THE STATE OF UTTAR PRADESH & ORS. versus UTTAM SINGH on 3 August 2021

J U D G M E N T

Leave granted.

1. The appellants seek to assail the judgment of the Division Benchof the Allahabad High Court in terms whereof the respondent before ushas been granted the benefit of compassionate appointment under theUttar Pradesh Recruitment of Dependants of Government Servants Dyingin Harness Rules, 1974 (hereinafter referred to as “the Rules”) onaccount of demise of his father, who was working with the appellants.

2. The father of the respondent had earlier waged a legal battleagainst the appellant-Department arising out of his endeavour to get hisappointment post his selection for the post of Tubewell Operator. The A

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AHigh Court in the impugned order opined that the selection process ofthe father of the respondent was unambiguous and against the regularvacancy whereby he had submitted all the requisite documents to theIrrigation Department. The case of the respondent is that the appellantsheld up this issue over six years and the actual appointment took placeonly on 29.01.2003. The respondent’s father continued to work and drawBemoluments for a period of 13 years equivalent to the regular pay-scaletill he unfortunately passed away on 09.03.2016.

3. The case of the respondent is also that in identical matters, theappellants have appointed one Balram and one Smt. Geeta Devi, whosefather and husband respectively died in harness, as Part Time TubewellCOperators and many other candidates of whose record is not available.The respondent argues that he was singled out in being denied the benefitpossibly on account of the earlier litigation between the father of therespondent and the appellant-Department.

4. The case of the appellants is that the father of the respondentDhad not been regularized and merely grant of equivalent benefits on theprinciple of ‘equal pay for equal work’ would not make him regularemployee and thus the respondent is not entitled to the benefit of theRules for compassionate employment. In this behalf reference is madeto the judgment of this Court in Gen. Manager, Uttaranchal Jal SansthanEvs Laxmi Devi & Ors. (2009) 7 SCC 205 stated to be dealing with thevery Rule in question. It will be useful to reproduce the relevant extractof the Rules where Rule 2 (a)(iii) reads as under :

“ 2. Definitions-

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(a) Government servant” means a Government employed inconnection with the affairs of Uttar Pradesh who-

(i) xxxxx

(ii) Xxxxx

G(iii) though not regularly appointment, had put in three yearscontinuous service in regular vacancy in such employment; Explanation- “regularly appointed” means appointed in accordancewith the procedure laid down for recruitment to the post of service,as the case may be;”

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5. Thus the respondent contends that since his father wasemployed for more than 3 years in continuous service, he was bound tobe considered as a Government Servant and thus the benefit shouldextend to the respondent. On the other hand, relying upon the aforesaidjudgment where the same Rules have been analyzed, learned Seniorcounsel for the appellants seeks to contend that this Court opined that aperson not regularly appointed but who had otherwise put in 3 yearscontinuous service in a regular vacancy cannot mean to imply that aDaily Wager would get the benefit of the Rule. We may, however, notethat the Court had opined on the facts of that case holding that benefitwould not accrue to the respondent. The regular vacancy was held tomean a vacancy which occurred in posts sanctioned by the competentauthority. The service of the deceased employee had not actually beenregularized though they have claimed regularization. The fact that thedeceased employee was drawing salary in a regular pay-scale was heldnot to mean that they are against a regular vacancy.

6. We may note an interesting aspect pointed out by the learnedcounsel for the respondent, inter alia, in his synopsis (as usual theappellants did not consider it appropriate to assist this Court by filing asynopsis as had been directed vide the last order, apart from the note onthe cause list!). The respondent has stated that during the period of 13years of the employment of the father of the respondent, he wastransferred from the Irrigation Department to Panchayati Raj Departmentas ‘Gram Panchayat Vikas Adhikari’ and vice versa, i.e, he wastransferred 2 or 3 times by the appellants and was even appointed as apolling officer by State Election Commission on 15.10.2015, 26.11.2015and 03.12.2015. It is thus the submission that there could not have beensuch inter-departmental transfers and re-transfers if the father of therespondent was not being considered as a regular employee. Not onlythat, it is contended that there would possibly be no case where a personis deployed under the Representation of People Act, 1951, who is not aGovernment employee. This is apart from the fact that the respondent’sfather was the operator of 2 Government tubewells which was stated tobe equivalent to the job of a regular tubewell operator i.e., a 9 a.m. to 5.P.m., which some times ran over more than 8 hours, subject to the demandof farmers.

7. Learned counsel for the appellants however gives an explanationby stating that these persons were originally deployed as Gram PanchayatVikas Adhikari, transferred and re-transferred back and the challenge AB

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Ato the same was repelled in U.P. Gram Panchayat Adhikari vs DayaRam Saroj & Ors., (2007) 2 SCC 138.

8. If we turn to the impugned order of the Division Bench, theHigh Court has taken note of the Full Bench of the Allahabad HighCourt which is in consonance with the view propounded by this Court inBthe case of Gen. Manager, Uttaranchal Jal Sansthan vs Laxmi Devi &Ors, (2009) 7 SCC 205 (supra)[1]. However, it noted the contention thatthough the father of the respondent was termed as a Part Time tubewelloperator but he was always treated as a regular employee. The Courttook note of the rule referred to aforesaid and the explanation giventhereto which requires that an appointment with procedure laid downCfor recruitment to the post or the service. The order of appointment inthe case of the father of the respondent has been found to be unambiguousin its terms in accordance with norms after verification of all hiscertificates. A complete process of selection was conducted by theappellants as the employer. At the first instance, appointment was deniedDto him on account of he not being a resident of the command area of thetubewell concerned but this ground was found unsustainable by the judicialview taken by the High Court by an earlier order dated 29.01.2003 andconsequently the father of the respondent was appointed. It is in thesegiven facts of the case that it has been found that the benefit should bemade available to the respondent under the Rules. The facts have beenEfound sufficient by the High Court to come to the conclusion that theappointment of the father of the respondent was against a regular vacancyand that is why in that background from the inception regular pay-scalewas allowed to him and he thus satisfied the parameters of the Rulesaforesaid.F9. We are in complete agreement with the view taken by the HighCourt in the given factual scenario. We may say, it appears that theappellants, for reasons best known to them, endeavoured to deny thefather of the respondent his dues even though the appointment was througha proper process. The High Court opined against the manner in whichGthe father of the respondent was denied employment. That is the reasonthat from the very inception he was given the benefits of a regularemployee while designating him as a Part Time tubewell operator. TheHigh Court has found that these facts show that the appointment wasagainst the regular vacancy though it continued to be termed as a ‘PartH1 Pavan Kumar Yadav v. State of Uttar Pradesh & Ors., (2010) 18 ADJ 664

Time’ appointment apart from the fact that his work hours were of aregular employee entitling him to equal pay for equal work.

10. We have also taken note of the fact that during his 13 longyears of employment and before that having battled the appellants forthe period of 6 years to get his dues, the father of the respondent wasalso transferred from one department to the other, normally an aspectwhich would be associated with a person who had a regular employment.The most significant aspect is that had the father of the respondent notbeen considered a regular appointee, there would be no occasion for theDepartment to volunteer his services to the State Election Commissionto perform election duties, which could have been done only by aGovernment employee, as is specified under Section 159 of theRepresentation of the People Act, 1950 (“Staff of certain authorities tobe made available for election work”).

11. The present case is thus one which is peculiar in its givenfactual scenario which we have discussed above and thus for all practicalpurposes, it is a case of an appointment against a regular vacancy. Therespondent’s father was treated as a regular employee by the aforesaidconduct of the appellants even though he was labelled as a Part Timetubewell operator.

12. We may like to further say that from the illustrations given bythe appellants, at least 2 persons, as noted before, were employed in asimilar scenario i.e., Balram and Smt. Geeta Devi whose father andhusband respectively died in harness as Part Time tubewell operators. Itis quite obvious that there is an discrimination against the respondentpossibly arising from the previous litigation between the appellants andthe deceased father of the respondent. There is no satisfactoryexplanation for the same and we cannot permit the appellant-Departmentto harass the respondent in this manner.

13. We are thus of the opinion that the course adopted by theDivision Bench of the High Court is in accordance with law and theimpugned order does not call for any interference.

14. The appeal is dismissed with costs throughout.

15. The necessary orders be issued in the case of the respondentwithin one month from date the order.

Appeal dismissed.

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