Counsel for Petitioner :- S.P. Dubey Counsel for Respondent:- C S C .
Hon'ble Rakesh Srivastava. J.
1. Sri Banwari Lal, the husband of the petitioner and an employee of the opposite parties, unfortunately died in harness. After the death of Sri Banwari Lal, by an order dated 05.09.1985 passed by the Regional Food Controller, Faizabad Region, Faizabad, the petitioner was appointed, on ad-hoc and temporary basis, to the post of Watchman under The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 ("Dying in Harness Rules") and was posted at Bahraich Center. It was stated in the appointment order that since the petitioner was appointed on absolutely ad hoc and temporary basis, the services of the petitioner were liable to be terminated at any time, without notice.
2. In pursuance of her appointment order, the petitioner joined the department and started working. After completing ten years of service, by an order dated 30.04.1998, the services of the petitioner, along with other employees mentioned in the said order, were regularized. The petitioner continued to work in the department till she attained the age of superannuation on 30.09.2005. After her superannuation, the petitioner requested the opposite parties to pay to her the retiral dues to which she was entitled under law. On the representation made by the petitioner, the petitioner was paid Group Insurance, leave encashment etc. Insofar as the pension was concerned, the same was denied to the petitioner on the ground that the petitioner had not completed ten years of "qualifying service" in order to enable the petitioner to claim pension. This led to the filing of the present writ petition.
3. The learned counsel for the petitioner has submitted that the appointment under the Dying in Harness Rules is necessarily a regular appointment. He has submitted that the entire period from the date of initial appointment i.e. 05.09.1985 till the petitioner attained the age of superannuation on 30.09.2005, had to be taken into account while computing "qualifying service" for the purposes of grant of pension. 2
4. On the other hand, the learned Standing Counsel has submitted that the service rendered by the petitioner on ad-hoc basis could not be taken into account while computing the "qualifying service" for the purposes of payment of pension and since the petitioner had less than eight years of regular service to her credit, the petitioner was not entitled to pension.
5. Heard Sri S.P. Dubey, learned counsel for the petitioner and the learned Standing Counsel.
6. The short question to be answered in th e present writ petition is as to whether compassionate appointment under the Dying in Harness Rules could be made on ad-hoc, temporary or daily wage basis or appointment under the said Rules is a permanent appointment.
7. It is settled that appointment in public services are to be made strictly in accordance with merit and in accordance with the procedure provided in the rules. However, compassionate appointment under the Dying in Harness Rules is an exception to the general rule. When an earning member of a family unexpectedly passes away, his whole family is subjected to misery and privation. To mitigate the hardship caused on account of sudden change in the status and affairs of the family and to save the family of the deceased government servant from destitution, the concept of compassionate appointment has been carved out.
8. The object of compassionate appointment has been succinctly stated in the case reported in (1994) 4 SCC 138, Umesh Kumar Nagpal v. State of Haryana. At page 139 of the said report, the Apex Court has made the following observations:-
"As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any 3 means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis."
9. The Dying in Harness Rules have been made in exercise of the power conferred by the proviso to Article 309 of the Constitution of India with the object of providing employment to one member of the deceased government servant in order to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing.
10. The object of the Rules can be achieved only if the appointment under the rules is permanent in nature. An appointment made on ad-hoc, temporary or daily wage basis has no security of tenure. Such an appointment can be terminated at any point time, with or without notice. Compassionate appointment under the Rules, obviously, has to carry some security of tenure or else it would frustrate the very object of the scheme for compassionate appointment. The scheme for compassionate appointment is a rehabilitation scheme and the security of tenure is inherent in an appointment made under the said scheme.
11. The question whether an appointment under the Dying in Harness Rules is a permanent appointment or a temporary appointment came up for consideration before the Division Bench of this Court in the case reported in 1999 (3) UPLBEC 2263, Ravi Karan Singh vs. State of Uttar Pradesh and the Division Bench concluded as follows:-
"1. This petition has come up before us on a reference made by the learned single Judge by his order dated 1 9.12.1997. The point involved is very simple, that is, whether an appointment under the Dying-in-Harness Rules is a permanent appointment or a temporary appointment. According to the learned single Judge, this Court had earlier held that an appointment under Dying - in -Harness Rules is a permanent appointment vide Budhi Sagar Dubey v. D. I. O. S., 1 993 ESC 21 ; Gulab Yadau u. State of U. P. and others, 1 991 (2) UPLBEC 9 95 and Dhirendra Pratap Singh v. D. I. O .S. and others, 1 991 (1) 4 UPLBEC 427. The learned single Judge who passed the referring order dated j 1 9.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.
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.
3. The petition is disposed of accordingly."
12. It is, thus, clear that an appointment under the Dying in Harness Rules is a permanent appointment. It is not open to the opposite parties to make an appointment under the Dying in Harness Rules on ad-hoc, temporary or daily wage basis.
13. In the case reported in (2007) 25 LCD 469, Kishan Lal vs. State of U.P. & Ors. this Court came to the rescue of Kishan Lal, who was appointed under the Dying in Harness Rules on daily wage basis, by directing the opposite parties in the said case, to pass a fresh order appointing Kishan Lal, as regular employee in the same cadre from the initial date of recruitment with all consequential benefits. Paragraph 4 of the said report is being quoted below:-
"4. In view of settled provisions of law appointment of the petitioner as daily wager seems to be not sustainable. Accordingly, a writ in the nature of mandamus is issued commanding the opposite parties to pass fresh order appointing the petitioner from the initial date of his recruitment as regular employee in the same cadre with 5 all consequential benefits keeping in view the observation made hereinabove."
14. Admittedly, the petitioner was appointed under the Dying in Harness Rules. The fact that the initial appointment of the petitioner was made on ad-hoc and temporary basis, and by a subsequent order the services of the petitioner were alleged to have been regularized, is of no consequence. For all practical purposes, the appointment of the petitioner under the Dying in Harness Rules has to be treated to be a permanent appointment.
15. In view of the discussion made above, the writ petition is allowed with cost quantified at Rs 3000. The petitioner is held entitled to the grant of pension with effect from October, 2005. The opposite parties are directed to compute and pay to the petitioner, her outstanding retiral dues including pension, to which she is entitled under law, treating the petitioner to have been substantially appointed w.e.f. 05.09.1985, the date of her initial appointment. The petitioner shall also be entitled to interest @ 8% per annum on the arrears from October, 2005 till the time of its actual payment. The payment shall be made within a maximum period of three months from the date of receipt of a certified copy of this order.
Order Date:- 30.05.2014 Nitesh/I.A .Siddiqui