IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court's order whether the case is or not approved for reporting (Chapter VIII, Rule 32 (2) (b) Description of Case Special Appeal No. 63 of 2006 Date of decision:-02.12.2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :- 02.12.2006 Initials of Judge Note:- Bench Reader will attach this at the top of the first page of the Judgment when it is put up before the judge for signature. HIGH COURT OF UTTARANCHAL ,AT NAINITAL Special Appeal No. 63 of 2006 1. State of Uttaranchal Secretary, Public Works Department, Govt. of Uttaranchal, Dehradun. 2. Executive Engineer, Construction Division, Public Works Department , Narendra Nagar, District Tehri Garhwal. … Appellants Versus Mrs. Mangali Devi widow of Late Shri Govind Singh Rana, Resident of Village Ranikhet, Post Office Kirtinagar, district Tehri Garhwal … Respondent Delievery of Judgment:- 02nd December, 2006 Mr.N.C. Gupta learned standing Counsel for the appellants. Mr. C.D. Bahuguna learned counsel for the respondent . Coram: Hon'ble Rajeev Gupta, C.J. Hon'ble J.C.S. Rawat, J. Per Hon'ble J.C.S. Rawat, J. 1. This special appeal under Rule 5 Chapter VIII of the High Court Rules has been filed against the judgment and order dated 06.12.2003 passed by the learned Single Judge of this Court in Writ Petition No. 2726(S/S)2001 Mrs. Mangali Devi Vs. State of Uttaranchal & others, whereby the learned Single Judge has allowed the petition and directed the authority concerned to consider the appointment of the petitioner's son under the Dying -in- Harness Rules, 1974 (hereinafter referred as 1974 Rules). The learned Single Judge has also directed to pay the pension, gratuity and salary of the deceased. 2. A writ petition bearing No. 27726/2001(S/S) was filed before the learned Single Judge by the petitioner- Mrs. Mangali Devi for the following reliefs:- (a) Issue a writ, order or direction in the nature of mandamus commanding the respondents to appoint the son of the petitioner under Dying in Harness Rules and to pay the petitioner back salary, pension and gratuity with interest within the time allowed by this Hon’ble Court. (b) Issue any other suitable writ order a direction which this Hon’ble Court may deem fit and proper. (c) Award cost of the petition to the petitioner. 3. The husband of the petitioner late Sri Govind Singh Rana was Working under the Executive Engineer, Construction Division, Public Works Department Narendra Nagar, Tehri Garhwal on the post of Beldar on daily wage basis since 1977 and he worked as daily wage employee upto the year 1979. Thereafter the husband of the petitioner was taken as work charge employee on the post of Beldar since 1980 and he worked upto 05.06.1993. Thus, the husband of the petitioner worked for about a period of 16 years. The husband of the petitioner died on 05.06.1993 leaving behind the heirs and legal representatives, namely, Mrs. Mangala Devi (Widow) and four sons Gabar Singh, Jaspal Singh, Shishpal Singh and Digpal Singh. It was further alleged in the petition that the Executive Engineer, PWD had prepared a seniority list of work charge employees fin the year 1992 in which the name of the deceased - Govind Singh Rana finds place at serial no.10. One - Trilok Singh was engaged in Musterroll in the construction division, PWD Narendera Nagar, District Tehri Garhwal in the year 1984 and he was then engaged on work charge basis in the year 1989. After the death of Trilok Singh, his son was given compassionate appointment. The petitioner had further alleged that one - Harsh Mani was also appointed on daily wage basis in the year 1973 and he was taken on work charge in the year 1989. he died in the year 1993 and his son was given the compassionate appointment. The petitioner had filed the representation before the authority concerned that her elder son is also covered under the G.O. dated 16.03.1996 which provides that the work charge employee who died in service and had completed 10 years of service his dependant may be given compassionate appointment. When no heed was paid to the request of the petitioner, she filed a petition before the consumer Forum on which the Consumer Forum vide order dated 15.07.1995 allowed the petition. Feeling aggrieved by the order, the department went up in appeal before the State consumer Forum, U.P., Lucknow. The State Consumer Forum vide order dated 21.07.2000 allowed the appeal holding that the remedy of the petitioner filed the writ petition before the U.P., Public Service Tribunal. Feeling aggrieved by this, the petitioner filed the writ petition before the Court. 4. The counter affidavit was filed by the respondents against the writ petition admitting therein that the husband of the petitioner was serving in the work charge establishment. it was further alleged that the contents of petition with regard to Trilok Singh are wrong because Sri Trilok Singh was a regular employee and as such his son was given compassionate appointment. It was further alleged that the petitioner has wrongly stated in the petition that after the death of Harsh Mani, his son was given employment under the die-in-harness. Harsh Mani is alive and is still working in the department. 5. After hearing the parties, the learned Single Judge had allowed the petition vide order dated 06.12.2003 and directed to the authority concerned to pay the pension, gratuity and salary of the deceased and to consider the appoint petitioner's son under the 1974 Rules. 6. Feeling aggrieved by the said order, the present special appeal has been preferred by the appellants- State of Uttaranchal & others. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the appellants contended that the husband of the petitioner was not a regular employee. The deceased-Govind Singh Rana was only a work charge employee in the department. The irregular work charge employees are not covered under Rule 5 of the 1974 Rules and no compassionate appointment can be claimed by them. Learned counsel for the petitioner refuted the contention and contended that the husband of the petitioner had been working on the post of Beldar on daily wages since 1977 and he worked as a daily wage employee upto 1979 and thereafter her husband was taken an work charge employee on the post of Beldar since 1980 and he died in the year 1993. In this way, the husband of the petitioner had worked for a period of 16years in the department. Therefore, the son of the deceased is entitled to get compassionate appointment. 9. Rule 5 of the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 provides 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 owned or controlled by the central Government 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 educations 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." 1o. Rule 5 provides that the compassionate appointment can be given to the dependent of the Government servant . Now, we will have to see who is the Government servant under 1974 Rules. 11. The Government servant has been defined under Rule 2 of the 1974 Rules as follows:- "2. Definitions.- In these rules , unless the context otherwise requires. (a) Government means the Governments of Uttar pradesh; (b) "Government servant " means a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh. Explanation.- A Government servant whose services are placed at the disposal of a company, a corporation, an organization, a local authority, the Central Government or the Government of another State by the U.P. Government , shall, for the purposes of these rules, be deemed to be a Government servant notwithstanding that this salary is drawn from the source other than the Consolidated Fund of Uttar Pradesh. 12. The husband of the petitioner was not regularly appointed employee of the department and he was only a workcharge employee in the department. He worked in the department for 16 years. Rule 2(a)(iii) of 1974 Rules also provides that he must have three years continuous service in regular vacancy in such employment. Now, it has to be seen whether the husband of the petitioner was working in regular vacancy for a period of continuous three years. The petitioner had only pleaded in her petition that her husband-Govind Singh Rana was working under the Executive Engineer, Construction Division, Public Works Department Narendra Nagar , Tehri Garhwal on the post of Beldar on daily wage basis since 1977 and he worked as daily wage employee upto the year 1979. Thereafter, he was taken as work charge employee on the post of Beldar since 1980and he worked upto 05.06.1993. The petitioner had not pleaded in her petition that her husband had been working continuously for the last three years in the department against the regular vacancy. Learned counsel for the petitioner could not demonstrate us that her husband had put three years of continuous service against a regular vacancy. As such, the petitioner's husband cannot be said to be a Government Servant under Rule 2 (a) (iii) of 1974 Rules and the son of the deceased is not entitled to get the benefit of Rule 5. 13. Learned counsel for the appellants contended that the Government Orders referred in the impugned Judgment of the learned Single Judge are not applicable in this case. Learned counsel for the appellant further contended that these G.O.s are merely an executive order and the said G.O.s do not confer any right upon the petitioner to enforce the said orders . It was further contended that these Government Orders had been issued as guidelines to their officers in the appropriate cases. Learned counsel for the petitioner refuted the contention and contended that the Government Orders referred the impugned judgment are applicable in this case and the petitioner is entitled for the Compassionate appointment. Perusal of the said Government Orders reveals that these orders had been issued only as directions to their officers. It is well settled position of law that the executive orders or the instructions, even if issued by the State Government , would not meet the requirement of law and cannot prevail over the statutory rules framed under the provisions of Article 309 of the Constitution of India. The State is under the obligation to make appointments only in fulfillment of its Constitutional obligation, not by way of any executive instructions. The Dying in Harness Rules, 1974 had been framed by the State Government under Article 309 of the Constitution of India. The appellants are under bounden duty to make the compassionate appointments only in fulfillment of the requirement of the 1974 Rules framed under Article 309 of the Constitution of India. The administrative orders of the Government would not meet the requirements of law as these orders cannot prevail over a statute or the statutory rules framed under the provisions of the article 309 of the Constitution of India. The Rules which had been framed under Article 309confer a right to get it enforced by a court of law only after fulfillment of the requirement of the said Rule . The executive orders which had been referred in the impugned judgment of the learned Single Judge are contra to the Rules framed by the State Government under Article 309 of the Constitution of India. Thus, these orders being contra to the constitutional provisions would not confer any right upon the petitioner to enforce the said orders by the court. Thus, the petitioner is not entitled to get the benefit of the Government Orders issued time to time for the compassionate appointment of daily wages. Learned Single Judge fell in error by holding that the said Government Orders confer an enforceable right upon the petitioner before a court of law. 14. Learned counsel for the appellant further contended that the husband of the petitioner died in the year 1993. Thereafter, an application has been filed for compassionate appointment and the same was rejected by the department on 22.08.1993. A period of 13 years have been elapsed from the date of death of the deceased and there is no need of compassionate appointment as the family of the deceased had survived for a period of 13 years without compassionate appointment. The petitioner refuted the contention and contended that her husband died in the year 1993 and thereafter the family of the petitioner was in distress. The petitioner filed a petition before the Consumer Forum on which the consumer forum vide order dated 15.07.1995 allowed the petition . Feeling aggrieved by this, the department preferred an appeal before the State Consumer Forum, U.P., Lucknow. The State Consumer Forum vide order dated 21.07.2000 allowed the appeal holding that the remedy of the petitioner is to file claim petition before the U.P. Public Service Tribunal. Thereafter, the petitioner filed the writ petition before this court. It is true that the petitioner has been prosecuting her claim for a long time. But , at the same time, this fact cannot be denied that the family of the petitioner had survived for a period of 13 years. It is pertinent to mention here that the appointment in public services on compassionate ground has been carved out as an exception, in the interest of justice, to the general rule that appointments in the public services should be made strictly on the basis of open invitation of applications and merit and no other mode of appointments nor any other consideration is permissible. A compassionate appointment is made out of pure humanitarian consideration on account of the fact that unless some source of livelihood is provided the family would not be able to make both ends meet. The whole object of granting such appointment is to enable the family to tide over the sudden crisis . it is also well settled position of law that an appointment on compassionate ground has to be given in accordance with the relevant rules and guidelines that have been framed by the authority concerned and no person can claim appointment on compassionate grounds in disregard of such rules or guidelines. 15. The Apex Court, in the case of Umesh Kumar Nagpal Vs. State of Haryana 1994 (4) SCC P/138, held in para 2:- "2…………………………The whole object granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further , mere death of an employee in harness does not entitle his family to such source of livelihood. 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. The posts in classes III and Iv are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lover posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favorable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution." 16. In State of J&K & others Vs. Sajad Ahmed Mir 2006 (5) SCC 766, the Hon'ble Supreme Court has held that the compensate appointment is an exception to the general rule. 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 inspite 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. Keeping in view of this, the petitioner is not entitled for relief on this ground also. 17. The petitioner further submits that some of the work charge employees, who were appointed after the appointment of the petitioner's husband and they died during the course of employment, the benefit of compassionate appointments were given to their dependants. Learned counsel for the appellant refuted the contention. The appellant had also alleged in the counter affidavit that Trilok Singh was a regular employee of the department, therefore , after the death of Trilok Singh his son was given compassionate appointment. But the husband of the petitioner was not a regular employee. It was further alleged in the counter affidavit that Harsh Mani is alive and is still working in the department . There is no rebuttal on this point on behalf of the petitioner. The petitioner had also alleged that the services of Trilok Singh had been regularized. Thus, there was no bar to appoint his son under die-in-harness. It is established from the record that the department had not provided the compassionate appointment to any of the dependent of the daily wager. However, for the sake of arguments, it is assumed that some dependants of daily wage employees have been provided compassionate appointment illegally, such illegal appointments would not confer an enforceable right upon the petitioner to appoint her son on compassionate ground. If any illegality has been committed in past by the department, such illegality cannot be allowed to repeat in future and to perpetuate it . The Hon'ble Supreme Court has held in the State of U.P vs. Neeraj Awasthi, (2006) 1 SCC 667 as follows:- "75. The fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularized in the past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice . if illegality has been committed in the past, it is beyond comprehension as to how such illegality can e allowed to perpetuate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well settled." Therefore, the argument advanced by the learned counsel for the petitioner is not tenable. 18. It was further contended by the learned counsel for the petitioner that Trilok Singh, who was engaged after the engagement of the petitioner's husband, was regularized in the service, but the husband of the petitioner was not regularized and he died as a daily wager. It was further contended that the department should have regularized the husband of the petitioner prior to Trilik singh as the husband of the petitioner was senior to Trilok Singh . Thus , the act of the department was illegal and discriminatory. It was further contended that the petitioner's husband shall be deemed to have been regularized. Learned counsel for the appellant refuted the contentions. Perusal of the record reveals. that the petitioner's husband was a daily wage employee till he died. A daily wage employee had no enforceable right to be absorbed in service. Thus, it cannot be held that the service of the petitioner's husband would be deemed to have been regularized. A daily wager employee cannot be held regularized till the order of regularization had been passed by the competent authority under the Rules framed under the Constitution of India. 19. It is well settled position of law that it is not open to the High Court to exercise its discretion under Article 226 of the Constitution of India to issue mandamus directing the State or its instrumentalities to regularize the service of adhoc/daily wage/casual employees who had not been appointed by following the due procedure. A mandamus can not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent . The husband of the petitioner had no enforceable right to seek his absorption in the department. It has been held by the Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Umadevi 2006 AIR SCW p/1991 that:- "43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bhadur (Dr.) v. Governing Body of the Nalanda College. That Case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something , it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent." 20. In the State of Haryana & others Vs. Rani Devi & another 1996(5) SCC 308, it has been held that the High Court should not direct the authorities to appoint the claimant on compassionate ground when admittedly the deceased was working as apprentice for a limited period. If the scheme regarding appointment on compassionate ground is extended to all sorts of casual, adhoc employees including those who are working as Apprentices, then such scheme cannot be justified on