpreting the same Rules and deciding the questions posed before us squarely covers question No.1, in favour of the State and is binding on the High Court.
26. On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra), we answer the questions posed as follows:-
"1. A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a 'Government servant' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules.
2. The judgements in Smt. Pushpa Lata Dixit Vs. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi Vs. State of U.P. (Writ Petition No.24231 of 1998 decided on 2.3.1998); State of U.P. Vs. Maya Devi (Special Appeal No.409 of 1998); Santosh Kumar Misra Vs. State of U.P. & Ors., 2001 (4) ESC (Alld) 1615; and Anju Misra Vs. General Manager, Kanpur Jal Sansthan (2004) 1 UPLBEC 201 giving benefit of compassionate appointment to the dependants of daily wage and workcharge employee have not been correctly decided."
27. All the writ petitions are consequently dismissed. The delay in filing the Special Appeal Nos.845 (D) of 2009; 595 (D) of 2002; 610 (D) of 2003 and 1170 (D) of 2007 has been sufficiently explained and is accordingly condoned. The Special Appeal Nos.845 (D) of 2009; 595 (D) of 2002; 610 (D) of 2003; 1284 of 2010; 1849 of 2009; 1170 (D) of 2007; 85 of 2004 and 567 of 2008 are allowed. The judgements of learned Single Judge challenging these appeals are set aside and the writ petitions are dismissed."
(Emphasised by us)
7. Considering the law as laid down by the Full Bench, as noticed above in extenso, we are in no doubt that the legal position in regard to the issue raised by virtue of the special appeal has been settled. It has been held that a daily wager and work charge employee employed in connection with the affairs of the Uttar Pradesh would not fall within the definition of 'Government Servant' within the meaning of Rule 2(a) of 1974 Rules. It has been held categorically that the dependants on death of such employee in harness would not be entitled to compassionate appointment under 1974 Rules.
8. In view of the law laid down by the learned Full Bench, the appellant/writ petitioner would not be entitled to appointment on compassionate ground under 1974 Rules for the reason that his father, who died in harness, served on daily wage basis and therefore cannot be considered as 'Government Servant' within the meaning of Rule 2(a) of 1974 Rules.
9. In view of the settled proposition of law, as extracted above, we find no reason in law or in facts to show indulgence.
10. Accordingly, the appeal is dismissed.
Order Date :- 18.7.2019 Nishant/-