Umesh Kumar vs State Of U.P. And 3 Ors.
2017 Latest Caselaw 3712 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 

 
Case :- WRIT - A No. - 53024 of 2016
 

 
Petitioner :- Umesh Kumar
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Ranjeet Singh
 
Counsel for Respondent :- C.S.C.,Adarsh Bhushan,U.S. Singh Visen,Vinod Kumar Singh
 

 
Hon'ble Yashwant Varma,J.

Heard Sri Ranjeet Singh, learned counsel for the petitioner and Sri U.S. Singh Visen who has appeared for the respondent Nos. 2, 3 & 4.

On 17 July 2017 when the writ petition was taken up, the following orders came to be passed by the Court:-

"This petition has sought a direction for treating the appointment of the petitioner on the post of Conductor as a substantive appointment and for the release of all consequential benefits.

From a perusal of the record it appears that although the father of the petitioner had died in 2001, the petitioner was engaged on contract basis as a Conductor in 2010. This contractual engagement raises certain issues which would warrant the filing of a further affidavit by the Corporation before this writ petition is disposed of finally.

Learned counsel appearing for the Corporation does not dispute the fact that the Uttar Pradesh Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules 1974 applies. It is settled law that an appointment on compassionate basis is of a permanent character subject to the fulfillment of other formalities including undergoing the period of probation if any. The 1974 Rules do not envisage an appointment on contract basis. The third respondent, therefore, by his personal affidavit shall explain to this Court the circumstances under which the petitioner was compelled to accept appointment on contract basis. Learned counsel for the respondent has also relied upon a Government Order dated 11 July 2003 to contend that there was a ban on the making of compassionate appointments. This the Court notes, although in paragraph 14 of the counter affidavit it is asserted that there is no such ban. Learned counsel for the respondent Corporation states that this is a mistake in the affidavit. Assuming it to be so, the Regional Manager in his personal affidavit shall also state whether any appointments on compassionate grounds has been made after 2003 and if so give details thereof including justification for such appointments, while the petitioner was engaged only on contract basis. This personal affidavit of the Regional Manager shall be filed on or before 11 August 2017. List on the said date."

Pursuant to the said order, the Regional Manager in the respondent Corporation has filed his affidavit on 6 August 2017. As per the disclosure made in the said affidavit, it is stated that the mother of the petitioner was not granted appointment on compassionate grounds on account of the fact that she did not possess the minimum qualification. The affidavit then refers to a ban which was imposed by Government Orders dated 17 April 2002 and 11 July 2003. It further refers to subsequent Government Orders issued in 2005, 2010 and 2016 to submit that pursuant to the permissions granted by the State Government, appointments were made on compassionate grounds. An additional plea which is taken by the Corporation and as stands reflected in paragraph 3 of the affidavit is that since the petitioner had applied for appointment on compassionate grounds nine years after the death of the father, no appointment could have been made in his favour in light of "Rule 5 (3)" of the Uttar Pradesh Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules 1974. Along with the affidavit the respondents have also filed a chart of appointments made on compassionate grounds. From the disclosure made therein, it appears that as many as 159 appointments on compassionate grounds have been made by the Corporation.

The father of the petitioner who was posted as a driver in the office of the third respondent is stated to have died while in service on 3 November 2001. The mother of the petitioner thereafter appears to have applied for being granted appointment on compassionate grounds which remained pending with the respondents. On 25 August 2008, a fresh application is stated to have been made by the mother which too went unheeded. A subsequent application is thereafter stated to have been made in 2010 to which the respondents in reply addressed a communication appended as Annexure-4 to the writ petition calling upon the mother of the petitioner to submit the requisite testimonials and certificates to enable them to consider and process the application of the petitioner for appointment on compassionate grounds. On 22 June 2010, however, the respondents addressed a communication to the petitioner asserting therein that in case it be acceptable to him, he may join the Corporation on contract basis. It is pursuant to the said communication that the petitioner proceeded to deposit the security money as demanded and started discharging duties as a Conductor on contract basis with effect from July 2011. The instant writ petition was thereafter filed asserting that the respondents have clearly acted arbitrarily in treating the appointment of the petitioner as being contractual in character even though admittedly he had been considered for appointment on compassionate grounds. The submission was that the treatment of a compassionate appointee as being engaged on contractual basis would be in clear violation of the precedents rendered by this Court which clearly hold that an appointment on compassionate grounds is and must necessarily be permanent in character.

From the disclosures made in the affidavit filed by the respondents, the Court finds that as many as 159 appointments appear to have been made in the Corporation on compassionate grounds starting from 1999 up to 2016. The disclosure made in the chart further establishes that the appointments made from Sl. No. 79 up to Sl. No. 159 have all been made after 2010 and 2011. Although the respondents allude to a prohibition which was operating in terms of the Government Orders issued in 2002 and 2003, this Court finds that various appointments have been made right from 2004 onwards. More importantly, [and which fact is not disputed], it appears the Government Orders of 2005 and 2006 granted permission to the Corporation to appoint 400 and 550 conductors. It is also not disputed that pursuant to the Government Order of 2016, 1200 conductors were granted appointment on compassionate grounds. None of these appointments, made on compassionate grounds, are stated to have been made on contractual basis. The fact that the appointment under the 1974 Rules cannot ever be contractual or be treated as temporary in character needs no reiteration in light of the various decisions of this Court which have consistently taken the view that bearing in mind the nature of appointment which is offered under the 1974 Rules, the appointment must necessarily be treated as permanent in character. The only rider which has since been held to apply is the requirement of the appointee successfully completing the period of probation if so prescribed. This was so held by the Full Bench of the Court in Sr General Manager, Ordinance Factory Vs. Central Administrative Tribunal1. However on the issue which confronts us, there has been no dilution of the principle that an appointment under the 1974 Rules is essentially of a permanent character. One may in this connection refer to the following observations as they appear in the decision rendered by a Division Bench in Ravi Karan Singh V. State of U.P.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 Rule 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."

In Sanjai Kumar Vs. Vs Dy Director General (NCE) Directorate, U.P. Lucknow and others3, a Division Bench of the Court held thus:-

"2. It is not in dispute that before passing the termination order, no show cause notice was served on the petitioner nor the petitioner was given any opportunity to explain his misconduct, if any, irregularity and unauthorised absence. It is true that if the appointment is confirmed, there cannot be simplicitor termination. On the allegation against the petitioner which has been noted by learned Single Judge in his Judgment, it was open for the respondents to have held an enquiry against the petitioner. The learned Single Judge for his decision has placed reliance on a Division Bench Judgment of this Court in 1999 (2) AWC 976, Ravi Karan Singh v. State of U.P. and Ors.. The Division Bench in the aforesaid case has held that an appointment under the Dying in Harness Rules has to be treated as permanent appointment otherwise if such appointment is treated to be a temporary appointment, then it will be followed that soon after appointment, the services can be permanent and this will nullify the very purpose of Dying in Harness Rules.

3. We are of the opinion that the Judgment of learned Single Judge which is based on Division Bench decision in Ravi Karan Singh's case needs no interference in this appeal. However, it will be open to the appellants, if so advised, to proceed in accordance with law. The petitioner respondent No. 1 shall be reinstated in service forthwith and shall be entitled to pay including all consequential benefits as already directed by the learned Single Judge." (emphasis supplied)

Again in Ram Chandra Vs State of U.P. others4, two learned Judges of the Court observed:-

"6. It is admitted case of the parties that father of the petitioner, late Sri Ram Dhiraj was working as Class IV employee in Rajkiya Vastukala Mahavidyalaya, Lucknow who expired while he was in service. The petitioner thereafter moved an application for appointment on compassionate ground under the provisions of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules 1974. It is admitted case of the parties that the petitioner was appointed by the order dated 19.03.1983 on a Class IV post. It is settled law that the appointments made under the provisions of the U.P. Recruitment of Dependents of Government Servants in Harness Rules, 1974 are of permanent nature. Since appointment of the petitioner was of permanent nature, the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975 were not applicable. The impugned termination order dated 10.12.1985 is legally not sustainable."

In light of the position in law which stands settled in this respect, it is clear that the appointment of the petitioner on contractual basis would clearly be in violation of the 1974 Rules. It cannot possibly be disputed by the respondents that the application of the petitioner fell for consideration only on account of the demise of his father while in service. At the time when an appointment was offered to the petitioner, no ban as such operated considering the number of appointments made by the respondents before and after 2010. Assuming that a ban did operate thus fettering the power of the respondents to make appointments on compassionate grounds, the issue which would still merit consideration would be whether the employment of the petitioner could have been continued on contract basis. This issue, however, the Court puts aside for consideration in the latter part of this judgment.

This then takes the Court to consider the issue of whether the respondents were justified in taking the view that the application of the petitioner was not liable to be considered being in violation of a perceived injunction placed by "Rule 5 (3)" of the 1974 Rules. This issue the Court proceeds to rule upon although the order granting a contractual appointment to the petitioner does not refer to any so called comprehended ban imposed by Rule 5 (3) and which is a plea which the respondents have taken for the first time by means of their affidavit dated 6 August 2017. The Court is constrained to enter the above observation for the reason that the order offering a contractual engagement to the petitioner does not rest upon the respondents having arrived at a conclusion that an appointment to the petitioner could not be granted in light of the provisions of Rule 5(3). The offer of contractual engagement was not and is not shown to be borne out of a perceived statutory impermissibility to appoint the petitioner under the 1974 Rules.

Further, as this Court reads sub rule (3) of Rule 5, it becomes apparent that no such prohibition stands engrafted therein. The respondents perhaps seek to take a defence with reference to the first proviso which stands appended to sub rule (1) of Rule 5 and have mistakenly referred to the same as Rule 5(3). As is evident from a reading of sub rule (1) of Rule 5, a prescription is placed to the effect that an application for appointment must be made within five years from the date of death of a Government servant. The first proviso thereafter prescribes that where the State Government is satisfied that the time limit so fixed in this regard causes undue hardship in a particular case, it may dispense with or relax the requirement as noted above. From a plain reading of the said proviso, it is apparent that the same essentially confers a discretion in the State Government to consider and decide applications in respect of grant of compassionate appointment even though the same may have been made five years after the date of death of a Government servant. This power which is primarily a power to condone delay cannot by any means be read as placing a ban or a prohibition on the entitlement of the applicant to seek appointment on compassionate grounds. The view as harboured and comprehended by the respondents [and which stands reflected in paragraph 3 of the affidavit filed pursuant to the order of the Court] is therefore clearly incorrect and unsustainable.

The reason assigned by the respondents for denying a compassionate appointment to the petitioner on this score cannot be sustained for other reasons also. As noted above, firstly the respondents did not deny an appointment to the petitioner on the ground that his application came to be made after the statutory period prescribed under Rule 5 (1). Secondly, even if the respondents had found that the claim of the petitioner was hit by Rule 5(1), they could not have rejected the same on this ground simply because the decision whether to entertain an application or to reject an application made after five years, could have been taken only by the State Government and not the Corporation. The respondents have proceeded in the matter before this Court on the perception that an application made after five years is not to be entertained at all and that the expiry of the said period necessarily leads to an annihilation of the right to be considered under the 1974 Rules. This would, in the considered view of the Court, be a clearly incorrect construct of the 1974 Rules.

Only to reiterate the conclusions arrived at above, this Court only notes that the decision rendered by the Division Bench of this Court in Ravi Karan Singh which has held the field and has clearly held that an appointment on compassionate grounds cannot be treated as temporary or casual by nature. It surely cannot, therefore, be contractual for in such a situation the incumbent stands placed on a footing worse than of a temporary employee.

This then leaves the Court to consider the issue whether the respondents were legally justified in continuing the petitioner on contract basis even though they were ultimately accorded the requisite permissions to effect appointment on compassionate grounds. The answer to this must necessarily be in the negative and against the respondents. There was no justification to place the petitioner in the position of a contract employee even though his engagement was solely on account of him being the son of an erstwhile employee of the Corporation. The Court is further compelled to note that all the applications from serial number 83 to 159 mentioned in the chart filed along with the affidavit dated 6 August 2017, were made after the application of the petitioner dated 25 August 2008. The Corporation never effected compliance with the first proviso to Rule 5 by forwarding the application of the petitioner to the State Government for it to consider exercising its powers to condone delay. This quite apart from the fact that at the time of initial engagement of the petitioner on contract basis, it was not the stand of the respondents that an appointment could not have been offered to him consequent to five years having elapsed from the date of death of his father.

In the end, the only circumstance which the Court would have to take into consideration is the fact that although the petitioner joined and has been working as per his own admission since July 2011 as a contractual employee, he instituted these proceedings only in 2016. In the entire writ petition there is no explanation as to why the petitioner did not approach this Court earlier. There is also no foundation in the writ petition on the question of whether the petitioner was performing duties equivalent or similar to regular employees. Relief (iii) as claimed in the writ petition would, therefore, have to be necessarily moulded so as to even the scales of justice.

In view of the above, the writ petition shall stand allowed in the following terms. The third respondent shall in consequence to the findings returned herein above, treat the petitioner as a regularly appointed compassionate appointee. This shall however not entitle the petitioner to claim differential pay and other emoluments for the period commencing from July 2011 till the filing of the writ petition.

With the aforesaid directions, this writ petition is disposed of.

Order Date: - 28 August 2017                     (Yashwant Varma, J.)
 
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