Gen. Manager, Uttaranchal
Jal Sansthan Vs. Laxmi Devi & Ors. [2009] INSC 1085 (15 May 2009)
Judgment
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
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 3
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. 6 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 7 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.
8 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.
9 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.
1 1 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 ad
1 2 hoc 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 1 5 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.
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