Allahabad High Court
State Of U.P. Thru. Prin.Secy., ... vs Kuldeep Thakur (Inre 10144 S/S 2016) on 1 March, 2017
Author: Sanjay Harkauli
Bench: Amreshwar Pratap Sahi, Sanjay Harkauli
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Civil Misc. Application No.22229 of 2017 [Application for Condonation of Delay in Filing the Special Appeal] In Re Case :- SPECIAL APPEAL DEFECTIVE No. - 89 of 2017 Appellant :- State Of U.P. Thru. Prin.Secy., Agriculture & 3 Others Respondent :- Kuldeep Thakur (Inre 10144 S/S 2016) Counsel for Appellant :- Standing Counsel Counsel for Respondent :- Km. Vishwa Mohini Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
Heard learned counsel for the appellant.
The cause shown for delay condonation application is sufficient.
The application is allowed. The delay is condoned and the appeal shall be treated to be within time.
Order Date :- 1.3.2017
RajneeshDrPs)
[Sanjay Harkauli,J.] [Amreshwar Pratap Sahi,J.]
[A.F.R.]
Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 89 of 2017
Appellant :- State Of U.P. Thru. Prin.Secy., Agriculture & 3 Others
Respondent :- Kuldeep Thakur (Inre 10144 S/S 2016)
Counsel for Appellant :- Standing Counsel
Counsel for Respondent :- Km. Vishwa Mohini
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
Heard Sri Q.H. Rizvi, learned Additional Chief Standing Counsel for the appellant State and Km. Vishwa Mohini the learned counsel for the sole respondent who submits that so far as the claim of the compassionate appointment is concerned, the same was dependent on the regular status of employment of the father of the respondent.
Learned counsel for the State submits that since he had not been regularized, therefore in view of the judgment of the Full Bench of this Court in the case of Pawan Kumar Yadav Vs. State of U.P. & others, reported in (2911) 1 AWC 1028, Civil Misc. Writ Petition No.15505 of 2005, decided on 22.09.2010, the claim of the respondent petitioner ought not have been decreed by the learned Single Judge and therefore, the impugned order deserves to be set aside.
The sheet anchor of the argument therefore is based on the answer given by the Full Bench judgment which is extracted hereinunder:-
"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."
Replying to the aforesaid submissions learned counsel for the respondent petitioner submits that the termination of employment or even death of the employee does not absolve the employer from taking into consideration the status of the employment, more so in the present facts where the Government order dated 13.08.2015 had already intervened calling upon the State Government and its department to consider the regularization of such employees and therefore, once the consideration about the father of the respondent was under progress, and a list had been forwarded, the State Government ought to have concluded the same and on the strength of said decision, could have taken a decision with regard to the claim of the respondent petitioner.
It is urged that having not done so, the order impugned in the writ petition which did not contain any reason deserved to be quashed. It is therefore submitted that the learned Single Judge has not committed any error in proceeding to issue direction for consideration of the employment of the respondent petitioner on compassionate basis treating his father's services as having been regularized.
We have considered the aforesaid submissions raised and so far as the ratio of the Full Bench judgment of Pawan Kumar Yadav (supra) is concerned, there is no doubt that the claim of compassionate appointment of the dependant of a daily wager or a work charge employee is not admissible.
The order which was impugned in the writ petition refusing to consider the claim of the respondent petitioner dated 11.04.2016 simply states that the claim of the respondent petitioner was not found feasible as per the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. The name of the petitioner's father has been mentioned as a daily wager but no reason has been given for declining the request. There is no consideration about the claim of the regularization of the father of the respondent petitioner. The order dated 11.04.2016 is thus clearly unsustainable in law.
The issue and circumstances of the nature presently involved do not appear to have been the matter of reference in the case of Pawan Kumar Yadav (supra). All the cases, the illustration whereof was given in para-9 of the Full Bench judgment, does not appear to be similar on facts as presently involved.
However, in the present case, this claim has to be looked into from the point of view that the father of the respondent petitioner was entitled for being regularized in view of the terms and conditions of the Government order dated 13.08.2015. This consideration process had already commenced and the name of the father of the respondent petitioner had already been forwarded but no decision had been taken, and in between in October, 2015, the father of the respondent petitioner died.
Learned counsel for the respondent therefore has pressed into service the judgment in the case of Prem Ram v. Managing Director, Uttarakhand Pay Jal & Nirman Nigam, Dehradun and others, (2015) 3 UPLBEC 1766, to urge that the termination of the employment or the death of the employee would not make any difference with regard to consideration of regularization in the above circumstances. We have examined paragraph-9 of the said judgment where also the employee had already retired from service yet the Apex Court came to the conclusion that since the tenure of the person who was claiming such benefit had to be regularized, then in that event the Apex Court in view of the Articles 14 and 16 of the Constitution of India having been violated, ruled that such benefit would also accrue to the said claimant and consequently, issued direction for his consideration though he had retired from service. In that case similarly placed junior employees had been regularized.
Applying the said analogy, the claim of the father of the respondent petitioner had already been forwarded and he was very much alive when the Government order dated 13.08.2015 was issued. In such a situation the State Government or its concerned department ought to have considered the claim of the respondent petitioner for regularization and then could have proceeded to determine as to whether the respondent petitioner was entitled to any benefit or not. In our opinion, the fortuitous circumstance of the death of the father of the respondent petitioner does not absolve the State Government of its obligation to consider the claim of regularization of the father of the respondent petitioner. There can be a case where the consideration has been made and the regularization accepted but before the order reaches a man dies or his death takes place in the near vicinity or simultaneously with regularization. In this situation, the claim of regularization of the deceased employee does not remain an option to be ignored by the State Government. The State Government or its authorities are under an obligation to consider such a claim and to award any consequential benefits if the process has been set into motion as has happened in the present case. Once the father of the respondent petitioner is found entitled to be regularized as on the date of the Government order dated 13.08.2015, on which date he was admittedly alive, then in that event the claim of the respondent petitioner can also be considered.
The consideration of the right of being regularized by operation of law while in force had already accrued in favour of the father of the respondent petitioner, and his death in between further gave rise to the expected consequential claim of compassionate appointment of the petitioner, provided his father's services were declared regular. The consideration of such right, whether had accrued, does not get eclipsed nor could it be abandoned. If the consideration results in the services of the petitioner's father becoming regular, then the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be an impediment for the respondent petitioner to be considered for compassionate appointment. The appellant State and it's authorities therefore cannot escape this exercise and defeat the right of consideration by their inaction or the absence of timely and prompt action. Such exercise of consideration will not evaporate because of untimely death which is a fortuitous circumstance so as to result in any advantage to the State.
Apart from this, in the present case those who were at par with the father of the respondents had been extended the benefit of regularization. This distinguishing feature therefore is in addition to the issues involved in the case of Pawan Kumar Yadav (supra) and consequently, the claim of the respondent petitioner was at least entitled for consideration by the State Government in the light of the observations made hereinabove.
Learned counsel for the appellant State submits that the services of the father of the respondent petitioner could not be straight away treated to have been regularized and the learned Single Judge erred in issuing directions for consideration of appointment on compassionate basis of the petitioner. We agree with the submissions of the learned standing counsel for the appellant and to that extent, the judgment cannot be sustained. Learned Single Judge also does not appear to have noted the judgment of Pawan Kumar (supra).
Consequently, we modify the judgment dated 22.11.2016 to the extent that it shall be open to the appellant State to consider the status of regularization of the father of the respondent and then proceed to take an appropriate decision with regard to the claim of the respondent petitioner for compassionate appointment in the light of the observations made hereinabove.
We may however clarify that the ratio of this judgment would be available only prospectively and should not be construed to reopen any decided matter or to initiate a stale claim.
The appeal is partly allowed and accordingly disposed of. The impugned judgment shall stand modified to that extent.
Order Date :- 1.3.2017
RajneeshDrPs)
[Sanjay Harkauli,J.] [Amreshwar Pratap Sahi,J.]