Ram Singh vs State Of U.P. And 3 Others
2022 Latest Caselaw 19655 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on: 30.8.2022
 
 Judgment delivered on : 3.12.2022
 
Court No. - 33
 

 
Case :- WRIT - A No. - 10743 of 2014
 

 
Petitioner :- Ram Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- P.C. Singh,Sumitra Singh
 
Counsel for Respondent :- C.S.C.,Awdhesh Kumar
 

 
Hon'ble Ashutosh Srivastava,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Shri Awdhesh Kumar, learned counsel for respondent Nos. 2 to 4 and perused the record.

2. By means of present writ petition, petitioner has prayed to issue a writ of certiorari quashing the order dated 28.12.2012 passed by respondent No. 2.

3. In nutshell the case of the petitioner is that petitioner's father  Kodai Singh who was working on the post of Peon under Basic Shiksha Parishad died-in-harness. The petitioner moved an application for compassionate appointment under the Dying in Harness Rules.

4. Learned counsel for the petitioner submits that by order dated 23.6.1987 passed by the competent authority, petitioner was appointed on class IV post on compassionate grounds and joined on the post of Peon on 1.7.1987 in Kanya Junior High School, Ahara, Block Bankati, District Basti. On 25.1.1994, the respondent No. 2 transferred the petitioner from Kanya Junior High School to Junior High School Aamchandi, Block Bankati, District Basti where the petitioner is working on the post of Peon. On 11.3.2008/28.3.2008, an order was passed by the respondent No. 2 by which the petitioner was given selection pay scale. Thereafter, the petitioner made several representations to the respondent No. 2 requesting him to treat the petitioner as permanent employee and pay the pay scale applicable to the permanent employee with effect from his date of appointment as 1.7.1987.

5. Learned counsel for the petitioner submits that when no action has been taken, the petitioner has moved writ petition being Writ-A No 47135 of 2012, which was decided on 14.9.2012 with the direction to the BSA Basti to decide the claim of the petitioner within two months. When direction of this Court was not complied with, the petitioner filed a Contempt Petition No. 4493/2013 which was decided on 20.9.2013 with the direction to the respondent to decide the claim of the petitioner within six weeks. Being annoyed from the aforesaid order, the respondent No. 2 rejected the claim of the petitioner on 28.12.2013 stating that before 24.8.1995 there was ban on appointment on the post of Peon/Class IV and the ban was lifted on 24.8.1995 and as such after 24.8.1995 the regular pay scale was given to the petitioner.

6. Learned counsel for the petitioner while challenging the impugned order submits that petitioner's appointment is of permanent nature and it is not temporary or daily wages and contrary to law as laid down by Division Bench of this Court as well as by Hon'ble Supreme Court in the cases of Ravi Karan Singh Vs. State of U.P. And others ( 1999) 3 UPLBEC 2263, Om Prakash versus State (2000) 2 UPLBEC 1449 and Rajesh Kumar versus State (2002) 3 UPLBEC 2256 and as such, petitioner is entitled for regular appointment/salary on the post in question .

7. Sri Awdhesh Kumar, learned counsel appearing on behalf of the respondents  in opposition to the writ petition submits that the petitioner was appointed under Dying in Harness on 23.06.1987 on Class- IV on fixed pay of Rs. 305/- per month in the Junior High School Ahara, Block Bankati, thereafter in accordance with Govt. Order dated 24.08.1995 the petitioner was given regular salary on 16.10.1996 and he was posted at Purva Madhyamik Vidyalay Aamchandi, Block Bankati. It is submitted that petitioner was appointed on 23.06.1987 on fixed pay and his services were regularized on 16.10.1996, but neither he has given any representation or agitated in any other manner that his appointment on fixed pay on 23.06.1987 is bad. He filed a Writ-A No. 47135 of 2012 at highly belated stage for promotional pay scale, which has been disposed of by this Hon'ble Court vide order dated 14.09.2012. Therefore, it is construed that the petitioner was accepted appointment on fixed pay in the year 1987 and he had no grievance for the same till 2012 or 2014, it means that he has waived his right whatever he had at the time of appointment at this belated stage after 25 years his prayer from this writ petition cannot be granted by this Hon'ble Court

8. This Court has heard the learned counsels for the parties and perused the record.

9. Perusal of the record reveals that petitioner was appointed on Class IV posts on a fixed Rs. 305/-. Thereafter, he continued to work in Kanya Junior High School, Ahara, Block Bankati, District Basti. On 25.1.1994, he was transferred and joined his duties at Junior High School Aamchandi, Block Bankati, District Basti. By order dated 11.3.2008/28.3.2008 petitioner was given selection pay scale.

10. Learned counsel for the petitioner relies upon the decision of the Court in Umesh Kumar v. State of U.P. And 3 Others [2017 (9) ADJ 327] and contends that an appointment on compassionate grounds cannot be made on contractual terms/fixed terms. 

11. So far as the issue of appointment on compassionate basis on contractual terms is concerned, undisputedly that question was duly considered by the Court in Umesh Kumar and answered in the following terms: -

"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 v. Central Administrative Tribunal, 2016(2) ADJ 751. 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., 1999 (3) UPLBEC 2263:

''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.''

12. In Sanjai Kumar v. Dy Director General (NCE) Directorate, U.P. Lucknow and others, 2002 (3) UPLBEC 2748, a Division Bench of the Court held thus:

13. ''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 Ravi Karan Singh v. State of U.P. and others, 1999 (2) AWC 976. 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) 

13. Again in Ram Chandra v. State of U.P. others, 2002 (3) UPLBEC 2748, 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 19.3.1983 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."

14. The Court further notes that an objection similar to the one urged here and resting on Rule 5(1) was asserted in that writ petition. Dealing with the said objection the Court held as follows:-

" 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."

15. Exactly an identical position on facts prevails in the present matter also. The order granting appointment on compassionate basis does not rest on the fact that the application had come to be made 5 years after the death of the employee. In fact it was the respondents who chose to accord appointment without referring the matter to the State Government as contemplated in terms of the Proviso to Rule 5 (1). Having once granted appointment, it would not be open to the respondents to now assert that the initial appointment was irregular for want of permission of the State Government.

16. The Court has been apprised that the decision in Umesh Kumar was affirmed by the Division Bench of the Court in light of its judgment dated 24 November 2017 passed on Special Appeal Defective No. 578 of 2017. The Special Leave Petition taken against the aforesaid decision also came to be dismissed on 09 March 2018 by the Supreme Court. For the reasons afore noted, the Court thus comes to the conclusion that the petitioner is entitled to succeed in his challenge to the action of the respondents.

17. For the foregoing reasons, the writ petition is allowed. The impugned order dated 28.12.2013 passed by respondent No. 2 is set aside. The respondent no.2 is directed to re-examine the matter afresh in the light of the observations made herein above, expeditiously, preferably within a period of two months from the date of service of certified copy of this order.

Order Date :-  3.12.2022

Ravi Prakash