Searching...
Saturday, November 21, 2015

अस्थायी कर्मचारी के पाल्यों को अनुकम्पा के आधार पर नियुक्ति नहीं

                                                       

                                                    REPORTABLE
                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION
                                   CIVIL APPEAL NO. 3605 OF 2009
                                 (Arising out of SLP (Civil) No. 15469 of 2006


General Manager, Uttaranchal Jal Sansthan           .. Appellant

                                                       Versus

Laxmi Devi and others                               ....Respondents

                                                           WITH
                                      Civil Appeal No._3606 of 2009
                              (Arising out of SLP (Civil) No. 2737 of 2006)


Uttaranchal Jal Sansthan and others                 .... Appellants

                                                 Versus

Kishore Chandra Pandey                              .... Respondent


                                                                       JUDGMENT


S.B. SINHA, J.


1.    Leave granted.

2.    Whether dependent of a deceased who was not a permanent or

temporary employee would be entitled to appointment on compassionate

ground is the question involved in these appeals.

3.    Before, however, adverting to the said legal issue, we may notice the

factual matrix involved in both the maters.


Appeal arising out of SLP (C) No.15469 of 2006


4.    Husband of respondent No.1 herein, late Balam Singh had been

working as a Chowkidar under the UP Jal Nigam since 1st August 1989 as a

daily wage laborer. On or about 16th April 1991 the services of Sri Balam

Singh were transferred to the Kumaan Jal Sansthan,


      Some time around 2001 the deceased filed a writ petition No. 997

(SS) of 2001 seeking regularization of his services. On or about 11.5.2001

the High Court passed the following interim order in the said petition:


             "In the meantime the respondent are directed to
             pay minimum pay scales as is being paid to the
             similarly situated persons and consider the case of
             the petitioners for regularization"


      However, soon thereafter, on or about 25th April, 2002 he died.

Admittedly he had worked for more than 12 years till the time of his death as

a daily wage labourer.




                                                                       
5.    Respondent No.1 thereafter approached the petitioner General

Manager, Kumaon Jal Sanstha for her appointment on compassionate

grounds in place of her deceased husband under the U.P. Recruitment of

Dependants of Government Servant Dying in Harness Rules, 1974 (for short

`the Rules').   The said request was rejected on the ground that her husband

being a daily wage earner, there was no provision for her appointment on

compassionate grounds; the engagement of late Balam Singh being neither

permanent nor was he regularly appointed. His appointment was also not

against a regular vacancy.


6.    Respondent No.1 filed a writ petition before High Court which was

allowed by a learned Single Judge by his order dated 9 th May, 2005 directing

the appellants to consider her for appointment under the Rules within a

period of three months from the filing of the certified copy of the order.


7.    An intra court appeal filed by the appellants against that order stood

dismissed by the impugned judgment.


Appeal arising out of SLP ) No. 2737 of 2007




                                                                           
8.       Father of the respondent late Leelladhar Pandey had been engaged on

daily wage basis in the UP Jal Nigam. On or about 01.10.1990 he was

transferred to the Kumaon Jal Sansthan, Nanital.



         In 2001 he filed a writ petition No. 261 (SS) of 2001 before the High

Court of Uttranchal at Nainital praying therein for regularization of his

services in the Uttranchal Jal Sansthan. The said petition is admittedly still

pending with the High Court.



         Soon thereafter he died on 12.09.2002. On or about 23.01.2003 the

respondent made a representation for his appointment in the Sansthan under

the Rules. The same was however rejected in view of the Government order

dated 28.05.2002




9.       Aggrieved, the respondent filed a writ petition No. 238/2003 (S/B)

before the High Court of Uttranchal at Nanital seeking the benefit of the

Rules,



         On or about 24.02.2001 the High Court allowed the writ petition and

directed the respondent to consider the claim of the petitioner for providing



                                                                         
the appointment under the provisions of the Rules on compassionate ground

within a period of six weeks.



10.   Appellant is a Corporation constituted under the U.P. Water Supply

and Sewerage Act, 1975. Recruitment of its employees is governed by the

Rules framed by the State of Uttar Pradesh. It is, however, stated that the

posts are created only by the State of Uttar Pradesh.


11.   Indisputably applications filed by the respondents herein for grant of

appointments on compassionate grounds had been denied on the premise

that their deceased relatives were only daily wagers.



      In arriving at its finding, the High Court inter alia considered its

earlier decision to opine that as the deceased were in the employment of the

appellant for a long time, the prayer of the writ petitioners for appointment

on compassionate ground should be considered in terms of Rules.



12.   The Rules were framed by the Government of Uttar Pradesh in

exercise of its powers under the proviso to Article 309 of the Constitution of




                                                                         
India. Rule 2 provides for definitions. `Government servant" 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)   through no regularly appointed had
                            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

dependants 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 of a member of the family of the

deceased. It reads 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."



13.   The contention raised by the learned counsel for the respondents

before us is that a daily wager working for a long time would also come

within the purview of the definition of "government servant" and in any

event Leeladhar Pandy had been put on a regular scale of pay and was

holding an appointment against a regular vacant post, although no such

contention had been raised before the High Court.     Our attention has also

been brought to a purported Office Order dated 21st March, 2002, stating :


            "Kindly peruse the above referred letter of this
            Office whereby it had been acquainted that by
            making      amendment     in   Finance     Rules
            Compendium, Part-6, on the issue of abating the
            ruling of appointment related to Work Charge
            Units, this rule has been made vide Letter No.
            7553/PWD-2/2001-606         PWD/2001       dated
            10.12.2001 of Government of Uttaranchal, Public
            Works Department - 2, Dehradun that no
            appointment of dependents of deceased daily rated
            workers be done in Work Charge Units. Thus, it is
            clear that as per Government's Order, Work
            Charge Cadre has been terminated from the
            Department for future.


                                                                           
                   In pursuance of Grievance Meeting with
             P.W.D. Regular/Work Charge Worker's Union
             held on 19.03.2002, on its demand, making partial
             amendment in Letter No. 144/10 W.C.
             Uttaranchal/2001 dated 15.02.2002, the Engineer-
             in-Chief, U.P.P.W.D., Settlement (C) Section,
             Lucknow vide its Office Order Memo. No. 3552
             Settl./27/Settl./96 dated 27.06.1996 has passed an
             order to maintain the ruling of providing
             appointment on daily wage to the dependents on
             death of such Daily Rated Workers who had
             completed 10 years of their services as it is."



14.   Contention of learned counsel for the respondents is that keeping in

view the fact that the services rendered by the deceased employees were for

over 10 years, appointment on compassionate ground would be permissible,

particularly when persons similarly situated had been granted such

appointments



15.   Indisputably when Rules were framed by the State in terms of the

proviso appended to Article 309 of the Constitution of India the same would

prevail over circulars/letters which have no force of law.          The term

`government servant' has statutorily been defined. The word used in a

statute should not be read in a pedantic manner. Unless the context in which

they are used, they should be read in terms of the constitutional scheme.


                                                                         
     Rule 5 of the Rules would apply provided the deceased was a

government servant.


      Indisputably the deceased were neither in permanent employment nor

were appointed on temporary basis. At the relevant time a complete ban was

imposed on appointment of daily wagers.


16.   Learned counsel for the respondents state that their cases would come

under sub-clause (iii) of clause (a) of Rule 2. It is in the aforementioned

context that the question as to whether the appointment had been made in

regular vacancy in such appointment has to be considered.



      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. 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.



17.   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.



18.   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.



19.   Mrs. Rachana Joshi Issar, would, however, submit that the fact that

the work charged employees had been working continuously for several

years would raise a presumption that there exists a vacancy and, thus, there

is a regular need for services.
                                                                         
     Strong reliance in this behalf has been placed in this regard on

Workmen v. Bhurkunda Colliery of Central Coalfields Ltd., [ (2006) 3 SCC

297 ], wherein it was held :-



             "17. This Court in State of Haryana v. Piara Singh held that:
             (SCC p. 153, para 51)

                "So far as the work-charged employees and
                casual labour are concerned, the effort must be
                to regularise them as far as possible and as
                early as possible subject to their fulfilling the
                qualifications, if any, prescribed for the post
                and subject also to availability of work. If a
                casual labourer is continued for a fairly long
                spell--say two or three years--a presumption
                may arise that there is regular need for his
                services. In such a situation, it becomes
                obligatory for the authority concerned to
                examine the feasibility of his regularisation.
                While doing so, the authorities ought to adopt a
                positive approach coupled with an empathy for
                the person."
                Also, in the matter of regularisation, the main
                concern of the court is to see that the rule of
                law is respected and to ensure that the executive
                acts fairly and gives a fair deal to its employees
                consistent with the requirement of Articles 14
                and 16 of the Constitution. The State being a
                model employer should not exploit the
                employees nor take advantage of the
                helplessness and misery of either the
                unemployed person or the person concerned, as
                the case may be. ... Where a temporary or adhoc appointment is continued for long, the court presumes that there is regular need for his services on a regular post and accordingly considers regularisation. (Piara Singh case4,
                SCC p. 134, para 21)"



      The said case, in our opinion, would have no application to the present

case. These observations only lend support to the presumption as to a

regular need for work of the daily wage worker but not as to the existence of

a regular vacancy in this respect. In any event, it is one thing to say that by

reason of such contingencies the services of the work charged employee

should be directed to be regularized 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.



20.   In any view of the matter the fact that there was a regular need by

itself would not mean that there was a regular vacancy. A distinction must

be made between a need of regular employees and existence of regular

vacancies. The High Court, therefore, in our opinion was not correct in

proceeding to allow the writ application filed by the respondents herein on

the premise that the deceased had been working for a long time.
                                                                         
21.   Indisputably the services of the deceased had not been regularized. In

both the cases writ petitions were filed but no effective relief thereto had

been granted.


      In the case of Late Leelladhar Pandey, allegedly, he was drawing

salary on a regular scale of pay. That may be so but the same would not

mean that there existed a regular vacancy.



22.   Admittedly a Constitution Bench of this Court in Secy., State of

Karnataka v. Umadevi (3), [ (2006) 4 SCC 1 ], opined that any appointment

through side door would be violative of our constitutional scheme of

equality contained in Articles 14 and 16 of the Constitution of India, stating:



      "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. The High Courts acting under Article 226 of the
Constitution, should not ordinarily issue directions for
absorption, regularisation, 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 the
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.

This Court in Indian Drugs & Pharmaceuticals Ltd. v. Workmen,

[(2007) 1 SCC 408] has held :-


            "17. 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 grounds. There
            were not even vacancies on which they could be
            appointed. As held in A. Umarani v. Registrar,
            Coop.        Societies such employees cannot be
            regularised as regularisation is not a mode of
            recruitment. In Umarani case the Supreme Court
            observed that the compassionate appointment of a
            woman whose husband deserted her would be
            illegal in view of the absence of any scheme
            providing for such appointment of deserted
            women."

      In National Institute of Technology v. Niraj Kumar Singh,(2007) 2

SCC 481, this Court had held :-

            "     14. Appointment on compassionate ground
            would be illegal in absence of any scheme
            providing therefor. 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."


      This Court in I.G. (Karmik) v. Prahalad Mani Tripathi, [ (2007) 6

SCC 162] had held :-

            "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."


      {See also State Bank of India v. Jaspal Kaur,[ (2007) 9 SCC 571 ] }.

23.   Submission of the learned counsel for the respondents is that the said

decision is not applicable :

      a)            as it was rendered in 2006 whereas the cause of action for

                    filing the writ petition arose in 2002 ; and

      b)            a distinction must be made between the appointment on

                    ad hoc basis and appointment on compassionate ground.



24.   As to the first submission above, it is worth mentioning that judicial

decisions unless otherwise specified are retrospective. They would only be

prospective in nature if it has been provided therein. Such is clearly not the

case in Umadevi (supra). Accordingly, even though the cause of action

would have arisen in 2002 but the decision of Umadevi (supra) would

squarely be applicable to the facts and circumstances of the case. Secondly,

before a person can claim a status of a government servant not only his

appointment must be made in terms of the recruitment rules, he must

otherwise fulfill the criterion therefor. Appointment made in violation of the

constitutional scheme is a nullity. Rendition of service for a long time, it is

well known, does not confer permanency. It is furthermore not a mode of

appointment.

25.      Reliance placed on Khagesh Kumar v. Inspector General of

Registration, [1995 Supp (4) SCC 182 ] for the proposition that ad hoc

appointees working for several years without break should be considered for

regularization in accordance with the Rules, in our opinion, is clearly

inapplicable. In any event all such decisions must be held to have been

overruled in Umadevi (supra).


26.      Reliance has been placed on a purported circular issued by

Uttaranchal Public Works Department dated 21st Mach, 2002, assuming that

the same can be taken into consideration, is in our opinion wholly irrelevant.

Apart from the fact that such a contention had not been raised by the

respondents before the High Court, we fail to understand how a mere

circular letter which has no force of law shall prevail over the statutory

Rules.


         Respondents themselves have relied upon the decision of this Court in

DDA v. Joginder S. Monga, [ (2004) 2 SCC 297], wherein it was held that

executive instructions cannot run contrary to the statutory provisions.


27.      Learned counsel for the respondents submits that the daily wage

employees would be entitled to the benefit of the Rules.      They are, in our

opinion, not covered in the definition of the `government employee'.


28.      Ms. Issar urged that the daily wagers are not excluded from the

purview of the Rules. The said question, in our opinion, is irrelevant. The

question which should have been posed is as to whether daily wagers are

included within the definition of "government servant". If daily wagers are

not government servants, question of applicability of the Rules does not

arise.


29.      Submission of the learned counsel that persons similarly situated have

been appointed is again of not much relevance. Apart from the fact that the

High Court in its impugned judgment did not proceed on the said basis, it is

now well settled that Article 14 of the Constitution of India carries with it a

positive effect. Equality clause cannot apply in a case where it arises out of

illegality.

30.      Moreover, grant of appointment on compassionate ground has its own

limitations as it is an exception to the mode of regular appointment.

31.      For the reasons abovementioned the impugned judgments cannot be

sustained. They are set aside accordingly. The appeals are allowed. In the

facts and circumstances of the case, there shall, however, be no order as to

costs.



J. S.B. Sinha
J. Dr. Mukundakam Sharma

New Delhi.
May 15, 2009




                                                                                 2



                                                                                 1

संबन्धित खबरों के लिए क्लिक करें

GO-शासनादेश NEWS अनिवार्य सेवानिवृत्ति अनुकम्पा नियुक्ति अल्‍पसंख्‍यक कल्‍याण अवकाश आंगनबाड़ी आधार कार्ड आयकर आरक्षण आवास उच्च न्यायालय उच्‍च शिक्षा उच्चतम न्यायालय उत्तर प्रदेश उत्तराखण्ड उपभोक्‍ता संरक्षण एरियर एसीपी ऑनलाइन कर कर्मचारी भविष्य निधि EPF कामधेनु कारागार प्रशासन एवं सुधार कार्मिक कार्यवाही कृषि कैरियर कोर्टशाला कोषागार खाद्य एवं औषधि प्रशासन खाद्य एवम् रसद खेल गृह गोपनीय प्रविष्टि ग्रामीण अभियन्‍त्रण ग्राम्य विकास ग्रेच्युटी चतुर्थ श्रेणी चयन चिकित्सा चिकित्‍सा एवं स्वास्थ्य चिकित्सा प्रतिपूर्ति छात्रवृत्ति जनवरी जनसंख्‍या जनसुनवाई जनसूचना जनहित गारण्टी अधिनियम धर्मार्थ कार्य नकदीकरण नगर विकास निबन्‍धन नियमावली नियुक्ति नियोजन निर्वाचन निविदा नीति न्याय न्यायालय पंचायत चुनाव 2015 पंचायती राज पदोन्नति परती भूमि विकास परिवहन पर्यावरण पशुधन पिछड़ा वर्ग कल्‍याण पीएफ पुरस्कार पुलिस पेंशन प्रतिकूल प्रविष्टि प्रशासनिक सुधार प्रसूति प्राथमिक भर्ती 2012 प्रेरक प्रोन्‍नति प्रोबेशन बजट बर्खास्तगी बाट माप बेसिक शिक्षा बैकलाग बोनस भविष्य निधि भारत सरकार भाषा मकान किराया भत्‍ता मत्‍स्‍य मंहगाई भत्ता महिला एवं बाल विकास माध्यमिक शिक्षा मानदेय मानवाधिकार मान्यता मुख्‍यमंत्री कार्यालय युवा कल्याण राजस्व राज्य कर्मचारी संयुक्त परिषद राज्य सम्पत्ति राष्ट्रीय एकीकरण रोक रोजगार लघु सिंचाई लोक निर्माण लोक सेवा आयोग वरिष्ठता विकलांग कल्याण वित्त विद्युत विविध विशेष भत्ता वेतन व्‍यवसायिक शिक्षा शिक्षा शिक्षा मित्र श्रम सचिवालय प्रशासन सत्यापन सत्र लाभ सत्रलाभ समन्वय समाज कल्याण समाजवादी पेंशन समारोह सर्किल दर संवर्ग संविदा संस्‍थागत वित्‍त सहकारिता सातवां वेतन आयोग सामान्य प्रशासन सार्वजनिक उद्यम सार्वजनिक वितरण प्रणाली सिंचाई सिंचाई एवं जल संसाधन सूक्ष्म लघु एवं मध्यम उद्यम सूचना सेवा निवृत्ति परिलाभ सेवा संघ सेवानिवृत्ति सेवायोजन सैनिक कल्‍याण स्टाम्प एवं रजिस्ट्रेशन स्थानांतरण होमगाडर्स