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. 148 of 2006 Date of decision :-05.12.2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :-05.12.2006 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.148 of 2006 1. Uttaranchal Jal Sansthan, Dehradun through its Chief General Manager 2. General Manager, Uttaranchal Jal Sansthan (Kumaon), Nainital 3. Executive Engineer, Uttaranchal Jal Sansthan Champawat ……….Appellants Versus Amar Singh S/o Late Sri Maha Singh R/o village Barakot, Tehsil Barakot District Champawat …..Respondent Delivery of Judgment :-05th December, 2006 Mr. J.P. Joshi learned Standing Counsel for appellants. Mr. Rakesh Kumar Joshi learned counsel for respondent-Amar Singh. 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 21.03.2006 passed by the learned Single Judge of this Court in Writ Petition No.1573(S/S)2005 Amar Singh Vs. Uttaranchal Jal Sansthan & others, whereby the learned Single Judge has allowed the petition and directed the authority concerned to treat the services of the petitioner-Amar Singh as regular and not as a workcharge employee. 2. A writ petition bearing No.1573/2005(S/S) was filed before the learned Single Judge by the petitioner- Amar Singh (now ‘respondent’ in Special Appeal) for the following reliefs:- (i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to regularize the services of the petitioner to the post of Chaukidar from the date of his initial appointment. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the regular pay scale to the petitioner alongwith other consequential benefits. (iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay arrear of pay scale of the post of Chaukidar. (iv) Issue any other order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (v) Allow the writ petition with cost. 3. The father of the petitioner late Sri Maha Singh was initially appointed in the Local Self-Government Technical Department on 01.08.1972. Thereafter, Kumaon Jal Sansthan was constituted under the provisions of U.P. Water Supply & Sewerage Act, 1975 and consequently on 02.10.1975 the employees working in the Local Self-Government were transferred to Kumaon Jal Sansthan including the father of the petitioner. The father of the petitioner had continuously worked in the workcharge establishment till his death. He died in harness on 14.09.1996 leaving behind his son(petitioner) and his wife. Thereafter, the petitioner being the son of the deceased was appointed under the provisions of Dying-In-Harness Rules 1974 (hereinafter referred as ‘1794 Rules’) by the General Manager, Kumaon Jal Sansthan on the post of Chaukidar on a consolidated pay of Rs.925/- p.m. in the workcharge establishment on 09.11.1998. In pursuance of the said appointment order, he joined in the office of Executive Engineer, Jal Sansthan, Champawat. Thereafter, he was transferred to other places. The petitioner has been continuously working in the Jal Sansthan since 1998. The petitioner has further pleaded in his petition that the appointment under the provisions of the Dying-in-Harness Rules, 1974 is permanent in nature and the appellants (Jal Sansthan) were under the obligation the appoint the petitioner on regular basis and they were also under the obligation to pay the regular pay scale alongwith other consequential benefits. It was further alleged that since the petitioner has been continuously working in the department for more than six years, hence he is also entitled for equal pay for equal work. It was further pleaded in the petition that the services of the petitioner has not been regularized by the Jal Sansthan inspite of his several representations. Hence, the writ petition was filed before this Court. 4. The Uttaranchal Jal Sansthan had not filed any counter affidavit in the said writ petition inspite of opportunities given to them by the learned Single Judge. 5. After hearing the parties, the learned Single Judge had allowed the petition vide order dated 21.03.2006. It was held that the father of the petitioner had been working as work charge employee in the Jal Sansthan and after his death the petitioner was given appointment on workcharge basis under the Dying-in-Harness Rules. The learned Single Judge directed the authority concerned to treat the petitioner as regular employee and not as workcharge employee. 6. Felling aggrieved by the said order, the present special appeal has been preferred by the appellants- Uttaranchal Jal Sansthan. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the appellants (Jal Sansthan) contended that the learned Single Judge did not appreciate the fact that the petitioner was never appointed by the department under 1974 Rules and he was not entitled for compassionate appointment. It was further contended that on the written request of the petitioner, he was engaged in the work charge establishment as a daily wager. Learned counsel for the petitioner-Amar Singh on the other hand contended that the petitioner being the son of the deceased-late Sri Maha Singh was appointed in the work charge establishment on daily wage basis on 09.11.1998 in the office of the Executive Engineer, Jal Sansthan, Champawat. The petitioner being the son of the deceased has applied for the appointment under die-in- harness and the appellants (Jal Sansthan) provided him an appointment under the Dying-in-Harness Rules, 1974. It was further contended on behalf of the petitioner that the appointment provided under the 1974 Rules would be treated as a permanent appointment and not as a work charge on daily wages in the establishment. Contrary action of the appellants giving appointment to the petitioner as workcharge employee was in gross contravention of the settled proposition of law. 9. Now, we have to see as to whether the father of the petitioner was a Government servant or he was only a daily wager in the work charge establishment. Learned counsel for the appellants contended that the father of the petitioner was appointed as ‘Fitter’ in the workcharge establishment on daily wage basis and he had been working as workcharge employee till his death. Learned counsel for the petitioner contended that the father of the petitioner was a Chaukidar in the workcharge establishment and as such the petitioner was appointed in the establishment under 1974 Rules. Learned counsel for the petitioner contended that the appellants had not filed any counter affidavit and they cannot assail the grounds taken by the petitioner in his petition. Learned counsel for the appellants submitted that there was no need to file counter affidavit because the petitioner has himself mentioned in his petition that his father was a workcharge employee. It was further contended that the documents filed in the writ petition by the petitioner are sufficient to establish that the father of the petitioner had been working as work charge employee on daily wage basis. It is not disputed that the petitioner had submitted an application dated 13.01.2005 (Annexure-4 to the writ petition) in which he has admitted that his father was working as Fitter in the workcharge establishment from 1.8.1972 to 14.09.1996. The said application is sufficient to establish that the father of the petitioner was a workcharge employee. Apart this, by way of order dated 16.11.1998 (Annexure-3 to the writ petition) the petitioner was posted in the office of Assistant Engineer, Lohaghat. The expression made in the said order is that “Sri Amar Singh S/o late Sri Maha Singh Former Workcharge Fitter”. Order dated 09.11.1998 (Annexure-2 to the writ petition) by which the petitioner was appointment in the establishment also shows that the father of the petitioner was a workcharge employee in the establishment. The workcharge employees in the establishment are appointed only on daily wage basis. Thus, it is amply established from the documents produced by the petitioner that the father of the petitioner had worked in the workcharge establishment as a daily wager. 10. Now, we have to see as to whether the appointment of the petitioner was made under the Dying-in-Harness Rules, 1974 or it was made otherwise. It is not disputed that the petitioner was appointed on the post of Chaukidar on daily wage basis in the workcharge establishment in the year 1998 by the General Manager, Jal Sansthan. It was contended by the learned counsel for the appellants that the petitioner was never appointed under the provisions of 1974 Rules. Perusal of the appointment letter issued to the petitioner clearly reveals that he was appointed under the G.O. No.3619/9.3.1998-237W/97 dated 15.10.1998. The appointment letter itself shows that he was never appointed under the provisions of Dying-in-Harness Rules, 1974. The aforesaid Government Order by which the petitioner was appointed is as under:- “la[;k% 3619@9&3&98&237 MCyw@97 lsok esa] 1- funs”kd] LFkkuh; fudk;] m0ç0] y[kuÅA 2- leLr eq[; uxj vf/kdkjh] uxj fuxe] mÙkj çns”kA 3- leLr egkçcU/kd] ty laLFkku] mÙkj çns”kA 4- leLr vf/k”kklh vf/kdkjh] uxj ikfydk ifj"kn~] mÙkj çns”kA uxj fodkl vuqHkkx&3 y[kuÅ % fnukad 15 vDVwcj] 1998 fo"k;%] çns k ds leLr ty laLFkkuksa esa dk;Zjr dk;Z&çHkkfor deZpkfj;ksa dh lsokdky esa e`R;q gks tkus ij muds vkfJrksa dks dk;ZçHkkfjr vf/k"Bku esa lsok;ksftr fd;k tkukA egksn;] mi;qZDr fo"k; dh vksj vkidk /;ku vk—"V djrs gq, eq>s ;g dgus dk funsZ”k gqvk gS fd bl lEcU/k esa fofHkUu ty laLFkkuksa ls çkIr çLrko ij U;kf;d fopkjksijkUr ,oa bu deZpkfj;ksa ds vlkef;d fu/ku ds QyLo:i muds ifjokj ds lkFk dfBukb;ksa dks –f"Vxr j[krs gq, 'kklu us ;g fu.kZ; fy;k gS fd blls dk;ZçHkkfor deZpkfj;ksa] ftudh dk;ZçHkkfor vf/k"Bku esa dqy fujUrj 10 o"kZ ;k mlls vf/kd lsok gks xbZ gks ds lsokdky esa vlkef;d fu/ku gks tkus ij muds ,d vkfJr iRuh ;k ifr] iq= vFkok vfookfgr iq=h dks ekuoh; vk/kkj ij mudh 'kSf{kd ;ksX;rk ds vuqlkj dk;ZçHkkfor vf/k"Bku esa gh ,sls inksa ij tks yksd lsok vk;ksx dh ifjf/k esa u gks] lsok;kstu çnku fd;k tk;sA ,sls vkfJrksa ds fy, dk;ZçHkkfor vf/k"Bku esa HkrhZ ds le; fu/kkZfjr çfØ;k ykxw ugha gksxh rFkk muds ekeyksa esa vko”;drkuqlkj vk;q lhek Hkh f”kfFky dh tk ldsxhA e`rd vkfJr dks dk;Z çHkkfor vf/k"Bku esa fu;qfDr nsus ds vkns’k lEcfU/kr eq[; uxj vf/kdkjh] egkçcU/kd] ty laLFkku ,oa vf/k”kklh vf/kdkjh] uxj ikfydk ifj"kn~ ds Lrj ls gh çlkfjr fd;s tk;saxsA ;g vuqdEik fu;qfDr dk;Z çHkkfor@ftl ij e`rd deZpkjh fu;qfDr Fks] ds U;wure osrueku ij dh tk;sxhA Hkonh;] g0 ¼vkj0 ds flag½ fo”ks"k lfpoA” 11. The aforesaid G.O. provides that the work charge employee who died in service and had completed 10 years of service his dependant may be given compassionate appointment in the establishment as workcharge employee on daily wages. The said G.O. is a concession to the employees who died as daily wager working in the work charge establishment and the necessity of issuing the said G.O. seems to have been that the work charge employees were not being covered be by 1974 Rules and as such some concessions were given to the daily wagers who had worked for the last 10 years. The appointment of the petitioner was made under the relevant provisions of the aforesaid G.O. and not under the provisions of Dying-in-Harness Rules, 1974. 12. The learned counsel for the appellants further contended that the father of the petitioner had worked in the Jal Sansthan as workcharge employee on daily wage basis from 01.08.1972 to 14.09.1996. The father of the petitioner was only a daily wager and as such the petitioner was not entitled to be appointed in the Jal Sansthan under the Dying in Harness Rules. It was further contended that the dependents of the employees, who died in harness and has completed 10 years or more continuous service in work charge establishment are entitled to be appointed under 1974 Rules. Learned counsel for the petitioner refuted the contention and contended that the father of the petitioner was employed as Fitter in the Jal Sansthan as a work charge employee and the petitioner was entitled to get the appointment under the provisions of Dying in Harness Rules. 13. Rules 5 of the U.P. Recruitment of Dependants of Government Servants 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 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 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.” 14. To attract the provisions of Rule 5 of Dying in Harness Rules, 1974, it is essential to be established that :- i) the government servant has died in harness after the commencement of these Rules; ii) the spouse of the deceased Government servant is not already employed under the Central or State Government or Corporation owned by the Central or the State Government; and iii) the member of his family who is not employed under the Central or State Government or any Corporation owned by the Central or State Government seeking appointment under these Rules fulfils the educational qualifications prescribed for the post and is otherwise qualified for Government service. 15. Rule 5 provide 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. 16. “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 Government 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. 17. The father of the petitioner was not a regularly appointed employee of the department and he was only a workcharge employee in the department. He worked in the department for more than 10 years. Rules 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 father of the petitioner was working in regular vacancy for a period of continuous three years. The petitioner had pleaded in his petition that his father-late Sri Maha Singh was working on the post of ‘Fitter’ on daily wage basis since 1972. The petitioner had not pleaded in his petition that his father 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 his father had put three years of continuous service against a regular vacancy. As such, the petitioner’s father cannot be said to be a Government Servant under Rules 2(a)(iii) of 1974 Rules and the son of the deceased is not entitled to get the benefit of Rule 5. 18. It was further contended on behalf of the petitioner that even if no post was available for the appointment of the petitioner under the Dying in Harness Rules, the competent authority should have provided employment by creating a supernumerary post on compassionate ground and the competent authority could not have denied the regular appointment to the petitioner. Learned Counsel for the appellants refuted the contention. 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 appointment 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. 19. According to the 1974 Rules, the employment is to be provided on a post in relaxation of normal recruitment rules if such person fulfills the prescribed qualification. Thus, the provisions clearly provide that there must be some vacancy available at the time of the appointment. The petitioner had not alleged in his petition that a vacancy was available at the time of the submission of the application to the competent authority. The appointment under the Dying in Harness Rules, 1974 being an exception to the general rule of the appointments to be made by due process, the Courts should not direct compassionate appointment as a matter of course without strict adherence of the rules. 20. The Apex Court, in the case of Umesh Kumar Nagpal Vs. State of Haryana 1994 (4) SCC p/138, held in paras 2 and 4 :- “2. ………………The whole object of 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 lower posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable 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. 3. ……………… 4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in post above Class III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain Vs. Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government’s instructions in question did not justify compassionate employment in Class II posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased’s family. Neither the qualifications of his dependant nor the post which he held is relevant.” 21. Rule 8(3) of the 1974 Rules provides that the appointment will be made against the existing (available) vacancy. There was no averment in the petition that the vacancy was available. In the case in hand, the petitioner was not entitled even though the vacancy was available in the regular department as the father of the petitioner was not a Government servant within the definition of 1974 Rules as such he was not entitled to be appointed under the Dying in Harness Rules. In view of the above, he was never appointed under the provisions of the Dying in Harness Rules. As such, he is not entitled to get compassionate appointment. 22. Learned counsel for the appellants further contended that the learned Single Judge has erred in holding that the appointment of the petitioner should be treated in the regular vacancy. The petitioner had also claimed that the petitioner has a vested right to get the equal pay for equal work. The appellants are treating the petitioner unfairly by giving him less wages in comparison with those directly recruited who are getting more wages or salaries for doing the similar work. Learned counsel for the appellants refuted the contention. The petitioner was employed on daily wage basis in the Jal Sansthan. It is not the case of the petitioner that the wages agreed upon was not being paid by the appellants. The appointment letter of the petitioner clearly reveals that the appointment of the petitioner was made on a consolidated pay of Rs.925/- per month in the work charge establishment as daily wager. The appointment letter itself shows that he was appointment as a daily wager in the establishment. The petitioner was a daily wager and he cannot claim that he is discriminated as against those who have been regularly recruited on the basis of the relevant rules. The petitioner has no right to claim the equal pay for equal work. When any person is appointed as daily wager, he knows the nature of his appointment and the wages he would get after his engagement. He accepts the employment knowing the consequence of the employment. He also knows that he had been appointed by the appointing authority without any process being undertaken for selection and he had deprived a number of persons who were aspirant of the employment. He very well knows that he had got the employment with the sympathy of the appointing authority. Thus, he would be ready to face the consequences of the employment which he had received in relaxation of the authorities and behind the back of constitutional scheme. Thus, such employees create a class itself and they cannot claim