1. In Pawan Kumar Yadav v. State of U.P. and Ors. the Court noticed judgements of this Court taking divergent views in the matter of recruitment of dependants of government servants, dying in harness, where the deceased employees were either daily wagers or workcharge employees, who were not regularly appointed, and referred the following questions for decision of larger bench:
1. Whether a daily wager and work charge employee, employed in connection with the affairs of Uttar Pradesh, who is not holding any post whether substantive or temporary is a ''Government Servant'' within the meaning of Rule 2(a) of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974?
2. Whether the Judgment in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and Ors. 1991 (18) ALR 591; Smt. Maya Devi v. State of U.P. Writ Petition No. 24231 of 1998 decided on 2.3.1998; State of U.P. v. Maya Devi Special Appeal No. 409 of 1998; Santosh Kumar Misra v. State of U.P. and Ors. 2001 (4) ESC 1615 ; and
2. The questions were referred by Hon''ble Mr. Justice A.N. Ray, the then Chief Justice on 13.5.2005 to a Bench of three judges. A large number of writ petitions and special appeals filed subsequently, on the same questions were connected, with the reference.
3. The petitioners are represented by Shri S.P. Shukla, Shri S.K. Misra, Shri L.C. Srivastava, Shri Ashok Tripathi, Shri Bikash Kumar Mishra, Shri Ashok Tripathi, Shri Sunil Kumar Srivastava, Shri Shashi Kant Shukla, Dr. Dharmesh Chaturvedi, Shri Bhoopendra Nath Singh, Shri Rakesh Kumar Singh, Shri K.M. Misra and Shri N.K. Mishra. No other counsel has appeared in the listed matters. Shri M.C. Chaturvedi, Chief Standing Counsel assisted by Dr. Y.K. Srivastava, Standing Counsel appeared for various departments of the State and for State of U.P. in the special appeals.
4. Prior to 7.10.1974, recruitment of dependants of government servant dying in harness was regulated by several Government Orders and departmental instructions. The Government of U.P. Notified the U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 (In short the Rules of 1974) under the proviso to Article 309 of the Constitution of India on 7th October, 1974. The framing of these statutory Rules of 1974, had the effect of the Rules prevailing over all the Government Orders/Circulars/Letters, which have after the framing of Rules, no force of law.
5. Rule 2 provides definition of ''Government Servant'', which has been defined in Clause (a) thereof to mean:
(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, has 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 ;
Rule 3 provides, that the Rules would be applied to recruitment of dependents of the deceased government servants to public services and posts in connection with the affairs of State of Uttar Pradesh. Rule 4 provides for a non-obstante clause stating that the same shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement thereof.
Rule 5 provides for recruitment to a member of the family of the deceased as under:
5. Recruitment of a member of the family of the deceased.-
(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person-
(i) fulfils the educational qualifications prescribed for the post,
(ii) is otherwise qualified for Government service, and
(iii) makes the application for employment within five years from the date of the death of the Government servant:
Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.
6. The object of appointment on compassionate ground to the dependent of the deceased government servant dying in harness has been subject matter of consideration by the Supreme Court in various cases.
(a) In
The compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the Rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. (Para 6)
(b) In the case of
The very object of appointment of a dependent of the deceased employees who die-in-harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. (Para 3)
(c) In
As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment, and that mere death of an employee does not entitle his family to compassionate appointment. (Para 4)
(d) In the case of
The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. (Para 4)
(e) This Court has observed in
The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana this Court has taken note of the object underlying the Rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. (Para 8)
(f) In the case of
This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood. (Para 3)
(g) In the case of
It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis." (Para 4)
(h) In the case of
The purpose of providing employment to a dependant of a Government servant dying-in-harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased Government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case. (Para 5)
(i) In the case of
It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises. (Para 5)
(j) In the case of
Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution. (Para 11)
7. The recruitment under the Rules of 1974 to the dependants of an employee dying in harness is confined to the dependants of the deceased ''Government servant''. A Government servant defined under Rule 2(a) means a Government servant employed in connection with the affairs of Uttar Pradesh. The nature of employment is clarified under the Rules (i) either permanent; (ii) though temporary, had been regularly appointed in such employment or; (iii) though not regularly appointed, has put in 3 years continuous service in regular vacancy in such employment. The explanation appended to Clause (a) explains that the words ''regularly appointed'' means, appointed in accordance with the procedure laid down for recruitment to the post or service as the case may be. There is no difficulty in ascertaining the nature of employment for which the Rules are applicable, if the Government servant was permanent. The difficulty also does not arise, where the nature of employment is temporary and the person has been regularly appointed in such employment. The words ''regularly appointed'' have been explained to mean the appointment in accordance with the procedure of recruitment for the post or service. The difficulty arises, where a person has not been regularly appointed, but has put in 3 years'' continuous service in regular vacancy. The word ''regular vacancy'' in such employment is not defined under the Rules.
8. In order to find out the nature of employment of the persons through whom the petitioners are claiming compassionate appointment, it is necessary to set out the facts in respect of cases in which the counsels appeared and pressed their claims.
9(a). In Pawan Kumar Yadav v. State of U.P. Writ Petition No. 15505 of 2005, Shri Raja Ram Yadav was appointed as daily waged Class-IV employee in the Forest Department at Mirzapur in the year 1983. He died on 31.10.1997, after serving for 14 years as daily waged employee leaving behind his widow and four sons including Pawan Kumar Yadav (the petitioner) and one daughter. They were alleged to be solely dependent upon him. The petitioner applied for compassionate appointment under the Rules of 1974 on 14.6.1998. In the counter affidavit of Shri R.K. Tripathi, Forest Ranger, Forest Division it is stated that the petitioner''s father late Shri Raja Ram Yadav was working as daily wager on the post of Gateman. He was not permanent employee and that since the petitioner''s father did not come within the definition of government servant under the Rules of 1974, he was not entitled to appointment. In para 16 it is denied that the petitioner''s father had continuously worked from 1983 upto 1997.
(b) In Writ Petition No. 59778 of 2006 Surendra Singh v. State of U.P. and Ors., the petitioner''s father Satya Narain Singh was initially appointed on the post of Part Time Tube Well Operator in the Irrigation Department in the year 1990 till 18.5.1999. He was getting the same pay scale and other emoluments as of regular Tube Well Operators with deductions of general provident fund. He was liable to be regularised but unfortunately the order of regularisation was not made. With the 73rd Amendment to the Constitution of India all Tube Well Operators under the Government Order dated 1.7.1999 working in the eight Department of the Government including regular or part time Tube Well Operators were designated as Multi Purpose Panchayat Workers. The petitioner''s father was issued letter on 18.5.1999 relieving him from the duties of Tube Well Operator and was placed under the Gram Panchayat. He was working as Gram Panchayat Vikas Adhikari and Secretary of Various Village Panchayats in District Deoria till he died in harness on 21.6.2006. The petitioner''s mother made an application for appointment on compassionate grounds on 24.7.2006, which was rejected on 29.7.2006 on the ground that the petitioner''s father was serving as Part Time Tube Well Operator and was not a government servant as defined for claiming appointment on compassionate grounds under the Rules of 1974.
(c) In Smt. Chanda Devi v. State of U.P. and Ors. Writ Petition No. 9500 of 2006, late Shri Tej Bahadur Singh was appointed as Meth on permanent muster roll in Public Works Department under the Executive Engineer, PWD, Allahabad on 28.5.1990. He died in harness after completing 9 years and 9 months of service on 1.3.2000. The petitioner applied for compassionate appointment on 8.5.2000, as his widow. The Writ Petition No. 2743 of 2004 was finally disposed of on 22.2.2005 to consider the representation within one month. The representation was decided on 21.4.2005 stating that total length of service of Shri Tej Bahadur Singh was 9 years and 9 months, and hence she could not be appointed. The petitioner filed second Writ Petition No. 50984 of 2005, which was allowed by this Court in the same terms as in the case of Km. Suman Kumari (Writ Petition No. 21622 of 2004). In Suman Kumari, the petitioner was claiming compassionate appointment on the death of her mother Smt. Kewal, who was also given compassionate appointment on the death of her husband. The facts of the case of Km. Suman Kumari were entirely different than the case of Smt. Chanda Devi. The Superintending Engineer, Allahabad Circle, PWD, Allahabad again rejected the application of Chanda Devi on 19.1.2006 on the ground that her husband was working on permanent muster roll with only 9 years and 9 months service to his credit and thus she was not entitled to compassionate appointment.
(d) In Smt. Manvasi Devi @ Shanti Devi v. State of U.P. and Ors. Writ Petition No. 44470 of 2006 Shri Raj Jeet Yadav was engaged as daily waged Beldar (Cook) in the Irrigation Department on 1.8.1983. His name was included at Sl. No. 24 in the seniority list issued in the year 1998. He was given work charge employment in the office of Executive Engineer, Sharda Sahayak Khand-39, Irrigation Department, Allahabad on 19.6.1998. A Writ Petition No. 13746 of 2001 was filed by him to regularise his services and was disposed of to consider his representation. His claim was rejected on 21.6.2002 on the ground that he was working as work charge employee since 19.6.1998. He died on 12.12.2005. The representation made by the petitioner on 2.12.2005 was not considered on 21.6.2002 on the ground that the deceased was daily wager in work charge establishment.
(e) In Ravi Srivastava v. State of U.P. and Ors. Writ Petition No. 68880 of 2006, the petitioner''s father Shri Sudhir Kumar Srivastava was appointed as Chowkidar on daily wages on 25.3.1985 in the office of Executive Engineer, Construction Division-II, PWD, Kanpur Nagar and continued to work in the same capacity upto 25.3.1987. Thereafter he worked from 26.9.1987 to 25.9.1988 as Meth at Police Station Gajner. His father, thereafter, worked as Meth at Primary Health Centre, Makrandpur, Kanpur Nagar as muster roll daily waged employee w.e.f. 26.9.1988. He became permanent muster roll employee at Sl. No. 9 w.e.f. 1.6.1989 upto his death on 15.10.2006. The petitioner Shri Ravi Srivastava applied for compassionate appointment on 1.11.2006, which was rejected on 14.11.2006 on the ground that by Government Order dated 29.1.2003 the provisions for compassionate appointment of the dependants of daily wagers/workcharge establishment employees has been stopped.
(f) In Guddu Musleem v. State of U.P. and Ors. Writ Petition No. 28559 of 2006, the petitioner''s father was working as work charge employee ''Beldar'' in the office of Nirman Khand-1, Public Works Department since 26.3.1987. He was not regularised upto his death on 8.6.2003 leaving behind four members in the family. The petitioner applied for compassionate appointment dated 12.9.2003 was not considered on the ground of letter of Government of Uttar Pradesh dated 29.1.2003 by which the compassionate appointment of daily wager/work charge employee was stopped. The Executive Engineer, Nirman Khand-1, PWD, Varanasi by letter dated 13.3.2006 rejected the application in pursuance to the directions of this Court dated 25.2.2006 in Writ Petition No. 7308 of 2006 on the ground that by Government Order dated 29.1.2003 the compassionate appointment was not to be considered for the dependants of daily wagers/workcharge employee.
(g) In Rama Shanker Singh v. State of U.P. and Ors. Writ Petition No. 57072 of 2006 the petitioner''s father died in harness working as Seasonal Collection Peon. He was employed on seasonal basis from February 1976 to 29.8.2005. It is stated that since 7.2.1981 upto the date of his death on 29.8.2005 he was working without any break. The petitioner''s application dated 15.9.2005 and 12.12.2005 for compassionate appointment was rejected on 11.3.1997 in pursuance to the order of this Court dated 19.5.2006 in Writ Petition NO. 27893 of 2006 on the ground that his father was appointed on seasonal basis. He was not working on any regular post on temporary basis and thus his continuance if for more than 3 years did not entitle the petitioner''s appointment on compassionate grounds.
(h) In Smt. Kusama Devi v. State of U.P. and Ors. Writ Petition No. 45697 of 2006, the petitioner''s husband was engaged as Meth on daily wage in Public Works Department on 26.5.1985. He was appointed on the same post in work charge on 1.7.1999 and died on 3.5.2006. Her application for compassionate appointment was rejected on 26.5.2006 on the ground that in temporary work charge establishment there is no provision for appointment of the dependants of the employees dying in harness on compassionate grounds.
(i) In Smt. Shyama Devi v. State of U.P. and Ors. Writ Petition No. 7687 of 2010, the petitioner''s husband Shri Har Dayal was employed as muster roll employee as Peon in the office of the Executive Engineer, Awas Vikas Parishad, Bareilly on 16.3.1985. He died while serving as muster roll employee on 1.7.2007.
(j) In Smt. Sunita Devi v. State of U.P. Writ Petition No. 2789 of 2010, the petitioner''s husband Shri Shyama Charan was employed as part time Tube Well Operator on 9.4.1991. He was posted at Village Musapur, Distt. Bareilly. The Government proposed to regularise the services of all Part Time Tube Well Operators appointed prior to 30.6.1998 under the Part Time Tube Well Operators Regularisation (First Amendment) Rules, 2008. The petitioner''s husband was entitled to regularisation. He, however, died on 20.12.2007 in a road accident leaving behind the petitioner and two daughters. Her application for compassionate appointment was considered in pursuance to the direction issued by this Court dated 27.7.2009 in Writ Petition No. 37012 of 2009 on the ground that her husband was not government servant within the meaning of Rules of 1974. The deceased Government Servant was appointed as Part Time Tube Well Operator on 9.8.1991 on honorarium of Rs. 299/- for 3 years for working on 2? hours. He was not holding any post nor were regularly appointed in any vacancy to be considered as government servant.
It is relevant to state here that in pursuance to the Judgment of this Court in Suresh Chandra Tiwari and Ors. v. State of U.P. and Ors. Writ Petition No. 3558 (SS) of 1992 dated 16.8.1994 followed in Uma Shankar Yadav v. State of U.P. Writ Petition No. 30228 of 1993, decided on 26.9.1995 and against which SLP filed by the State of U.P. in State of U.P. v. Mangra Prasad Verma was dismissed on 22.3.1995 and the review petition was also dismissed on 19.10.1995, the State Government framed Rules under the Proviso to Article 309 of the Constitution of India: U.P. Regulation of Part Time Tube Well Operators Rules, 1996. The Rules were amended by First Amendment in 2008 on 5.5.2008 providing that persons working on 30th June, 1998 or prior to that date on part time Tube Well Operator and were serving regularly on the enforcement of the First Amendment Rules will be considered for regularisation, if he is eligible after considering his suitability in accordance with his service record. It is alleged in the writ petition that the petitioner had a right to be considered for regularisation under the Rules in accordance with the service book. He, however, died before the enforcement of the Rules on 5th May, 2008 on 30.12.2007.
(k) In Smt. Om Kanti v. State of U.P. and Ors. Writ Petition No. 71855 of 2009, the petitioner''s husband was working as Part Time Tube Well Operator on 26.5.1987 and was working as such, when he died in harness on 29.6.2000 in a road accident. Her applications dated 22.9.2000 and 7.2.2001 were considered in pursuance to the directions issued by this Court. Her Writ Petition No. 31703 of 2001 was dismissed on 30.4.2004. In special appeal an order was passed on 10.7.2009 to decide his representation, which was rejected on 5.11.2009 on the ground that he was not covered by Regularisation Rules of 1996 as he was appointed on 26.5.1987, whereas the Rules of 1996 provided for cut off date as 1.10.1986.
(l) In Chandan Kumar Dubey v. State of U.P. Writ Petition No. 5764 of 2010, the petitioner''s father was appointed as Part Time Tube Well Operator on 21.2.1987 and died in harness on 16.3.2001. His mother made an application for compassionate appointment on 23.6.2004 and after attaining the majority the petitioner filed an application for compassionate appointment. He has prayed for direction to decide his representation.
(m) In Subhash Chandra v. State of U.P. Writ Petition No. 12099 of 2010, the petitioner''s father late Shri Mehi Lal was appointed as Beldar in Class-IV category on daily wage basis in the Irrigation Department. On 1.4.1975 he was absorbed in permanent work charge establishment on 1.10.1990 and died in harness on 7.11.2006. The petitioner applied for compassionate appointment on 4.12.2006. He got information under the Right to Information Act that his father was working in regular work charge establishment. In Writ Petition NO. 20891 of 2008, his representation was directed to be decided by order dated 29.4.2008.
(n) In Mahipal v. State of U.P. and Ors. Writ Petition No. 7750 of 2010, the petitioner''s father was employed as Meth on daily wage in Public Works Department on 25.2.1986. He was shifted in the workcharge establishment on 18.12.1999 in the office of National Highway Branch. He died on 15.10.2009. It is stated that juniors to the petitioner were regularised on 7.1.2010. The petitioner''s application for compassionate appointment filed on 23.11.2009 and reminder on 2.12.2009 were considered and rejected on 20.12.2009 on the ground that his father was working in the workcharge establishment since 18.12.1999. There is no Government Order giving the compassionate appointment to the irregular workcharge employee.
(o) In State of U.P. and Ors. v. Zaved Akhtar Special Appeal No. (1170) of 2007, the delay has been condoned on 9.1.2008. The special appeal has to be given regular number. In this appeal the State of U.P. is aggrieved by the Judgment of learned Single Judge dated 28.9.2007 in Writ Petition No. 43673 of 2001 directing the respondents to consider the claim of the petitioner for compassionate appointment within six weeks on the ground that the petitioner''s father was appointed for more than 3 years continuously and it was immaterial whether he was working in workcharge establishment or regular establishment. The Statutes (Rules of 1974) is beneficial in nature and has to be construed liberally. While setting aside the orders dated 28.8.2001 and 30.8.2001 by which the application for compassionate appointment was rejected as petitioner''s father was working as Pump Operator in the workcharge establishment on his death. There is stay of the Judgment by the Division Bench, connecting the matter with this reference on 9.1.2008.
(p) In State of U.P. and Ors. v. Ramadhar Vishwakarma Special Appeal No. 567 of 2008, the State of U.P. and the Irrigation Department is aggrieved against the Judgment of learned Single Judge dated 24.1.2008 in Writ Petition NO. 4325 of 2008 directing the Executive Engineer, Irrigation Division, Kushi Nagar to reconsider the compassionate appointment rejected by impugned order dated 29.10.2007 and to give appointment as petitioner''s father Shri Mansa Sharma had continuously worked for 38 years in the workcharge establishment prior to his death. The directions have been given to consider him for compassionate appointment within two months, if he is otherwise eligible and qualified for the post and shall be offered compassionate appointment under the Rules of 1974 irrespective of the fact that his father had worked as employee in the workcharge establishment.
10. In the exigencies of work, the State employs on various projects and schemes a large number of employees on daily wage basis. These employees do not work against any temporary or permanent post, or even a tenure post. They are neither permanent nor employed on temporary basis against the regular vacancy. These employees do not hold any post. The daily waged appointment is made in the exigency of service in accordance with the requirement of work. In
12. A scale of pay is attached to a definite post and in case of a daily wager, he holds no posts. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one.
11. In the
26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
31. In Ashwani Kumar and Ors. v. State of Bihar and Ors. 1996 Supp. (10) SCR 120, this Court was considering the validity of confirmation of the irregularly employed. It was stated:
So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility.
37. It is not necessary to multiply authorities on this aspect. It is only necessary to refer to one or two of the recent decisions in this context. In
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as ''litigious employment'' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
12. In
Admittedly, the employees in question in Court had not been appointed by following the regular procedure, and instead they had been appointed only due to the pressure and agitation of the union and on compassionate ground. There were not even vacancies on which they could be appointed. As held in
13. In
14. Appointment on compassionate ground would be illegal in absence of any scheme providing therefore. Such scheme must be commensurate with the constitutional scheme of equality.
16. All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder.
14. Again in
7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.
15. The judicial decisions unless otherwise specified are retrospective. They would only be prospective in nature, if it has been provided therein. Even though cause of action in any case may have arisen prior to Uma Devi, the Judgment would squarely be applicable to the facts and circumstances of the case. (Uttaranchal Jal Sansthan v. Laxmi Devi and Ors. (2009) 2 SCC 304.
16. In State of Manipur v. Thingujam Brojen Meetei AIR 1996 SC 2114 , the Supreme Court observed that dependants of confirmed workcharge employee will not be entitled to appointment on the ground of compassion as provided in the scheme. The word ''employee'' does not conceive casual or purely adhoc employee or those, who are working as apprentices.
17. It is submitted by learned Counsel appearing for the petitioners that the petitioners are dependants of the employees, who were regularly appointed in regular vacancies, and in any case most of them were entitled to be regularised after having served for more than three years in regular vacancies. It is submitted that but for their untimely death these employees were liable to be considered and regularised in the regular vacancies in the department. In respect of the employees working in the workcharge establishment, it is submitted that it was a matter of time before these employees could be posted in the permanent workcharge establishment, for claiming regular wages. They were in no manner different than in the nature of appointment of employees, who were regularly appointed in regular vacancies. The State Government has caused invidious discrimination in rejecting the applications of compassionate appointment of the petitioners on the ground that they were not Government servant, as defined in Clause (a) of Rule 2 of the Rules of 1974. The definition is inclusive in nature and will also include the employees, who were working for long periods and were entitled to be regularised.
18. Learned Counsel for the petitioners further submit that in Smt. Pushplata Dixit (Supra) this Court had considered the nature of employment of the daily wager and workcharge employees, who had served for long period, sometimes as much as 24 years and held that depriving dependants of such employees compassionate appointment on the same object and criteria on which such employment is given to permanent Government servant, temporary Government servant, regularly appointed and those, who were not regularly appointed but had put in 3 years continuous service in regular vacancy was highly discriminatory and thus violative of Article 14 and 16 of the Constitution of India. Same view was expressed in Smt. Maya Devi (Supra), Santosh Kumar Misra (Supra) and Anju Misra (Supra).
19. It is submitted that the object of compassionate appointment in respect of daily wager and workcharge employee is no less important than the object, which is to be served in giving employment to the employees of permanent and temporary employees, who were regularly appointed or had put in three years continuous service in regular vacancy. The words "though not regularly appointed had put in three years'' continuous service in regular vacancy" means that these employees were entitled to be included in the same category.
20. In respect of the employees the State Government in Irrigation Department, Public Works Department, Minor Irrigation, Rural Engineering Services, Grounds Water Department has provided for employment the regular establishment and workcharge establishment. The person appointed in regular establishment are appointed against a post, after following due procedure prescribed under the rules. In workcharge establishment the employees are not appointed by following any procedure or looking into their qualification. They do not work against any post or regular vacancy. They only get consolidated salary under the limits of sanction provided by Government Order dated 6th April, 1929. The conditions of their employment is provided in paragraphs 667, 668 and 669 of Chapter XXI under the Head of Establishment in Financial Hand Book Volume IV. Their payments are provided to be made in same Financial Hand Book Volume IV in Paragraph Nos. 458, 459, 460, 461, 462 and 463.
21. Shri M.C. Chaturvedi, learned Chief Standing Counsel submits that by Government Order dated 1.1.2000 Paragraphs 667, 668 and 669 of Financial Hand Book Volume 4 have been deleted and that thereafter the payments are not being made to them from the budget allotted from the regular establishment, and they are not entitled to any allowance or pensionary benefits. They are paid from contingencies and are required to work until the work is available. The services of workcharge employees are regularised only when regular vacancy is available. Until then they cannot be treated as government servants.
22. In Uttaranchal Jal Sansthan v. Laxmi Devi (Supra) the Supreme Court has held "it is one thing to say that by reason of such contingencies services of the workcharge employee should be directed to be regularised, but it is another thing to say that although they were not absorbed in the permanent cadre, still on their deaths their dependants would be entitled to invoke the Rules".
23. The regular need of work, of which presumption has been set to arise after working for long number of years and the principles of legitimate expectations, would not mean that there was a regular vacancy. The word ''regular'' vacancy has not been defined but that a distinction must be made between a need of regular employees, and the existence of regular vacancies. In Uttaranchal Jal Sansthan v. Laxmi Devi (Supra) the Supreme Court said; indisputably the services of the deceased had not been regularised. in both the cases the writ petitions were filed but no effective relief thereto had been granted. In the case of late Leeladhar Pandy, allegedly he was drawing salary on regular scale of pay. that may be so but the same would not mean that there existed a regular vacancy.
24. The Supreme Court further went on to explain in para 18 to 20 as follows:
18. Indisputably having regard to the equality clause contained in Articles 14 and 16 of the Constitution of India whether the appointment is in a regular vacancy or not is essentially a question of fact. Existence of a regular vacancy would mean a vacancy which occurred in a post sanctioned by the competent authority. For the said purpose the cadre strength of the category to which the post belongs is required to be taken into consideration. A regular vacancy is which arises within the cadre strength.
19. It is a trite law that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance of the constitutional scheme of equality. In view of the explanation appended to Rule 2(a), for the purpose of this case we would, however, assume that such regular appointment was not necessarily to be taken recourse to. In such an event Sub-clause (iii) of Clause (a) as also the explanation appended thereto would be rendered unconstitutional.
20. The provision of law which ex facie violates the equality clause and permits appointment through the side door being unconstitutional must be held to be impermissible and in any event requires strict interpretation. It was, therefore, for the respondents to establish that at the point of time the deceased employees were appointed, there existed regular vacancies. Offers of appointment made in favour of the deceased have not been produced.
25. In General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi (Supra) the Supreme Court considered and interpreted the expression ''regular vacancy'' in respect of same Rules namely U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974. The Judgment of the Apex Court interpreting the same Rules and deciding the questions posed before us squarely covers question No. 1, in favour of the State and is binding on the High Court.
26. On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi (Supra), we answer the questions posed as follows:
1. A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ''Government servant'' within the meaning of Rule 2(a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules.
2. The judgements in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and Ors. 1991 (18) ALR 591; Smt. Maya Devi v. State of U.P. Writ Petition No. 24231 of 1998 decided on 2.3.1998; State of U.P. v. Maya Devi Special Appeal No. 409 of 1998; Santosh Kumar Misra v. State of U.P. and Ors. 2001 (4) ESC 1615 ; and
27. All the writ petitions are consequently dismissed. The delay in filing the Special Appeal Nos. 845 (D) of 2009; 595 (D) of 2002; 610 (D) of 2003 and 1170 (D) of 2007 has been sufficiently explained and is accordingly condoned. The Special Appeal Nos. 845(D) of 2009; 595(D) of 2002; 610(D) of 2003; 1284 of 2010; 1849 of 2009; 1170 (D) of 2007; 85 of 2004 and 567 of 2008 are allowed. The judgements of learned Single Judge challenging these appeals are set aside and the writ petitions are dismissed.
