Case: THE STATE OF UTTAR PRADESH &amp; ORS Vs. UTTAM SINGH

2. The father of the respondent had earlier waged a legal battle against the appellant-Department arising out of his endeavour to get his appointment post his selection for the post of Tubewell Operator. The High Court in the impugned order opined that the selection process of the father of the respondent was unambiguous and against the regular vacancy whereby he had submitted all the requisite documents to the Irrigation Department. The case of the respondent is that the appellants held up this issue over six years and the actual appointment took place only on 29.01.2003. The respondents father continued to work and draw emoluments for a period of 13 years equivalent to the regular pay-scale till he unfortunately passed away on 09.03.2016.

Reasoning: We may, however, note that the Court had opined on the facts of that case holding that benefit would not accrue to the respondent. The regular vacancy was held to mean a vacancy which occurred in posts sanctioned by the competent authority. The service of the deceased employee had not actually been regularized though they have claimed regularization. The fact that the deceased employee was drawing salary in a regular pay-scale was held not to mean that they are against a regular vacancy.8. If we turn to the impugned order of the Division Bench, the High Court has taken note of the Full Bench of the Allahabad High Court which is in consonance with the view propounded by this Court in the case of Gen. Manager, Uttaranchal Jal Sansthan vs Laxmi Devi & Ors, (2009) 7 SCC 205 (supra)(Pavan Kumar Yadav v. State of Uttar Pradesh & Ors., (2010) 18 ADJ 664). However, it noted the contention that though the father of the respondent was termed as a Part Time tubewell operator but he was always treated as a regular employee. The Court took note of the rule referred to aforesaid and the explanation given thereto which requires that an appointment with procedure laid down for recruitment to the post or the service. The order of appointment in the case of the father of the respondent has been found to be unambiguous in its terms in accordance with norms after verification of all his certificates. A complete process of selection was conducted by the appellants as the employer. At the first instance, appointment was denied to him on account of he not being a resident of the command area of the tubewell concerned but this ground was found unsustainable by the judicial view taken by the High Court by an earlier order dated 29.01.2003 and consequently the father of the respondent was appointed. It is in these given facts of the case that it has been found that the benefit should be made available to the respondent under the Rules. The facts have been found sufficient by the High Court to come to the conclusion that the appointment of the father of the respondent was against a regular vacancy and that is why in that background from the inception regular pay-scale was allowed to him and he thus satisfied the parameters of the Rules aforesaid.9. We are in complete agreement with the view taken by the High Court in the given factual scenario. We may say, it appears that the appellants, for reasons best known to them, endeavoured to deny the father of the respondent his dues even though the appointment was through a proper process. The High Court opined against the manner in which the father of the respondent was denied employment. That is the reason that from the very inception he was given the benefits of a regular employee while designating him as a Part Time tubewell operator. The High Court has found that these facts show that the appointment was against the regular vacancy though it continued to be termed as a Part Time appointment apart from the fact that his work hours were of a regular employee entitling him to equal pay for equal work.10. We have also taken note of the fact that during his 13 long years of employment and before that having battled the appellants for the period of 6 years to get his dues, the father of the respondent was also transferred from one department to the other, normally an aspect which would be associated with a person who had a regular employment. The most significant aspect is that had the father of the respondent not been considered a regular appointee, there would be no occasion for the Department to volunteer his services to the State Election Commission to perform election duties, which could have been done only by a Government employee, as is specified under Section 159 of the Representation of the People Act, 1950 (Staff of certain authorities to be made available for election work).11. The present case is thus one which is peculiar in its given factual scenario which we have discussed above and thus for all practical purposes, it is a case of an appointment against a regular vacancy. The respondents father was treated as a regular employee by the aforesaid conduct of the appellants even though he was labelled as a Part Time tubewell operator.12. We may like to further say that from the illustrations given by the appellants, at least 2 persons, as noted before, were employed in a similar scenario i.e., Balram and Smt. Geeta Devi whose father and husband respectively died in harness as Part Time tubewell operators. It is quite obvious that there is an discrimination against the respondent possibly arising from the previous litigation between the appellants and the deceased father of the respondent. There is no satisfactory explanation for the same and we cannot permit the appellant-Department to harass the respondent in this manner.