Uttarakhand High Court
WPSS/632/2022 on 13 April, 2022
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
WPSS No. 632 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Mr. Harendra Belwal, learned counsel for the
petitioner.
Mr. S.M.S. Mehta, learned Brief Holder for the
State of Uttarakhand.
According to petitioner, his father was engaged in
the work charged establishment of Public Works
Department w.e.f. 01.11.1992, who died while serving
as Beldar, on 13.12.2008. On sympathetic ground,
petitioner was offered appointment as Work Agent on
daily wages w.e.f. 03.02.2009 and he is serving as Work
Agent, since 2009. The reliefs sought in the writ petition
are as follows:-
(i) Issue a writ, order or direction in the nature of certiorari
quashing the letter no. 189/2dk0iz0d0-06/2022 dated 01.02.2022,
issued by respondent no. 4 (Annexure No. 10 to the writ petition)
(ii) Issue a writ order or direction in the nature of mandamus
commanding the respondents to regularize the service of the
petitioner, treating him as permanent employee appointed under the
dying in harness rules w.e.f. 03.02.2009 and to pay him all
consequential benefits forthwith as and from when it became due.
(iii) Issue a writ order or direction in the nature of
mandamus commanding the respondents to give him admissible
Pay Scale to the petitioner as is being drawn by his other
counterpart in the department.
Petitioner contends that since he has been engaged
on compassionate grounds, therefore, his engagement
should be treated as permanent and he be declared as a
regular employee.
Petitioner made a representation to the Competent
Authority, claiming regular status on the post of Work
Agent. His representation was rejected by
Superintending Engineer, 6th Circle, P.W.D., Uttarkashi
vide order dated 01.02.2022.
It is not in dispute that petitioner's father was
serving in Work Charged establishment of Public Works
Department and his services were never regularised.
Impugned order reveals that petitioner, though initially
engaged as daily wager, has been given the status of
Work Charged Employee w.e.f. 03.11.2011. However,
his claim for regular status, merely because he was
appointed on compassionate ground after his father's
death, is not tenable in the eyes of law.
Admittedly, petitioner accepted engagement
offered to him as a daily wager in the year 2009 without
any demur and he did not claim regular appointment at
that time. After rendering more than 12 years of
services as a casual employee, it is now not open to
petitioner to claim regular status merely because he was
offered appointment on compassionate ground. It is not
the case of the petitioner that engagement offered to him
in the year 2008 was under Dying in Harness Rules,
1974.
Learned counsel for the petitioner has referred to a
judgment rendered by Hon'ble Allahabad High Court in
the case of Ravi Karan Singh v. State of U.P. and others,
reported in 1999 (2) AWC 976. In that case, Division
Bench of Hon'ble Allahabad High Court while
answering a reference held that appointment under
Dying in Harness Rules has to be treated as a permanent
appointment, therefore, provisions of U.P. Temporary
Government Servants (Termination of Service) Rules,
1975 will not apply to such appointments. Similar view
was also taken by Single Judge of Hon'ble Allahabad
High Court in the case of Ajay Kumar Sharma v. State
Government of U.P. and others, reported in 2000 (2)
AWC 1020. In that case, petitioner was given regular
appointment on compassionate grounds under Dying in
Harness Rules, 1974, but, subsequently, his services
were terminated by invoking provision of U.P.
Temporary Government Servants (Termination of
Service) Rules, 1975. In that backdrop, it was held that
compassionate appointment given under Dying in
Harness Rules, 1974 cannot be treated as temporary, or
else it will frustrate the very purpose of giving
compassionate appointment under Dying in Harness
Rules, which aims at saving family of a deceased
employee from distress. Thus the legal position that
emerges is that services of a person who has been given
regular appointment on compassionate ground under
Statutory Rules, cannot be summarily terminated by
invoking provision of U.P. Temporary Government
Servants (Termination of Service) Rules, 1975, by
treating him to be temporary/probationer.
Even otherwise also, petitioner's father was also a
casual employee, therefore, he cannot claim a status
better than that of his father.
Learned State Counsel has placed reliance upon a
judgment rendered by Full Bench of this Court in the
case of Uttarakhand Van Vikash Nigam and another vs.
Suresh Chandra Auli reported in 2012 (1) U.D. 6. Para
26 & 27 of the said judgment are reproduced below:-
"26. Undoubtedly, "Compassionate appointments" as the very
name suggests are appointments based on "sympathy". All the
same, it would mean sympathy in a given contingency. While
making such appointments on sympathetic grounds, the Courts
cannot loose sight of the facts that where there is one person
before the Court who may need a sympathetic view of the Court,
yet there are many others who though are not before the Court yet
are waiting in the long queue, seeking public employment and an
unjust appointment to one would mean violating the rights of
hundreds of others, who may have a greater hardship than the
petitioner. This is precisely what has been observed by the
Hon'ble Apex Court in Ramakrishna Kamat and others v. State of
Karnataka (2003) 3 SCC 374. The Hon'ble Apex Court has stated:
"7....While being sympathetic to the persons who come
before the court the courts cannot at the same time be
unsympathetic to the large number of eligible persons
waiting for a long time in a long queue seeking employment."
27. This Court therefore holds that the dependants of a daily wage
employee are not covered under the definition of a "Government
Servant" as defined under Section 2 (a)(iii) of the Dying in
Harness Rules. Hence, they are not liable to be given employment
on compassionate ground under the Rules, irrespective of the
numbers of the years such an employee had put in service, prior to
his death."
For the aforesaid reasons, no direction can be
issued to confer status of a permanent employee upon
the petitioner.
Since petitioner has served for more than a decade
in the department, therefore, his claim for regularization
can be considered as per the applicable rules, as and
when the process for regularization of casual employees
is initiated. Thus, the relief as claimed in the writ
petition cannot be granted.
Accordingly, writ petition fails and is dismissed.
(Manoj Kumar Tiwari, J.)
13.04.2022
Aswal
