Rakesh Singh vs State Of Uttarakhand & Others
2021 Latest Caselaw 1833 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                    Writ Petition (S/S) No. 640 of 2021

Rakesh Singh                                                       .......Petitioner

                                           Vs.

State of Uttarakhand & others                                          .....Respondents

With Writ Petition (S/S) No. 642 of 2021

Jitendra Singh .......Petitioner

Vs.

State of Uttarakhand & others                                          .....Respondents

                                         With
                    Writ Petition (S/S) No. 643 of 2021

Sanjeev                                                            .......Petitioner

                                           Vs.

State of Uttarakhand & others                                          .....Respondents

                                         With

                    Writ Petition (S/S) No. 644 of 2021

Naresh Kumar                                                       .......Petitioner

                                           Vs.

State of Uttarakhand & others                                          .....Respondents

Mr. Tribhuwan Chandra Pandey, Advocate, for the petitioners. Ms. Anjali Bhargava, Standing Counsel, for the State of Uttarakhand.

Hon'ble Sharad Kumar Sharma, J (Oral)

(Via video conferencing)

In all these writ petitions, the petitioners are the persons, who are claiming a writ of mandamus, whereby they have prayed for commanding the

respondents for regularizing their services, as a consequence of their appointment which was under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, though on a daily wage basis, which is contrary to the rules, and as per the law laid down by the Courts, in that regard.

2. Since all these writ petitions engage a common question of facts and law, hence for the purposes of brevity, with the consent for the counsel for the parties, they are being decided together. Short facts which are being dealt with in respect of each case are as follows:-

(A) In Writ Petition No.640 of 2021, "Rakesh Singh Vs. State of Uttarakhand & others", the petitioner had come up with the case, that his father, who was appointed with the respondents as a daily wager i.e. with the PWD, Dugadda, Pauri Garhwal, was later his services were put into a work charge establishment on 26.11.1988, and while discharging his services, in the work charge establishment, he met with the sad demise on 22.07.2009, after rendering of about 21 years of satisfactory and unblemished service. Since the sole bread-winner of the family i.e. late father of the petitioner has died, the petitioner had applied for the grant of compassionate appointment, under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, the same was favourably considered and ultimately the petitioner was appointed on compassionate grounds as "Beldar", but though on daily wages basis on 22.04.2010.

The contention of the petitioner, before this Court is that, ever since then, he is regularly working as a daily wager on the post of "Beldar", and his

claim for regularization, which he has prayed for, by filing a representation on 21.01.2021, is pending consideration and no decision has been taken on the same, as such, as of now by the respondents.

(B) In Writ Petition No.642 of 2021, "Jitendra Singh Vs. State of Uttarakhand & others", the petitioner has come up with a case in the writ petition is that his father, who was initially appointed with the PWD, Dugadda, Pauri Garhwal, as a daily wager employee, was later on also placed in the work charge establishment, on 26.11.1988, on the post of "Marg Anurakshak", and ever since then he had an unblemished service record, and while in harness, the father of the petitioner has met with the sad demise on 21.10.2010, after rendering of 22 years of satisfactory service. The petitioner's contention, before this Court is that he had applied for being granted appointment on compassionate grounds by filing an appropriate application, and considering the application and the petitioner's eligibility, for the post, based on the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, the petitioner was given an appointment, on 26.04.2011, on the post of "Marg Anurakshak". His contention in the writ petition is that ever since then he is working satisfactorily with the respondents, and has an unblemished service record as s daily wager, but his claim for regularization of services, based on the representation dated 22.01.2021, has not yet been considered, and he is being deprived with an equivalence of service benefits as it had being paid to the regular employee.

(C) In Writ Petition No.643 of 2021, "Sanjeev Vs. State of Uttarakhand & others", the petitioner had come up with a case, that the late petitioner's father, who was working as a "Beldar" on a daily wages basis in PWD, Dugadda, Pauri Garhwal, after rendering the satisfactory and unblemished service was placed in a work charge establishment, on 01.11.1992, and there he had worked, in the said capacity till he met with the sad demise on 05.11.2011, after rendering of about 15 years of continuous and unblemished service. The petitioner's contention in this writ petition too is that on the death of his father, he has filed his application for being granted an appointment, under the provisions of U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, and the respondents on considering his application had granted an appointment to the petitioner on the post of "Beldar", but on a daily wages basis, by virtue of an order dated 01.03.2010. The grievance of the petitioner is that despite of being appointed with effect from 01.03.2010, under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, as "Beldar", his services has not been regularized and hence there is a sense of deprivation prevailing with him because equivalent service benefits as that of regular employee on same post has not been paid to him as that of a regular employee, and hence, he has represented before the respondents on 21.01.2021, but no decision as of now has been taken by the respondents on the same.

(D) In Writ Petition No.644 of 2021, "Naresh Kumar Vs. State of Uttarakhand & others", the

factual backdrop is that the late father of the petitioner who was working with the PWD, Dugadda, Pauri Garhwal, and he was placed later on in a work charge establishment on 26.11.1988, and after rendering of about 22 years, of continuous satisfactory service on the post of "Beldar", in a work charge establishment, the father of the petitioner met with the sad demise on 03.11.2010. The petitioner's contention is that he had applied for the grant of compassionate appointment, under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, and ultimately his claim was considered and was granted an appointment as a "Work Agent" with effect from 02.04.2021, but on a daily wages. His grievances is that he submitted his representation on 21.01.2021, for regularization of his services and for the grant of regular benefits as it had been paid to the regular employee working on the said post, but the same has not yet been considered by the respondents.

3. Hence the present writ petitions have been filed by the petitioners seeking a direction/order by way of a writ of mandamus commanding the respondents to consider the claim of the petitioners for regularization.

4. It is a settled law, that as far as the law of compassionate appointment, which emanates from the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, is concerned, it is a welfare Legislation, which was legislated under Article 309 of the Constitution of India, for the purposes to meet out an emergent contingency, which has befallen upon

the family, on account of the sad demise of the sole breadwinner of the family though grant of appointment is based on the satisfaction of some preconditions. Hence, the Rules contemplated for providing an immediate benefit to sustain the family, which has been brought to a sudden crisis on account of the death of sole breadwinner. However, these aspects pertaining to the impact of the welfare legislation, may not be a question for consideration in these writ petitions, for the reason being that the petitioners admittedly had already been granted appointment, as against the respective date of appointment, on compassionate ground, but on a daily wages, on which undisputedly they are presently working.

5. The contention of the petitioners in the writ petitions, are that under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, an appointment contemplated under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974, has had to be compulsorily on the regular basis and it could not be the daily wage appointed, under the compassionate Rules of 1974, they cannot be appointed on a daily wages basis and this is a ratio, which has been propounded by the judgment reported in 2000 (1) UPLBEC, 719, "Ajay Kumar Sharma Vs. State Government of U.P. and others". The relevant paragraph where this principle has been governed is extracted hereunder:-

"5. Needless to mention that appointment in Dying in Harness Rules cannot and should not be temporary or ad hoc as it will frustrate the very purpose of the rules, namely to save the family from distress."

6. An identical issue came up for consideration before the Coordinate Bench of this High Court, as reported in 2005 (1) UD, page 379, "Bhaguli Devi Vs. State of Uttaranchal & others", and the Coordinate Bench while considering the implications of grant of compassionate appointment under the Dying in Harness Rules, has recorded its finding in paragraph Nos.2, 10 and 11, which is extracted hereunder:-

"2. By means of this writ petition, the petitioner has prayed to issue a writ in the nature of Mandamus directing the respondents to provide her appointment in the Forest Department under Dying in Harness Rules. The petitioner, who is widow of deceased, contended that her husband was working in the Forest Department on daily wage basis since 1984 and has worked with the Department for about 16 years. The husband of the petitioner died on 29.11.2000 leaving behind the petitioner and six minor children. She belongs to backward class and has no meaning of livelihood. Petitioner made several representations to the respondents for providing her appointment in the Forest Department under Dying in Harness Rules. The first representation was made on 25.7.2002. Despite the fact that, the petitioner is only adult member in the family and there is no other person except her, to look after six minor children, respondents Authorities have not taken any action on the representation made by the petitioner.

10. Firstly, there is no mention in the counter affidavit that the petitioner's husband was not appointed against substantive vacancy. Secondly, petitioner's husband has worked on daily wage basis against a particular duty of post for a period of about 16 years and that work is perennial in nature. The presumption would be that such an employee would be entitled for being treated to have been continuing against regular vacancy.

11. For the reasons recorded above, since the petitioner's husband was continuing in employment for more than 16 years, petitioner is entitled to get benefit of the Uttar Pradesh Recruitment of Dependants of Government Servants Rules 1974, which has been adopted by the state of Uttaranchal."

7. The aforesaid judgment is to the effect that the appointments which are made on compassionate ground, is a substantive appointment, and it would be presumed that such an appointment granted under the Rules of 1974, would be treated to be as against a regular vacancy.

8. Once again this issue was dealt by yet another Coordinate Bench of this Court in a judgment rendered on 21.12.2005, in a writ petition being WPSS No.1620 of 2005, "Balam Singh Vs. Chief Engineer, Kumaun Division and others", wherein, the Coordinate Bench while referring to a judgment of "Bhaguli Devi Vs. State of Uttaranchal & others" (Supra) as referred above reported in 2005 (1) U.D., 379, as well as considering the judgment reported in 1999 (3) UPLBEC, page 2263, "Ravi Karan Singh Vs. State of Uttar Pradesh and others", has observed that the appointments under the compassionate ground are on a regular basis, and the relevant finding is extracted hereunder:-

"It is not disputed that the petitioner's father was working with the respondents on monthly salary basis from the date of his appointment till his death i.e. till 25.06.2001. It is also not disputed that the petitioner was given appointment under Dying- in-Harness Rules on the post of Mate on temporary basis. This fact is also apparent from the appointment letter, which is annexed along with the writ petition. Contention of the petitioner is that since the petitioner was provided appointment under Dying-in-Harness Rules, his appointment cannot be treated similar to those appointed as Daily Wage basis. The petitioner has placed reliance on the judgment of this Court in Writ Petition no. 91(s/s)2003 reported in 2005(1) Uttaranchal Decisions, page 379 Bhaguli Devi vs. State of Uttaranchal and others. She has further placed reliance on the judgment of Allahabad High Court in Civil Misc. Writ Petition no. 39127 of 1994 Ravi Karan Singh vs. State of U.P. and others reported in 1999(3) UPLBEC, page 2263 wherein the Division Bench has held that the appointment provided under Dying-in-Harness Rules shall be treated as

permanent appointment and not a temporary appointment."

9. Even, I had an occasion to deal with an identical issue in a writ petition being WPSS No.675 of 2020, "Chandra Bhatt Vs. State of Uttarakhand", wherein, I have also accepted the preposition, which was laid down in the matters of Balam Singh (Supra), as well as that of Bhaguli Devi (Supra), and had decided the aforesaid writ petition on 13.07.2020, holding thereof, that the appointments made on compassionate ground would always considered to be a regular appointment. Since there had been the consistent precedents of the Courts with regards to the nature of an appointment under the compassionate grounds, to be of a regular in nature, thus aforesaid principles as referred above from the judgments, which have been extracted above, would be taken into consideration by the respondents, while considering the case of the petitioner.

10. Based on the aforesaid principle, since the petitioners appointment right from the date of their initial appointment ought to have been made on a regular basis on compassionate grounds and not on the daily basis, hence at this stage, this Court is of the view that since the petitioners had sought a writ of mandamus, for which they have already represented their respective claims, before the respondents by way of filing a representation respectively, the respondent no.5, is directed to take a decision on the representations of the petitioners for regularizing their services and also for the grant of service benefits admissible to a regularly appointed employee, consequent thereto, but preferably within a period of two months from the date of production of a certified copy of this judgment.

11. However, it is made clear that while taking a decision on the representations of the petitioners, the respondent no.5, would also take into consideration, the principles of the ratio laid down in the aforesaid judgments, as referred above.

12. Subject to the above observations, the writ petition stand disposed of accordingly.

(Sharad Kumar Sharma, J.) 11.06.2021 NR/