996 And vs (A) All Appointments Shall Be Made ...
2022 Latest Caselaw 1904 UK

 IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
            ON THE 30TH DAY OF JUNE, 2022
                              BEFORE:
      HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


           Writ Petition (S/S) No. 382 of 2021

BETWEEN:
Shailendra Yadav.                                  ......Petitioner
      (By Mr. Yogesh Pacholia, Advocate)


AND:
Establishment Officer, Govind Ballabh
Pant University of Agriculture
and Technology Pantnagar & others.                 ...Respondents
      (By Dr. Kartikey Hari Gupta, Advocate)


                           JUDGMENT

Heard learned counsel for the parties.

2. Petitioner's father, late Arvind Kumar Yadav, was appointed on daily wages in Govind Ballabh Pant University of Agriculture and Technology, Pant Nagar (hereinafter referred to as "the University") w.e.f. 01.01.1996 and, after completing more than 18 years of service as daily wager, he was regularized on the post of Junior Assistant w.e.f. 18.12.2014. Petitioner's father unfortunately died in a road accident on 18.12.2016 while serving as Junior Assistant in the University. In view of loss of the sole bread earner in the family, request for appointing petitioner on compassionate ground was made to the University. Dean of the University recommended petitioner's case for compassionate appointment to the Establishment Officer. Petitioner's request was turned down by the Establishment Officer vide order dated 28.03.2019 on

the ground that petitioner's father had not completed three years' service after his regularization. Thus, feeling aggrieved by rejection of his claim for compassionate appointment, petitioner has filed this writ petition seeking the following reliefs:

"i. Issue a writ, order or direction in the nature of certiorari to quash the order dated 28.03.2019 passed by respondent university.

ii. Issue a writ, order or direction in the nature of certiorari to quash the Chapter XIII Appointment of the Staff Section 6 (8) (13) d (i).

iii. Issue a writ, order or direction in the nature of mandamus to provide the compassionate appointment to the petitioner as per his qualification under the Dying in Harness Rules."

3. A counter affidavit has been filed by the respondents. Paragraph no. 3 of the counter affidavit is extracted below:

"3) That the contents of Para No. 2 are denied. It is humbly submitted that as per Chapter-XIII, Section 6 (8) (13) (d) of Act and Statutes of the University and Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, the petitioner is not entitled for compassionate appointment because his father had not completed 03 years of regular service in the University. As far as the judgment passed by the Hon'ble Apex court in "Prem Singh Vs. State of Uttar Pradesh is concerned, the Hon'ble Court held that services in the work charged establishment shall be treated as qualifying service and computed for grant of pension only. Therefore, the claim for appointment on compassionate grounds of the petitioner does not cover under these ruling of the Hon'ble Apex Court."

4. The University has been established under Govind Ballabh Pant Krishi Evam Prodyogik Vishwavidaylaya Adhiniyam, 1958. Chapter XIII of the Statute of the University deals with appointment of staff. Clause 1(d) of Chapter XIII of the Statute, which has been relied in the counter affidavit, is reproduced below:-

"Chapter XIII Appointment of Staff

1.(a) All appointments shall be made strictly on the basis of merit.

.....

(d) A dependent (wife or husband, son, unmarried daughter and widowed daughter) of an employee of the University who meets with untimely death or gets permanent disability during the service period may be appointed on any non-teaching post for which he/she is suitable and fulfils the minimum qualifications, without selection procedure.

WITH THE PROVISO THAT:

(i) The above facility will be given to only the dependents of employees who have put in at least 3 years continuous service in the University and only if there is no other earning member in the family of the deceased."

5. Perusal of clause 1(d) of Chapter XIII of the Statute reveals that upon death of an employee of the University, his dependant may be appointed on a non- teaching post, without requiring him to face selection. It further reveals that appointment on compassionate ground can be given even when an employee of the University suffers from permanent disability during service period. First proviso to clause 1 (d), however, puts a condition that benefit of compassionate appointment will be given only to dependants of such employees, who have put in minimum three years continuous service and further that there is no earning member in the family.

6. Petitioner's claim for compassionate appointment is not rejected on the ground that there is an earning member in his family and the sole ground taken for rejecting his claim is that his father had not completed three years' service after his regularization.

7. Learned counsel for the petitioner submits that on the date when petitioner's father was regularized, he had completed 18 years, 1 month and

16 days of continuous service, though as daily wager, and post regularization, he had served for another 2 years 10 months and 20 days till his death. Thus, he submits that service rendered by petitioner's father before his regularization i.e. 18.02.2014 cannot be ignored while considering petitioner's claim for compassionate appointment.

8. In paragraph no. 6 of the writ petition, details of service rendered by petitioner's father before and after regularization have been given, which is admitted in paragraph no. 6 of the counter affidavit.

9. This Court finds substance in the submission made by learned counsel for the petitioner. In view of the plain language of first proviso of clause 1 (d) of Chapter XIII of the Statute, the service rendered by petitioner's father before his regularization, cannot be ignored. The expression used in first proviso is 'continuous service', which has been read as 'regular service' by the University for rejecting petitioner's claim. It is not in dispute that petitioner's father became regular employee on 18.02.2014, however, he was serving continuously since 1996 as daily wager. Although, the length of service of petitioner's father post regularization falls short of three years, however, that cannot be a ground for rejecting petitioner's claim in view of previous service rendered by petitioner's father as daily wager.

10. In service jurisprudence, the expression 'continuous service' and 'regular service' have different connotations. The expression 'continuous service' means service rendered in an organization, which is

without any break or interruption; while, the expression 'regular service' means service rendered after regular appointment/regularization as per Rules.

11. Appointment/engagement of petitioner's father before 18.02.2014 may not be regular, however, it cannot be said that services rendered by him upto 18.02.2014 are not continuous. It is not the case of the University that there was any break in his service.

12. Even otherwise also, a beneficial legislation should receive a liberal construction so as to promote its objects, as held by Hon'ble Supreme Court in the case of Brahampal @ Sammy and another Vs. National Insurance Company Ltd, reported in (2021) 6 SCC 512. Paragraph nos. 6 & 7 of the said judgment are reproduced below:

"6. At the outset, we must note that Chapter XII of the Act is a beneficial legislation intended at protecting the rights of victims affected in road accidents. Moreover, the Act is a self-contained code in itself which provides procedures for filing claims, for passing of award and for preferring an appeal. Even the limitations for preferring the remedies are contained in the code itself.

7. The interpretation of a beneficial legislation must be remedial and must be in furtherance with the purpose which the statute seeks to serve. The aforesaid view has been reiterated by this Court on multiple occasions wherein this Court has highlighted the importance acknowledging legislative intention while interpreting the provisions of the statute. This Court in Bombay Anand Bhavan Restaurant v. ESI Corpn. [Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61 : (2009) 2 SCC (L&S) 573] while interpreting the provisions of the Employees' State Insurance Act held that it being a beneficial legislation should receive a liberal construction so as to promote its objectives. This Court held therein: (SCC p. 66, para 20) "20. The Employees' State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The

Employees' State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects."

(emphasis supplied)

13. It cannot be disputed that the provision for compassionate appointment contained in the Statute of the University is in the nature of beneficial legislation, therefore, the interpretation of expression 'continuous service' as given by the University, cannot be countenanced in the eyes of law. Even going by golden rule or literal interpretation, the reason assigned for rejecting petitioner's claim, is unsustainable.

14. Learned counsel appearing for University has placed reliance upon definition of expression 'employee', as given in Rule 2(iv) of the Subordinate Staff Service Rules of the University, which reads as under:-

"2(iv). 'Employee' means any employee of the University (whether in regular service on contract, deputation or otherwise), but does not include the labor force, work charge, contingent staff and staff working on daily wages."

15. Since it is not in dispute that petitioner's father became regular employee on 18.02.2014, therefore, reliance by the University upon aforesaid definition of 'employee', is misplaced. Petitioner's claim is not rejected because his father was not a regular employee, but it was rejected on the ground that his father had not completed three years' of regular service. Since in the relevant provision of the

Statute what is required is 'continuous service' and not 'regular service', therefore, aforesaid Rules do not support the case of the respondents.

16. Hon'ble Supreme Court in the case of Prem Singh v. State of U.P. and others, reported in (2019) 10 SCC 516, held that once regularization is made on vacant post, then there is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularization and accordingly directed for counting service rendered by work-charged employees before regularization, towards qualifying service for pension. Paragraph no. 33 of the said judgment is extracted below:-

"33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in- between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification."

17. For the aforesaid reasons, this Court is of the considered opinion that the impugned rejection order dated 20.03.2019 deserves to be quashed, and is hereby quashed.

18. Accordingly, the writ petition is allowed. The Competent Authority in the University is directed to re- consider petitioner's claim for compassionate appointment, as per law, within a period of six weeks' from the date of production of certified copy of this order.

(MANOJ KUMAR TIWARI, J.) Navin