# Akhilesh Kumar Chaubey v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 835
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-04
- **Case number:** Civil Misc. Writ Petition No.33685 of 2002
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-chaubey-v-state-of-u-p-and-others-40550
- **Pages:** 6

## Headnote

Dying in Harness Rules 1974 rule 2 (a)
(iii)-employer
though
not
regularly
appointed-3yrs.
Service
on
regular
vacancy-The
dependant
of
such
employee entitled for the benefit of
Compassionate
appointment-12
yrs.
Continuous service-benefit of leave etc.
given-held requirement was perpetual
and regular in nature hence come under
the definition of Govt. servant for the
purpose
of
appointment
on
compassionate ground.

Held: Para 13 and 14

Taking the present case it is not disputed
that
the
petitioner's
father
was
appointed in 1987 and he continued to
work
continuously
till
he
died
on
20.8.99.
The
appointment
of
the
petitioner's father was initially for a
period of three years on being selected
by a Selection Committee. The said
appointment was then converted and he
was appointed as tube well assistant in
1992 also for three years. He continued
to work and was paid his salary regularly
and there was no break in his service.
This fact is also not denied by the
respondents.
The
fact
that
the
respondents required the services of the
petitioner's father continuously since
1987 to 1999 is indicative of the fact
that the requirement was of a perpetual
and regular nature. It is not the case of
the respondents that the work of tube
well operators no more exists. It has
also not been pleaded that such tube
well operators are no more required. On
a vacancy which may occur of a part
time tube well operator the tube well
still has to be operated, therefore, the
nature of work is existing day to day and
the respondents have taken the services
of
the
petitioner's
father
due
to
existence
of
work
since
1987
continuously. During this period of
nearly 12 years the salary has been
disbursed by the respondents month to
month. The nature of work required to
be performed by the petitioner's father
was of a regular nature as is apparent
from a reading of the appointment letter
dated 20.5.92 wherein the duties of the
petitioner have been prescribed. It is
also
not
disputed
by
the
learned
Standing Counsel that the part time tube
well operators are being paid the same
salary as regularly appointed tube well
operators on the principle of 'equal pay
for
equal
work.'
The
duties,
qualifications and hours of working of
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
836
part time tube well operators and
regular tube well operators are identical
has been held by this court and the
Hon'ble
Supreme
Court
in SLP (c)
No.16219 of 1994 decided on 22.3.1995.

For the aforesaid reasons and the facts
of this case it is concluded that the
Government Order dated 26.10.1998
would not be applicable in the present
case in as much as the petitioner's father
would come under the definition of
'Government Servant' as defined under
Rule 2(a) (iii) of the Rules for the
purpose
of
appointment
of
his
dependants on compassionate grounds.
Case law discussed:
2005 (1) UPLBEC-1
2003 (1) LBESR-410
2005 (1) LBESR-571

## Text

2 All] Pan Kumari V. Board of Revenue and others 835
provides the period for limitation for
filing a suit under Section 209. It would
follow therefore that a suit under Section
229-B would be barred by limitation the
bhumidar is out of possession and his
right to file a suit under Section 209 is
barred by limitation. The finding of fact
recorded on the question of possession is
that the plaintiffs have established their
continuous possession over the disputed
land. The finding is not shown to be
vitiated by any error. As the rights of the
plaintiff were never extinguished no
question of limitation arises. For the
reasons given above the writ petition
lacks merit and is dismissed.
30.8.2005. Petition dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2005

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No.33685 of 2002

Akhilesh Kumar Chaubey
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.M. Pandey
Sri Ramesh Chand
Sri K.K. Misra

Counsel for the Respondents:
C.S.C.

Dying in Harness Rules 1974 rule 2 (a)
(iii)-employer
though
not
regularly
appointed-3yrs.
Service
on
regular
vacancy-The
dependant
of
such
employee entitled for the benefit of
Compassionate
appointment-12
yrs.
Continuous service-benefit of leave etc.
given-held requirement was perpetual
and regular in nature hence come under
the definition of Govt. servant for the
purpose
of
appointment
on
compassionate ground.

Held: Para 13 and 14

Taking the present case it is not disputed
that
the
petitioner's
father
was
appointed in 1987 and he continued to
work
continuously
till
he
died
on
20.8.99.
The
appointment
of
the
petitioner's father was initially for a
period of three years on being selected
by a Selection Committee. The said
appointment was then converted and he
was appointed as tube well assistant in
1992 also for three years. He continued
to work and was paid his salary regularly
and there was no break in his service.
This fact is also not denied by the
respondents.
The
fact
that
the
respondents required the services of the
petitioner's father continuously since
1987 to 1999 is indicative of the fact
that the requirement was of a perpetual
and regular nature. It is not the case of
the respondents that the work of tube
well operators no more exists. It has
also not been pleaded that such tube
well operators are no more required. On
a vacancy which may occur of a part
time tube well operator the tube well
still has to be operated, therefore, the
nature of work is existing day to day and
the respondents have taken the services
of
the
petitioner's
father
due
to
existence
of
work
since
1987
continuously. During this period of
nearly 12 years the salary has been
disbursed by the respondents month to
month. The nature of work required to
be performed by the petitioner's father
was of a regular nature as is apparent
from a reading of the appointment letter
dated 20.5.92 wherein the duties of the
petitioner have been prescribed. It is
also
not
disputed
by
the
learned
Standing Counsel that the part time tube
well operators are being paid the same
salary as regularly appointed tube well
operators on the principle of 'equal pay
for
equal
work.'
The
duties,
qualifications and hours of working of
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
836
part time tube well operators and
regular tube well operators are identical
has been held by this court and the
Hon'ble
Supreme
Court
in SLP (c)
No.16219 of 1994 decided on 22.3.1995.

For the aforesaid reasons and the facts
of this case it is concluded that the
Government Order dated 26.10.1998
would not be applicable in the present
case in as much as the petitioner's father
would come under the definition of
'Government Servant' as defined under
Rule 2(a) (iii) of the Rules for the
purpose
of
appointment
of
his
dependants on compassionate grounds.
Case law discussed:
2005 (1) UPLBEC-1
2003 (1) LBESR-410
2005 (1) LBESR-571

(Delivered by Hon'ble Sanjay Misra, J.)

1. Heard the learned counsel for the
petitioner and the learned Standing
Counsel appearing on behalf of the
respondents.

2. By means of this writ petition the
petitioner seeks quashing of order dated
25.1.2000 communicated by letter dated
28.1.2000 passed by respondent no.2
(Annexure-12
to
the
writ
petition)
whereby the claim for appointment of the
petitioner under Dying in Harness Rules,
1974 has been refused. It has been stated
by the petitioner that in the aforesaid
communication, no reason has been given
for such denial and as such the same is
liable to be quashed by this court. It is
further stated that the petitioner is entitled
for compassionate appointment in place
of his deceased father who was a Tubewell
Operator
having
been
given
appointment in the year 1987. The
appointment letter dated 19.3.87 has been
filed as Annexure-4 to the writ petition.
The appointment was temporary for a
period of three years and he could be
considered for re-appointment. Prior to
joining he was to be given fifteen days
training and his salary was fixed at
Rs.299.00 per month. He was also entitled
to leave as per conditions given in the
appointment letter.

3. It has been stated that late Kashi
Nath Chaube had filed a writ petition no.
9507 of 1996 claiming parity of pay with
other regular tube well operators in view
of the decision of this court in Writ
Petition No.3558 (S/S) 1992. By an order
dated 20.5.92 he was posted as Tube-well
Assistant on a salary of Rs.550.00 per
month and the nature of his duties was
also defined. It is stated that the
petitioner's late father was posted as
Gram Panchayat Vikas Adhikari by virtue
of G.O. dated 30.6.99and his name finds
place at serial no.40 of the list dated
9.7.99 prepared by the District Magistrate.
It is the contention of the petitioner that
his late father had worked for a period of
nearly 12 years whereafter he died on
20.8.99 while in active service. The
petitioner made an application dated
29.12.99 for appointment of the petitioner
on compassionate ground claiming that
the
petitioner's
qualification
is
Intermediate.

4. A counter affidavit has been filed
by the respondent wherein the facts as
averred by the petitioner have not been
disputed. However, it has been stated that
by virtue of Government Order dated
26.10.98 (filed as Annexure-4 to the
counter affidavit) the dependants of part
time Tube-well Operators are not entitled
to
the
benefits
of
compassionate
appointment under the Dying in Harness
Rules, 1974.
2 All] Akhilesh Kumar Chaubey V. State of U.P. and others 837

5. Learned Standing counsel has
placed reliance on the decision of Apex
court reported in 2005 Vol.I U.P LBEC
page 1 State of U.P. and another Vs. Ram
Sukhi Devi and has contended that the
G.O. dated 26.10.98 was not considered
in that case by the High Court while
passing an interim order and Hon'ble
Supreme Court was pleased to set aside
the order of High Court. Paragraph 6 of
the judgment is quoted hereunder:-

"To say the least, approach of the
learned Single Judge and the Division
Bench is judicially unsustainable and
indefensible. The final relief sought for
in the writ petition has been granted as
an interim measure. There was no
reason indicated by learned Single Judge
as to why the Government Order dated
26.10.1998 was to be ignored. Whether
the writ petitioner was entitled to any
relief in the writ petition has to be
adjudicated at the time of final disposal
of the writ petition. This court has no
numerous occasions observed that the
final relief sought for should not be
granted at an interim stage. The position
is worsened if the interim direction has
been passed with stipulation that the
applicable Government Order has to be
ignored. Time and again this court has
deprecated the practice of granting
interim orders which practically give the
principal relief sought in the petition for
no better reason than that of prima facie
case has been made out, without being
concerned
about
the
balance
of
convenience, the public interest and a
host
of
other
considerations.
(See
Assistant Collector of Central Excise,
West Bengal Vs. Dunlop India Ltd.,
(1985) 1 SCC 260, State of Rajasthan
Vs.M/S Swaika Properties; (1985) 3 SCC
217, State of U.P. and othersVisheswar,
(1985)
Suppl
(3)
SCC
590,
Bharatbhushan Sonaeji Kshirsagar Vs.
(Dr) Abdul Khalik Mohd. Musa and
others, (1995) Suppl (2) SCC; Shiv
Shanker and others Vs. Board of
Directors, U.P.S.R.T.C. and another;
(1995)
Supp
(2)
SCC
726
and
Commissioner/ Secretary to Govt. Health
and Medical Education Department Civil
Sectt. Jammu Vs. Dr.Ashok Kumar
Kohli ,JT 1995 (8) SC 403). No basis has
been indicated as to why learned Single
Judge though the course as directed was
necessary to be adopted. Even it was not
indicated that a prima facie case was
made out though as noted above that
itself is not sufficient. We, therefore, set
aside the order passed by learned Single
Judge as affirmed by the Division Bench
without expressing any opinion on the
merits of the case we have interfered
primarily on the ground that the final
relief has been granted at an interim
stage without justifiable reason. Since
the controversy lies within a very narrow
compass, we request the High Court to
dispose of the matter as early as
practicable preferably within six months
from the date of receipt of this
judgment."

6. Learned counsel for the petitioner
on the other hand has argued that Rule
2(a) (iii) of the Dying in Harness Rules
provides that even though an employee is
not regularly appointed but he has put in
three years service in regular vacancy the
benefits of said Rules flow to the
dependant of the deceased employee.
Learned counsel for the petitioner has
relied upon the decision of this court in
Sunil Kumar Vs. State of U.P. reported in
2003 (1) LBESR 410 Allahabad wherein
this court considered the Dying in
Harness Rules 1974 and held that a daily
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
838
wage
employee
working
against
a
permanent requirement of Nagar Nigam
for more than three years in the vacancy
existing for more than 13 years even
though he continued to wear the badge of
daily wage employee his dependant
would be entitled for the benefits under
Dying in Harness Rules. In the aforesaid
case this court has considered the G.O.
dated 18.10.98 to the effect that the
benefits under Dying in Harness Rules
would be applicable to work -charge
employee.
Learned
counsel
for the
petitioner has placed reliance upon a
decision of this court in Writ Petition
No.52395 of 2004 (Shiv Sagar Vs. State
of U.P. and others) wherein it was held by
this court that although the petitioner's
father was a Collection Amin and was not
a permanent employee but had worked for
11 years even then the petitioner was
entitled for the benefits of Dying in
Harness Rules by virtue of Rule 2 (a) (iii)
of the said Rules.

7. Learned counsel for the petitioner
has also relied upon on the decision
reported in 2005 (1) LBESR page 571
(Rajesh Kumar Vs. State of U.P. and
others) wherein the benefit of Dying in
Harness Rules was extended to the
dependant of a deceased work charged
employee.

8. It is admitted between the parties
that the petitioner's father was initially
appointed as part time tube well operator
for a period of three years and that
thereafter his appointment was extended
and he worked as such from 1987 upto
1999 without any break in service. In the
year 1999 he was sent to Gram Panchayat
by virtue of a G.O. dated 30.6.99 and was
designated as Gram Panchayat Vikas
Adhikari and he worked till his death on
20.8.1999. The parent department of the
petitioner's father was the Irrigation
Department of the State and he has
worked since 1987 continuously although
he was designated as part time tuber well
operator
and
since
1992
he
was
designated as tube well Assistant. He was
retained in employment for nearly 12
years by the respondents for their
requirement to operate tube wells. Such
employment given by the respondents to
the petitioner's father continued without
break since 1987 to 1999. Having taken
work and kept him on the rolls for such a
long period of 12 years goes to show that
the requirement of the respondents for the
petitioner's services existed continuously
and at no point of time the petitioners
father was removed.

9. The Government order dated
26.10.98 has been brought on record by
the respondents. It provides that there is
no provision in the Dying in Harness
Rules 1974 for giving benefit of the said
Rules to dependants of part time tube well
operators. On the basis of this government
order the respondents have rejected the
claim of the petitioner for appointment
under the Rules. The order dated
25.1.2000 (Annexure- CA2) states that in
view of the letter dated 7.11.98 the
petitioner cannot be given benefit of
compassionate appointment. The letter
dated 7.11.98 refers to the G.O. dated
26.10.98. In the counter affidavit the plea
taken by the respondents is to the same
effect that the benefit of the Rules of 1974
cannot be extended to the petitioner in
view of the G.O. dated 26.10.98.

10. The Dying in Harness Rules
1974 have been made in exercise of
powers
under
Article
309
of
the
Constitution of India. They came into
2 All] Akhilesh Kumar Chaubey V. State of U.P. and others 839
force on 21.12.1973. Rule 2 defines
Government servant as under:-
"2. Definitions:- In these rules, unless
the context otherwise requires:
(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) though not regularly appointed, had
put in three years' continuous service in
regular vacancy in such employment."

11. It is apparent from a reading of
Rule 2 (a)(iii) that a person though not
regularly appointed but has put in three
years continuous service in a regular
vacancy in such employment he would
come within the ambit of definition of
'Government servant' for the purpose of
these Rules. Such person need not be
regularly appointed but must have put in
three years continuous service in a regular
vacancy. The Rules no where provide the
specific categories of persons who can
avail benefit of the Rules. The provision
in the Rules are applicable to such
persons who may be covered within the
definition of 'Government servant' as
defined in Rule 2(a). Therefore, in order
to be covered under the definition of '
Government servant' for the purpose of
these
Rules
the
conditions
as
contemplated therein have to be satisfied.
The G.O. dated 26.10.98 states that part
time tube well operators are not entitled to
the benefit of the Rulers of 1974 in as
much as there is no provision in the said
Rules relating to part time tube well
operators. The G.O. has been issued on
the aforesaid reason alone.

12. Whether a part time tube well
operator would satisfy the conditions to
be
included
in
the
definition
of
'Government Servant' as defined in the
Rules of 1974 would depend on the facts
of the case wherein such claim is made
for taking benefit of the Rules of 1974.
The claimant would have to demonstrate
that the deceased employee satisfied the
requirements of Rule 2 (a) (iii) and
therefore was a 'Government servant' for
the purpose of these Rules. If such a test
is satisfied in a case then definitely the
benefit of the Rule of 1974 would flow to
the claimant who is dependant of a
deceased employee. The G.O. dated
26.10.98 would therefore, apply only to
those part time tube well operators who
do not qualify the test for being included
in the definition of 'Government servant'
as defined in the Rules of 1974. However,
in case any employee, may be part time
tube well operator or a daily wager or a
work charged employee, satisfies the
conditions as inumerated in Rule 2
(a)(i)(ii) and (iii) then he would be a
'Government servant' for the purposes of
these Rules.

13. Taking the present case it is not
disputed that the petitioner's father was
appointed in 1987 and he continued to
work continuously till he died on 20.8.99.
The appointment of the petitioner's father
was initially for a period of three years on
being selected by a Selection Committee.
The said appointment was then converted
and he was appointed as tube well
assistant in 1992 also for three years. He
continued to work and was paid his salary
regularly and there was no break in his
service. This fact is also not denied by the
respondents. The fact that the respondents
required the services of the petitioner's
father continuously since 1987 to 1999 is
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
840
indicative of the fact that the requirement
was of a perpetual and regular nature. It is
not the case of the respondents that the
work of tube well operators no more
exists. It has also not been pleaded that
such tube well operators are no more
required. On a vacancy which may occur
of a part time tube well operator the tube
well still has to be operated, therefore, the
nature of work is existing day to day and
the respondents have taken the services of
the petitioner's father due to existence of
work since 1987 continuously. During
this period of nearly 12 years the salary
has been disbursed by the respondents
month to month. The nature of work
required
to
be
performed
by
the
petitioner's father was of a regular nature
as is apparent from a reading of the
appointment letter dated 20.5.92 wherein
the duties of the petitioner have been
prescribed. It is also not disputed by the
learned Standing Counsel that the part
time tube well operators are being paid
the same salary as regularly appointed
tube well operators on the principle of
'equal pay for equal work.' The duties,
qualifications and hours of working of
part time tube well operators and regular
tube well operators are identical has been
held by this court and the Hon'ble
Supreme Court in SLP © No.16219 of
1994 decided on 22.3.1995.

14. For the aforesaid reasons and the
facts of this case it is concluded that the
Government Order dated 26.10.1998
would not be applicable in the present
case in as much as the petitioner's father
would come under the definition of
'Government Servant' as defined under
Rule 2(a) (iii) of the Rules for the purpose
of appointment of his dependants on
compassionate grounds.

15. Consequently the writ petition
deserves to be allowed. The impugned
orders dated 25.1.2000 and 29.1.2000
passed by the respondent no.2 and no.3
respectively are quashed. The matter is
remitted back to the respondent no.2 to reconsider the petitioner's application dated
29.12.99 under the Dying in Harness
Rules 1974. The respondent no.2 will take
a decision on the same after giving full
opportunity to the petitioner within three
months from the date of a certified copy
of this order is produced before him.

16. The writ petition is allowed. No
order is passed as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2005

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE RAJES KUMAR, J.

Income Tax Reference No. 127 of 1993

The
Commissioner
of
Income
Tax
(Central), Kanpur

...Applicant
Versus
M/s Pateshwari Electrical & Associated
Industries (Pvt.) Ltd., Gonda ...Respondent

Counsel for the Applicant:
Sri Shambhe Chopra
S.C.

Counsel for the Respondent:

Income Tax Act 1961-Section 256 (2)-
Income from leasing of Balrampur lodge
to S.B.I.-receipts from workshop, Cold
Storage Motor garage, Raj Oil Pump of
Development Division whether should be
taxed under head of business income or
the income from other sources?-heldshould
be
taxed
as
income
from