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
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