State Of U.P. Thru. Prin. Secy. ... vs Prithi Pal Verma
2023 Latest Caselaw 887 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 9 of 2023
 

 
Appellant :- State Of U.P. Thru. Prin. Secy. P.W.D. Civil Secrt. Lko. And Others
 
Respondent :- Prithi Pal Verma
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- S.P. Singh Somvanshi
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

Order on C.M. Application No.1 of 2023:

1. Heard learned Standing Counsel appearing on behalf of the State and Mr. S.P. Singh Somvanshi, learned counsel for the respondent.

2. This is an application for condonation of delay in filing special appeal.

3. The application is supported with an affidavit, in which the reasons for for delay have been explained sufficiently.

4. Accordingly, application is allowed. Delay, if any, in moving special appeal is hereby condoned.

Order on memo of special appeal:

5. By means of the instant intra court appeal, the State has challenged a judgment and order dated 08.01.2020, passed by Hon'ble Single Judge in Writ Petition No.5025 (S/S) of 2012, directing the appellants to treat the petitioner as a regularly appointed employee and the petitioner was held to be entitled to all consequential benefits, relying upon a judgment and order dated 22.04.2014, passed in Writ Petition No.8258 (SS) of 2009; Komal Vs. State of U.P. and others.

6. Briefly stated, the facts of the case are that the respondent had filed the aforesaid writ petition pleading that his father Chhangoo was initially appointed on the post of Beldar on muster roll/daily wages in the year 1973 and in the year 1980, he was made a permanent muster roll employee and he was paid salary as regular employee. The respondent's father died while he was in service and on 12.12.1997, the petitioner was appointed on compassionate grounds.

7. A copy of the office memorandum dated 12.12.1997 annexed with the writ petition indicates that it was specifically stated in the aforesaid office memorandum that the respondent was appointed in pursuance of the government order dated 16.03.1996, as Beldar, in irregular work charge establishment.

8. The copy of the above referred government order dated 16.03.1996 is available as an annexure to the counter filed in the writ petition, which provides for giving compassionate appointment in the work charge establishment to the dependents of such employees, as had completed ten years or more in service as a work charge employee.

9. The judgment dated 22.04.2014, passed in Writ Petition No.8258 (S/S) of 2009, was passed on the factual premise that "it is not disputed that in the appointment letter, rule has not been mentioned but non-mention of rule will not alter the position as there is no other Government order governing such appointments, such appointment has to be treated to have been made under Rules, 1974 and will be treated to be a regular appointment." In view of the aforesaid factual background, the Hon'ble Single Judge held that "the petitioner has to be treated an employee on regular basis, as such petitioner has made out a case for interference."

10. In the present case, the appointment order dated 12.12.1997 specifically states that the appointment was being made in work charge establishment, under the provisions made by the Government Order dated 16.03.1996, which Government Order makes a provision for appointment in work charge establishment of the dependents of the employee, who died while in service, after completing more than ten years service in work charge establishment. Therefore, the facts of the case, as evident from the material on record of this case, are different from the facts on which Writ Petition No.8258 (S/S) of 2009 was decided.

11. The respondent's father was appointed and was working in work charge establishment and he was not a regular employee. Rule 2-A of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (which will hereinafter be referred to as ''The Dying in Harness Rules') defines the 'Government Servant' 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;"

12. As the respondent's father used to work in a work charge establishment, he would not fall within the scope of the term 'government servant' as defined in Rule 2-A of the Dying in Harness Rules. The petitioner was not appointed on compassionate grounds under the Dying in Harness Rules and the Office Memorandum dated 12.12.1997 specifically states that he had been appointed under the provisions made by the Government Order dated 16.03.1996 as a Beldar in work charge establishment and he was not appointed in a regular manner on a regular post. Therefore, the respondent cannot be treated to have been employed under the Dying in Harness Rules.

13. The respondent has tried to defend the appeal by submitting that several writ petitions of similar nature have been allowed and the special appeals filed against those judgments have been dismissed by coordinate Benches of this Court and in view of those precedents of coordinate Benches, the instant special appeal is also liable to be dismissed.

14. We have gone through the judgments relied upon by learned counsel for the respondent. The Special Appeal (D) No.416 of 2010, titled as State of U.P. Vs. Lalti Devi and Special Appeal (D) No.849 of 2009; State Vs. Buddhi Ram were dismissed by means of orders dated 12.09.2019 and 06.01.2023 respectively. The Special Appeals were filed against the judgment passed by an Hon'ble Single Judge directing that the appointment given to the writ petitioner on compassionate grounds under the Dying in Harness Rules is required to be treated as a regular appointment and the learned counsel for the appellants State could not dispute the legal position that the appointment given under the Dying in Harness Rules is always on a regular basis and, therefore, the judgment passed by learned Single Judge needed no interference. The Division Bench upheld the view taken on appointment under the Dying in Harness Rules is on a regular basis and the same cannot be considered to be on a temporary basis.

15. Special Appeal No.448 (D) of 2014, titled State of U.P. Vs. Komal, decided on 14.08.2014 also arose out of a judgment passed by an Hon'ble Single Judge allowing the writ petition of a person, who had been appointed under the Dying in Harness Rules. The person was employed as a work charge employee. Relying upon the judgments in the cases of Sanjai Kumar Vs. Deputy Director General (NCE), Directorate U.P. Lucknow and others; (2002) 3 UPLBEC 2748 and Ram Chandra Vs. State of U.P. and others; (2008) 2 ESC 1053 holding that the appointment on compassionate grounds is always permanent in nature, the Hon'ble Single Judge held that "it is not disputed that in the appointment letter, rule has not been mentioned but non-mention of rule will not alter the position as there is no other Government Order governing such appointments, her appointment has to be treated to have been made under Rules, 1974 and will be treated to be regular appointment." The Division Bench declined to interfere with the judgment of learned Single Judge given on the aforesaid reasoning.

16. Special Appeal (D) No.435 of 2014, titled as State of U.P. Vs. Babu Lal, decided on 12.08.2014 also arose out of a writ petition filed by a person who had been appointed under the Dying in Harness Rules, who was claiming regularization of his service. The writ petition and the special appeal were allowed on same reason, as were given in Special Appeal (D) No. 448 (D) of 2014, decided on 14.08.2014.

17. In Escorts Ltd. v. CCE, (2004) 8 SCC 335, the Hon'ble Supreme Court held that: -

"8. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, 1951 AC 737 Lord MacDermott observed:

"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,..."

9. In Home Office v. Dorset Yacht Co. 1970 (2) AER 294 Lord Reid said,

"Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances."

Megarry, J. in Shepherd Homes Ltd. v. Sandham, (1971) 1 WLR 1062: "One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament;" And, in Herrington v. British Railways Board, 1972 (2) WLR 537 Lord Morris said:

"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

10. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."

18. In the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 : 2002 SCC OnLine SC 1147 at page 130 the Hon'ble Apex Court has held as under:

"59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

19. In the instant case, the respondent's appointment had not been made under the Dying in Harness Rules and it is specifically mentioned in the Office Memorandum dated 12.12.1997 that the same had been made under the provisions of a Government Order dated 16.03.1996 and, therefore, the ratio of the law laid down in the aforesaid judgments relied upon by learned counsel for the respondent is not applicable to the present case as the facts relating to the appointment of the respondent on compassionate basis under the Government Order dated 16.03.1996, are different from the facts on the basis whereof the Writ Petition No.8258 (S/S) of 2009 and other similar matters relied upon by the learned counsel for the respondent had been decided and we do not find ourselves in agreement with the view taken by learned Single Judge, who has allowed the respondent's writ petition in terms of the judgment and order dated 22.04.2014, passed in Writ Petition No.8258 (S/S) of 2009.

20. The respondent having been appointed in work charge establishment in furtherance of Government Order dated 16.03.1996, cannot be treated to be a regular employee by treating him to have been appointed under the Dying in Harness Rules and he cannot be granted the benefit payable to an employee regularly appointed under the Rules.

21. In view of the aforesaid discussions, the instant special appeal is allowed. The judgment and order dated 08.01.2020, passed by learned Single Judge in Writ Petition No.5025 (S/S) of 2012 is hereby set aside and the writ petition is dismissed.

22. However, there will be no order as to the costs.

(Subhash Vidyarthi, J.)    (Ramesh Sinha, J.)
 
Order Date :- 10.01.2023
 
Ram.