# ESC 454, Sanjai Kumar v. Dy. Director

- **Citation:** (2008) 2 ILRA 666
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-06-30
- **Case number:** Civil Misc. Writ Petition No. 40244 of 2002
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/esc-454-sanjai-kumar-v-dy-director-41096
- **Pages:** 4

## Headnote

U.P. Dying in Harness Rules, 1974-Rule-2
(a) (ii) Government Servant-petitioner's
husband working as DOM on Daily wages
basis-since 1984 Died in harness in the
year
2000-petitioner
was
given
appointment on Daily Wager Basis-she
claimed to be regular employee and the
other
salary
benefits
like
regular
employees-Nagar Nigam is within the
meaning of State-No attempt made to
get
the
Post
of
DOM
sanctionedconsidering long term of regular need
and nature of work-can not be treated as
Daily wages-compassionate appointee
always
treated
to
be
substantive
appointee from the date of her initial
appointment.

Held: Para 11 & 12

This Court is of the opinion that an
appointment made under the Dying in
Harness Rules is permanent in character,
that is to say, a substantive appointment
and that the appointment cannot be
treated as a temporary appointment or
an appointment on a daily rated basis as
held by a division bench of this Court in
1999 (3)UPLBEC2263, Ravi Karan Singh
vs. State of U.P. and others and 2002 (3)
ESC 454, Sanjai Kumar vs. Dy. Director
General
(NCC)
Directorate,
U.P.,
Lucknow and others.

In view of the aforesaid, the writ petition
is allowed. A writ of mandamus is issued
directing the respondents to treat the
petitioner as having been appointed in a
substantive capacity under the Dying in
Harness
Rules.
The
petitioner
is
consequently entitled to be treated as a
regular employee of the Nagar Nigam
and is entitled to the pay given to a
regular employee from the initial date of
her appointment. The arrears of salary
would be calculated by the respondents
and shall be paid to the petitioner within
three months from the date of the
production of a certified copy of this
order.
Case law discussed:
2003(1) Selected Allahabad Cases 122,
2002
(1)
UPLBEC
337,
1999
(3)UPLBEC2263, 2002 (3) ESC 454

## Text

666 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

9. Accordingly, by virtue of
explanation added by U.P., Order II Rule
2, C.P.C. itself is not applicable to the
facts of the instant case.

10. Revisional Court also clarified
observation of trial court, which had been
made against the plaintiff, who was
respondent in the revision. By virtue of
Order XLI Rule 33, C.P.C., it was quite
permissible and in my opinion the
clarification given by the revisional court
was quite just and warranted.

11. Accordingly, there is no merit in
the writ petition, hence it is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.06.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 40244 of 2002

Smt. Janki Devi

...Petitioner
Versus
Nagar Nigam Allahabad and another

...Respondents

Counsel for the Petitioner:
Sri A.P. Tewari

Counsel for the Respondents:
Sri S.D. Kautilya

U.P. Dying in Harness Rules, 1974-Rule-2
(a) (ii) Government Servant-petitioner's
husband working as DOM on Daily wages
basis-since 1984 Died in harness in the
year
2000-petitioner
was
given
appointment on Daily Wager Basis-she
claimed to be regular employee and the
other
salary
benefits
like
regular
employees-Nagar Nigam is within the
meaning of State-No attempt made to
get
the
Post
of
DOM
sanctionedconsidering long term of regular need
and nature of work-can not be treated as
Daily wages-compassionate appointee
always
treated
to
be
substantive
appointee from the date of her initial
appointment.

Held: Para 11 & 12

This Court is of the opinion that an
appointment made under the Dying in
Harness Rules is permanent in character,
that is to say, a substantive appointment
and that the appointment cannot be
treated as a temporary appointment or
an appointment on a daily rated basis as
held by a division bench of this Court in
1999 (3)UPLBEC2263, Ravi Karan Singh
vs. State of U.P. and others and 2002 (3)
ESC 454, Sanjai Kumar vs. Dy. Director
General
(NCC)
Directorate,
U.P.,
Lucknow and others.

In view of the aforesaid, the writ petition
is allowed. A writ of mandamus is issued
directing the respondents to treat the
petitioner as having been appointed in a
substantive capacity under the Dying in
Harness
Rules.
The
petitioner
is
consequently entitled to be treated as a
regular employee of the Nagar Nigam
and is entitled to the pay given to a
regular employee from the initial date of
her appointment. The arrears of salary
would be calculated by the respondents
and shall be paid to the petitioner within
three months from the date of the
production of a certified copy of this
order.
Case law discussed:
2003(1) Selected Allahabad Cases 122,
2002
(1)
UPLBEC
337,
1999
(3)UPLBEC2263, 2002 (3) ESC 454

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri A.P. Tewari, the
learned counsel for the petitioner. List has
been revised. The learned counsel for the
respondents is not present.
2 All] Smt. Janki Devi V. Nagar Nigam, Allahabad and another
667
2. It transpires that the petitioner's
husband was appointed as a 'DOM' on
4.12.1987 to work in the electric
crematorium managed by the respondents
in Daragranj at Allahabad. It is alleged
that the petitioner's husband worked
continuously
on
that
post
at
that
crematorium and died in harness on
13.9.2000.

3. Upon the death of the husband,
the petitioner applied for an appointment
under the Dying in Harness Rules, 1974.
The Mukhya Nagar, Adhikari issued a
letter dated 18.10.2000 recommending the
appointment of the petitioner to work as a
'DOM'. It is alleged that based on the
aforesaid recommendation, the petitioner
was appointed and started working w.e.f.
22.12.2001. No formal appointment letter
was issued but was paid the salary
through cheques and that her name finds
place in the muster roll of the employees
of the Nagar Nigam, Allahabad.

4. The petitioner alleges that even
though she is still working as a DOM, in
the electric crematorium, she is being
treated by the authority as a daily rated
employee and is not being treated as a
regular employee. The petitioner contends
that an appointment under the Dying in
Harness Rules is made in a substantive
capacity on a permanent basis and that
the petitioner cannot be treated as a daily
rated
employee.
The
petitioner,
consequently
filed
the
present
writ
petition praying that a writ of mandamus
be issued to the respondents to treat the
petitioner as having been appointed under
the Dying in Harness Rules and that the
respondents should treat the petitioner as
a regular employee and pay salary of a
regular employee month by month.

5. The respondents have filed a
counter
affidavit
alleging
that
the
petitioner's husband was working on a
"temporary daily wage basis" and that the
petitioner's husband was not appointed in
a permanent capacity nor was working on
a vacancy in view of the fact that no post
of DOM was created or sanctioned by the
State
Government
and
therefore,
engagement were made by the Nagar
Nigam on a daily rated basis. The
respondents contends that the Dying in
Harness
Rules,
1974
contemplates
appointment of a dependent of the
deceased on compassionate ground only
where an employee was appointed in a
permanent capacity as defined under Rule
2(a)
of
the
Rules
of
1974.
The
respondents contended that since the
petitioner's husband was not appointed in
accordance with the provision of Rule
2(a) of the Rules of 1974, the benefit of
appointment on compassionate ground
under the said Rules cannot be given.

6. Having hearing the learned
counsels' for the parties and having
perused the writ petition and the counter
affidavit, this Court finds that the writ
petition is liable to be allowed and a writ
of mandamus is liable to be issued.

7. From the counter affidavit, it is
clear that upon the construction of the
electric crematorium at Daraganj in the
city of Allahabad, no post of DOM was
created by the Nagar Nigam, Allahabad
and that the work of a DOM was taken by
the engagement of persons on daily rated
basis. The affidavits reveals that the
petitioner's husband was appointed in the
year 1987 as a DOM and that he worked
continuously till he died in the year 2000.
The
Nagar
Nigam,
which
is
an
instrumentality of the State, was required
668 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
to create a post. No such effort was made
by the respondents to create a post and the
respondents allowed the petitioner to
work continuously on a daily rated basis.
The affidavits reveals that the work which
the petitioner's husband was performing,
was a work which was of a permanent
nature and which is still continuing as on
date. Therefore it cannot be alleged that
the
employment
of
the
petitioner's
husband was on a temporary basis on
account of exigency of service. The
appointment of the petitioner's husband
was of a permanent character and that the
appointment of the petitioner on a daily
rated basis was made for the simple
reason that there was no sanctioned post
of DOM, for which the petitioner's
husband was not at fault and that the
Nagar Nigam, Allahabad alone was at
fault. Consequently, the mere fact that the
petitioner's husband was working on a
daily rated basis becomes immaterial
since the work, which he was performing,
was permanent in character.

8. The U.P. Recruitment of
Dependents of Government Servants
Dying-in-Harness Rules, 1974 provides
rules
regulating
the
recruitment
of
dependent of government servants dying
in
harness
Rule
2(a)
defines
a
Government Servant as under:-

"(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."

The said rule has been explained
through various judgments.

9. In Sunil Kumar vs. State of U.P.
and others, 2003(1) Selected Allahabad
Cases 122, it was held that a daily rated
employee having worked for more than
thirteen years, was deemed to be
government servant, as defined under
Rule 2(a) of the Rules of 1974. Similar
view was again held in the decision of
Santosh Kumar Mishra vs. State of
U.P. and others, 2002 (1) UPLBEC 337.

10. In writ petition No.51469 of
2005, Vijay Kumar Yadav vs. State of
U.P. and others decided on 25.7.2005,
this Court held, that where a person had
worked for more than three years as a part
time Tube-well Operator on a temporary
post, he was deemed to work on a. regular
vacancy and was therefore entitled to be
treated as Government servant.

11. In view of the aforesaid, this
Court is of the opinion that the petitioner's
husband having worked continuously for
more than thirteen years which was
permanent
in
character,
was
a
Government servant as defined under
Rule 2(a) of the Rules of 1974.
Consequently,
upon
his
death,
the
petitioner, being a widow and dependent
on her husband, was entitled for an
appointment on compassionate ground.
The recommendation of the Nagar Nigam
as disclosed in Annexure No.4 to the writ
petition reveals that the petitioner was
appointed under the Dying in Harness
Rules. This Court is of the opinion that an
appointment made under the Dying in
Harness Rules is permanent in character,
2 All] Smt. Bindu Singh V. State of U.P. and others
669
that is to say, a substantive appointment
and that the appointment cannot be treated
as a temporary appointment or an
appointment on a daily rated basis as held
by a division bench of this Court in 1999
(3)UPLBEC2263, Ravi Karan Singh vs.
State of U.P. and others and 2002 (3)
ESC 454, Sanjai Kumar vs. Dy.
Director General (NCC) Directorate,
U.P., Lucknow and others.

12. In view of the aforesaid, the writ
petition is allowed. A writ of mandamus is
issued directing the respondents to treat
the petitioner as having been appointed in
a substantive capacity under the Dying in
Harness
Rules.
The
petitioner
is
consequently entitled to be treated as a
regular employee of the Nagar Nigam and
is entitled to the pay given to a regular
employee from the initial date of her
appointment. The arrears of salary would
be calculated by the respondents and
shall be paid to the petitioner within three
months from the date of the production of
a certified copy of this order.

13. It is made clear that even if the
post has not been sanctioned, the
respondents are still required to pay the
salary to the petitioner as payable to a
regular employee and take immediate
steps with the State Government for the
creation of the post of DOM which is of a
permanent character.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2008

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.42381 of 2006

Smt. Bindu Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Purwar
Sri Jamil Ali
Sri V.S. Parmar

Counsel for the Respondents:
Sri C.B. Yadav
S.C.

Constitution of India, Art. 226-readwith
Stamp duty Act-Demand of additional
stamp value with penalty-on ground the
petitioner had raised/occupied much
excess area than the area given in sale
deed-held-totally
perverse
andmisconceived-stamp duty paid strict in
accordance
with
the
valuation
of
property mentioned in sale deed-found
sufficient-authority committed mistakes
apparent on the face of record-if excess
land occupied by the purchaser the same
could be taken back by the actual ownerbut the authorities have no role to playimpugned order quashed.

Held: Para 4

Under law, the stamp duty is leviable
only for value of the portion for which
the deed is executed. If any additional
area is occupied, legally or illegally by
the petitioner, the concerned authority
or person may take appropriate action
for getting back possession of such
portion which has not been purchased by
the petitioner. However, the stamp duty
on such portion, which has not been