Treatment of an employee as a regular employee even if it is against his designation would deem him to be a regular employee: Supreme Court of India

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4575 2021 arising out of SLPNO.20650 2019 THE STATE OF UTTAR PRADESH & ORS. Appellant(s UTTAM SINGH Respondent(s JUDGMENT The appellants seek to assail the judgment of the Division Bench of the Allahabad High Court in terms whereof the respondent before us has been granted the benefit of compassionate appointment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules 1974 on account of demise of his father who was working with the appellants 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 respondent’s 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. The case of the respondent is also that in identical matters the appellants have appointed one Balram and one Smt. Geeta Devi whose father and husband respectively died in harness as Part Time Tubewell Operators and many other candidates of whose record is not available. The respondent argues that he was singled out in being denied the benefit possibly on account of the earlier litigation between the father of the respondent and the appellant Department. The case of the appellants is that the father of the respondent had not been regularized and merely grant of equivalent benefits on the principle of ‘equal pay for equal work’ would not make him regular employee and thus the respondent is not entitled to the benefit of the Rules for compassionate employment. In this behalf reference is made to the judgment of this Court in Gen. Manager Uttaranchal Jal Sansthan vs Laxmi Devi & Ors. 7 SCC 205 stated to be dealing with the very Rule in question It will be useful to reproduce the relevant extract of the Rules where Rule 2reads as under “ 2.Definitions Government servant” means a Government employed in connection with the affairs of Uttar Pradesh Xxxxx though not regularly appointment put in three years had service in regular vacancy in such Explanation “regularly appointed” means appointed in accordance with the procedure laid down for recruitment to the post of service as the case may be ” Thus the respondent contends that since his father was employed for more than 3 years in continuous service he was bound to be considered as a Government Servant and thus the benefit should extend to the respondent. On the other hand relying upon the aforesaid judgment where the same Rules have been analyzed learned Senior counsel for the appellants seeks to contend that this Court opined that a person not regularly appointed but who had otherwise put in 3 years continuous service in a regular vacancy cannot mean to imply that a Daily Wager would get the benefit of the Rule. 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 We may note an interesting aspect pointed out by the learned counsel for the respondent inter alia in his synopsis 2 SCC 138. 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 7 SCC 20518 ADJ 664 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. 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 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 respondent’s 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. 13. We are thus of the opinion that the course adopted by the Division Bench of the High Court is in accordance with law and the impugned order does not call for any 14. The appeal is dismissed with costs throughout 15. The necessary orders be issued in the case of the respondent within one month from date the order. SANJAY KISHAN KAUL NEW DELHI AUGUST 03 2021

Summary: Aspects associated with a person who had a regular appointment when performed on a person who is deemed otherwise will be considered as a regular employee and be eligible for all the benefits a person with regular employment would be entitled like compassionate appointment. This was held by the Hon’ble Justice Sanjay Kishan Kaul and Hon’ble Justice Hrishikesh Roy in the case of The state of Uttar Pradesh and Ors. Vs. Uttam Singh [CIVIL APPEAL NO.4575/2021] on the 03rd of August, 2021 before the Hon’ble Supreme Court of India at New Delhi. The brief facts of the case are, 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 respondent’s 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. The appellants seek to assail the judgment of the Division Bench of the Allahabad High Court in terms whereof the respondent before us has been granted the benefit of compassionate appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as “the Rules”) on account of demise of his father, who was working with the appellants. The respondents submit that, the father of the respondent had not been regularized and merely grant of equivalent benefits on the principle of ‘equal pay for equal work’ would not make him regular employee and thus the respondent is not entitled to the benefit of the Rules for compassionate employment the respondent contends that since his father was employed for more than 3 years in continuous service, he was bound to be considered as a Government Servant and thus the benefit should extend to the respondent. However, the appellant contends that, a person not regularly appointed but who had otherwise put in 3 years continuous service in a regular vacancy cannot mean to imply that a Daily Wager would get the benefit of the Rule. 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.