1. Heard Sri Subodh Kumar Verma, learned counsel for the petitioner, learned standing counsel for respondent No.1 and Sri Shishir Jain, learned counsel for respondent Nos.2 and 3.
2. By means of present writ petition, the petitioner is challenging the order dated 21.08.2014, whereby his claim for grant of compassionate appointment due to death of his father has been rejected on the ground that his father was not appointed against a regular vacancy on regular post.
3. Brief fact of the case is that father of the petitioner was granted appointment on the post of Office Assistant on daily wage basis in the year 1979. The petitioner along with some other employees filed a claim petition before the labour court, wherein award was granted in his favour on 05.04.1986. Thereafter, writ petition No.7790 (S/S) of 1991 was filed before this court for issuance of writ of mandamus directing the respondents to ensure regular monthly salary to the members of the association of the petitioner. In the writ petition, following order was passed on 11.08.1993:
"5. Under the circumstances, this writ petition is allowed and a writ of mandamus is issued directing the respondents to pay salary with effect from the date of confirmation as admissible to confirmed employee under the relevant rules, to those forty persons whose names are specified in the order of confirmation (Annexure No.C.A.-2). There shall be no order as to costs."
4. The aforesaid judgment was subject matter of challenge in S.L.P. before Hon'ble Supreme Court, which was dismissed vide judgment and order dated 22.07.1994 (annexure 5).
5. Father of the petitioner died while in service on 21.08.2010. Prior to his death, he was granted benefit of 6th pay commission and time scale equivalent to regular employees of U.P. Rajkeeya Nirman Nigam Ltd. vide order dated 12.01.2010 and 04.05.2010 (annexures 9 & 10 to the writ petition).
6. After death of his father, the petitioner being dependent on the income of his father, to meet out the hardship applied for grant of appointment on compassionate ground under Dying in Harness Rules, 1974.
7. The claim of the petitioner has been rejected vide impugned order dated 21.08.2014 on the ground that father of the petitioner was not a regular employee of the department, therefore, the benefit of U.P. Government Servant Dying in Harness Rules, 1974 is not available to him.
8. Submission of learned counsel for the petitioner is that by means of award granted by labour court, the petitioner's father was made regular and in a writ petition filed before this court direction was issued for payment of regular salary and after affirming the judgment by Hon'ble Apex Court, the petitioner's father was paid regular monthly salary month by month.
9. His next submission is that the benefit of 6th pay commission as well as time scale was also provided to the petitioner's father vide order dated 04.05.2010 (annexure-10) to be equivalent to regular employee. In the light of said, submission of learned counsel for the petitioner is that after serving a long spell of service and granting regular pay scale and other consequential benefits while making consideration of claim of the petitioner it cannot be said that father of the petitioner was not working on regular basis.
10. His further submission is that once father of the petitioner has been granted benefit as regular employee, the claim of the petitioner would not have been rejected on irrelevant ground. He invited attention of this court on definition given under Dying in Harness Rules, 1974 in regard to employee claiming their dependent to make appointment and submits that even if the employee has continued for three years in service on temporary basis, he is entitled for consideration of his claim for grant of appointment under Dying in Harness Rules, 1974.
11. On the other hand, learned counsel for respondent Nos.2 & 3 submitted that a similarly situated employee of the department claimed seniority with effect from the date of regular appointment fixed by the labour court and a writ petition was filed in this regard, wherein this court taking notice of the fact that he was regularized in service in year 1991, therefore, petitioner's claim taking into consideration the service rendered and confirming under the award should be given weightage was declined by this court by dismissing the writ petition vide judgment and order dated 29.08.2012, which is annexure CA-1 to the counter affidavit.
12. Against the judgment and order, Special Appeal No.687 of 2012 was filed before division bench of this court which has also been dismissed affirming the judgment passed by learned single judge. Thus, his submission is that once the claim of an employee similar in nature has been declined by this court holding the date of regularization for consideration of claim of seniority, the petitioner's father cannot be termed to be regular employee on the basis of award granted by labour court from year 1981. He invited attention of this court at paragraph 7 and 10 of the counter affidavit and on the said basis, he submitted that the claim of the petitioner has rightly been rejected vide impugned order. His father was not granted appointment against regular vacancy existed in the department, therefore, on the basis of labour court's award, he cannot claim to be regular employee from the date his father was made regular under the standing orders.
13. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
14. On perusal, it is evident that father of the petitioner on the basis of award of labour court was made regular in service in the year 1981. It is also evident that when regular salary was not paid to the petitioner's father, along with some other employees of the department, the association filed a writ petition before this court claiming regular salary like regular employees of the department. The writ petition was allowed and direction was issued to ensure regular payment of salary. The judgment was challenged before Hon'ble Supreme Court and the SLP was dismissed affirming the judgment. In compliance of the said judgment, the petitioner along with other employees was paid regular monthly salary month by month
15. On perusal of annexure-10 to the writ petition, it is also evident that the petitioner was granted consequential benefits of 6th pay commission and time scale, which reveals that the benefit which was provided under Anneuxre-10 is provided to the regular employees of the department and not to the temporary employees.
16. In regard to judgment relied upon by learned counsel for respondent Nos.2 and 3 that a similarly situated employee claimed seniority with effect from the date of regular appointment granted by labour court award is concerned, it is held that in case of seniority the relevant date for consideration of claim is date of substantive appointment. In that case, the petitioner was granted regularization in the year 1991, therefore, the claim setup by him for consideration of his claim on the basis of award from the year 1981 was not available to him. The claim was totally different that claim setup by the petitioners in their writ petition.
17. The definition under the provisions contained under U.P. Government Servant Dying in Harness Rules, 1971 has been provided as under:
"2. Definitions. - In these rules, unless the context otherwise requires,-
(a) "Government servant" means a Government servant employed 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.
Explanation. - "Regularly appointed" means appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be;
(b) "deceased Government servant" means a Government servant who dies while in service;
(c) "family" shall include the following relations of the deceased Government servant:
(i) Wife or husband;
(ii) Sons;
(iii) Unmarried and widowed daughters;
(d) "Head of Office" means Head of Office in which the deceased Government servant was serving prior to his death."
18. On perusal, it is evident that certain other employees who are continuously discharging their duties on regular basis are also entitled for consideration of his claim for grant of compassionate appointment, where the deceased was employed.
19. Here, in the present case, it is admitted case of the parties that father of the petitioner was granted appointment in year 1981 and continued to discharge his duties till his death. Meaning thereby, there was regular work available in the department.
20. It is also evident on perusal of material on record, that father of the petitioner was provided all consequential benefits like a regular employee. He was granted benefit of 6th pay commission as well as time scale, which clearly demonstrates that the department has treated him as a regular employee.
21. Thus, there is no hesitation to hold that the respondents have committed manifest error of law in passing the impugned order treating the petitioner to be not entitled for consideration of his claim for grant of appointment on compassionate ground.
22. Accordingly, the impugned order dated 21.08.2014 suffers from apparent illegality and is liable to be set aside and is hereby set aside.
23. The writ petition succeeds and is allowed.
24. The respondent No.2 is directed to pass a fresh order in the light of observation made above considering the claim of the petitioner for appointment on compassionate ground in accordance with his qualification within a period of eight weeks from the date of production of a certified copy of this order.
Order Date :- 17.2.2021 Adarsh K Singh