Hon'ble Narendra Kumar Johari,J.
(C.M. Application No. 38716 of 2006).
1. The application seeks condonation of delay in filing the special appeal.
2. Learned counsel for non-applicant/respondent has no serious objection to condonation of delay.
3. For reasons given in the affidavit in support of the application for condonation of delay, and for the reason that counsel for non-applicant/respondent has not opposed the condonation of delay, the application is allowed.
Delay in filing the special appeal is hereby condoned.
4. On request of learned counsel for the parties, the appeal is being taken up for hearing today itself.
Order Date :- 30.7.2019 Nishant/-
Case :- SPECIAL APPEAL No. - 781 of 2006 Appellant :- State Of U.P. Thru Prin.Secy. Lok Nirman & 4 Ors.
Respondent :- Tara Devi ( S/S 4014/2006 ) Counsel for Appellant :- Standing Counsel Counsel for Respondent :- A.M. Tripathi Hon'ble Ajai Lamba,J.
Hon'ble Narendra Kumar Johari,J.
(ORAL)
1. State of U.P., through Principal Secretary, Lok Nirman Vibhag, U.P., Lucknow and four other State functionaries have preferred this intra-Court appeal challenging order dated 08.05.2006 rendered in Writ Petition No.4014 (SS) of 2006 titled 'Tara Devi Vs. State of U.P. and Ors.'.
Vide the impugned order, learned Single Judge allowed the writ petition while issuing mandamus to consider the case of the petitioner for appointment on compassionate grounds in the light of observations made in the order, and judgment cited in the order, within a period of two months of production of certified copy of the order.
2. We have heard learned counsel for the appellant/State Shri Rajeev Ratna Chaudhary and learned counsel for the respondent.
We have carefully gone through the contents of the impugned order.
3. Learned counsel for the appellant/State has stated that admittedly husband of respondent/writ petitioner was serving on daily wage basis when he died. In such circumstances, the deceased would not fall within the definition of "Government Servant" within the meaning of Rule 2(a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 (for short 'the Rules of 1974). In such circumstances, the case is covered by decision rendered by Full Bench of this Court rendered in Pawan Kumar Yadav Vs. State of U.P. and Others [2010 (28) LCD 1493]. The law does not favour the cause of respondent/writ petitioner.
4. Learned counsel for respondent/writ petitioner does not dispute that the husband of the respondent/writ petitioner was serving on daily wage basis. However, learned counsel for respondent/writ petitioner has impressed on the Court that in compliance of the order passed by the Writ Court, after contempt petition had been filed, the respondent/writ petitioner was allowed to join vide appointment letter dated 23.06.2007. In such circumstances, the service of the respondent/writ petitioner be regularised.
5. We have considered the rival contentions. This Court while dealing with Special Appeal No.371 of 2007 titled 'State of U.P. & Ors. vs. Rama Devi', in reference to judgment rendered by Full Bench of this Court in Pawan Kumar Yadav's case (supra), has held in the following terms in Paras - 9 to 12:-
"9. From the pleadings, it can clearly be deciphered that the deceased employee, who died in harness, was a work charge employee. The widow applied for appointment on compassionate ground in lieu of services rendered by her husband on work charge basis. The learned Single Judge relied on two decisions vide which the Government Order dated 29.1.2003 had been stayed to uphold the right of the respondent/writ petitioner to claim appointment under 1974 Rules.
10. While referring to the judgment rendered by the Full Bench in Pawan Kumar Yadav's case (supra), we find that the issue involved in this appeal has been specifically dealt with and decided. Paras 22 to 27 of the judgment rendered in Pawan Kumar Yadav's case (supra) read as under :
"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)
11. In the considered view of the Court, the law settled by learned Full Bench is required to be followed, vide which it has been clearly held, as can be noticed from the above extracted portion of the judgment, 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.
12. In view of the law laid down as settled by the Full Bench, we hereby allow this appeal. The impugned order dated 27.11.2006 is hereby set aside."
6. It being not in dispute that the deceased employee was serving on daily wage basis, it is hereby held that he would not fall within the meaning of 'Government Servant' as defined under Section 2(a) of the Rules of 1974. In view of the said statutory provisions it has to be held that the respondent/writ petitioner would not be entitled to benefit of the beneficial legislation viz. U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974.
7. In view of law laid down vide judgments referred to above, the appeal is allowed.
Impugned Order dated 08.05.2006 passed by learned Single Judge being contrary to the law is hereby set aside.
8. So far as contention of learned counsel for the respondent/writ petitioner in regard to regularisation in service is concerned, we have referred to appointment letter dated 23.06.2007, photocopy of which has been given to us during the course of hearing, and is taken on record. Condition No.4 of the order of appointment makes it clear that the respondent/writ petitioner was allowed to join subject to the decision in Special Appeal No.781 of 2006 titled 'State of U.P. & Ors. Vs. Tara Devi viz. this case. In such circumstances, we are unable to convince ourselves to regularise the service of the respondent/writ petitioner.
We have taken judicial notice of the fact that after decision was rendered by the Writ Court on 08.05.2006, apparently Tara Devi filed Contempt Petition No.846 of 2007. Fearing action under the Contempt of Courts Act, 1971, it appears that appointment letter dated 23.06.2007 (supra) was issued, however which is subject to the decision of this special appeal. The respondent/writ petitioner accepted the condition by virtue of joining service under letter of appointment dated 23.06.2007. In such circumstances, we do not find any reason in law to allow continuance of the respondent in service, because right from the inception, the claim made by the respondent/writ petitioner is not in terms of provisions of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974.
Order Date :- 30.7.2019 Nishant/-