# Manager, Uttaranchal Jal Sansthan v. Laxmi Devi (Supra), we answer the

- **Citation:** (2010) 3 ILRA 1099
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-09-22
- **Case number:** Civil Misc. Writ Petition No.15505 of 2005
- **Bench:** R.K. Agrawal, Sunil Ambwani, K.N. Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manager-uttaranchal-jal-sansthan-v-laxmi-devi-supra-we-answer-the-41730
- **Pages:** 18

## Headnote

Sri M.C.Chaturvedi, C.S.C.
Dr. Y.K.Srivastava S.C.

U.P. Recruitment of Dependents of
Govt.
Servent
(Dyeing
in
Harness)
Rules,
1974-Rule
5-Compassionate
appointment-petitioner are dependent
of work charge permanent muster Roll -
employee-died
in
harness
after
completing 10 to 27 years servicewhether the benefit of compassionate
appointment available ?-held-'No' as
they are not Govt. employees-the case
1100 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
law relied by petitioners not correctly
decided.

Held: Para 26

On the aforesaid discussion, and in view
of
the
law
laid
down
in
General
Manager, Uttaranchal Jal Sansthan Vs.
Laxmi Devi (Supra), we answer the
questions posed as follows:-

"1. A daily wager and workcharge
employee employed in connection with
the affairs of the Uttar Pradesh, who is
not
holding
any
post,
whether
substantive or temporary, and is not
appointed in any regular vacancy, even
if he was working for more than 3
years, is not a 'Government servant'
within the meaning of Rule 2 (a) of U.P.
Recruitment
of
Dependants
of
Government Servant (Dying in Harness)
Rules, 1974, and thus his dependants
on his death in harness are not entitled
to compassionate appointment under
these Rules.

## Text

_Characters 0–39,761 of 58,898. This is a partial read: ask again with offset=39761 for what follows._

3 All] Pawan Kumar Yadav V State of U.P. and others
1099

10. This period of "two years" has
been amended to read as "seven years"
and to have always been so substituted
under U.P. Act No. 24/1986. As a logical
conclusion this period of "seven years"
must also be counted from the date
section
6-A
was
introduced
i.e.
10.11.1980.

11. This Court therefore holds that
the period of limitation for exercise of
powers by the Commissioner under
Section 27(6)-A of U.P. Imposition of
Ceiling on Land Holdings Act would start
from 10.11.1980 so far as the lease and
settlements prior to the said date are
concerned and the actual date on which
the lease/settlement was granted is wholly
irrelevant.

12. There is another reason for
arriving at the same conclusion. From a
reading of sub-section 27(6)-B it will be
seen that in respect of settlement and
lease granted after 10.10.1980 the period
for exercise of suo moto powers by the
Commissioner has been provided as 5
years from the date of such settlement of
the lease or up to 10.11.1987 whichever is
later. It will therefore be seen that under
clause (b) also the Commissioner can
exercise
suo
moto
powers
up
to
10.11.1987 in respect of lease granted
after 10.11.1980 and qua which the period
of 5 years have expired after such grant.

13. For the reasons recorded above,
this Court finds that the contention raised
on behalf of the petitioner has no force.
The Commissioner could exercise his suo
moto powers within seven years from
8.11.1980 in the matter and he has rightly
done so in the facts of the present case.

14. Writ petition lacks merit and is
accordingly dismissed. Interim order, if
any, stands vacated.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2010

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE K.N. PANDEY, J.

Civil Misc. Writ Petition No.15505 of 2005

Pawan Kumar Yadav

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

Counsel for the Petitioner:
Sri S.P.Shukla
Sri S.K.Misra
Sri L.C.Srivastava
Sri Ashok Tripathi
Sri Sunil Kumar Srivastava
Sri N.K.Mishra
Sri Shashi Kant Shukla
Dr. Dharmesh Chaturvedi
Sri Bhoopendra Nath Singh
Sri K.M.Mishra
Sri Rakesh Kumar Singh
Sri K.S.Pandey
Smt. Mala Srivastava

Counsel For the Respondents:
Sri M.C.Chaturvedi, C.S.C.
Dr. Y.K.Srivastava S.C.

U.P. Recruitment of Dependents of
Govt.
Servent
(Dyeing
in
Harness)
Rules,
1974-Rule
5-Compassionate
appointment-petitioner are dependent
of work charge permanent muster Roll -
employee-died
in
harness
after
completing 10 to 27 years servicewhether the benefit of compassionate
appointment available ?-held-'No' as
they are not Govt. employees-the case
1100 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
law relied by petitioners not correctly
decided.

Held: Para 26

On the aforesaid discussion, and in view
of
the
law
laid
down
in
General
Manager, Uttaranchal Jal Sansthan Vs.
Laxmi Devi (Supra), we answer the
questions posed as follows:-

"1. A daily wager and workcharge
employee employed in connection with
the affairs of the Uttar Pradesh, who is
not
holding
any
post,
whether
substantive or temporary, and is not
appointed in any regular vacancy, even
if he was working for more than 3
years, is not a 'Government servant'
within the meaning of Rule 2 (a) of U.P.
Recruitment
of
Dependants
of
Government Servant (Dying in Harness)
Rules, 1974, and thus his dependants
on his death in harness are not entitled
to compassionate appointment under
these Rules.

2. The judgements in Smt. Pushpa Lata
Dixit Vs. Madhyamik Shiksha Parishad
and others, 1991 (18) ALR 591; Smt.
Maya Devi Vs. State of U.P. (Writ
Petition No.24231 of 1998 decided on
2.3.1998); State of U.P. Vs. Maya Devi
(Special
Appeal
No.409
of
1998);
Santosh Kumar Misra Vs. State of U.P. &
Ors., 2001 (4) ESC (Alld) 1615; and Anju
Misra Vs. General Manager, Kanpur Jal
Sansthan (2004) 1 UPLBEC 201 giving
benefit of compassionate appointment
to the dependants of daily wage and
workcharge employee have not been
correctly decided."
Case law discussed:
AIR 2003 SC 2658, (2006) 4 SCC 1, (2007) 1
SCC 408, (2007) 2 SCC 481, (2007) 6 SCC
162, (2009) 2 SCC L&S 304, AIR 1996 SC
2445, (1994) 4 SCC 138, (1996) 1 SCC 301,
(1997) 11 SCC 390, (1998) 9 SCC 485,
(1998) 5 SCC 192, (2000) 7 SCC 192, (2004)
7 SCC 265, (1998) 2 SCC 412, (2004) 12 SCC
487, (2006) 5 SCC 766

(Delivered by Hon'ble R.K. Agrawal, J.)

1. In Pawan Kumar Yadav V. State
of U.P. & Ors. the Court noticed
judgements of this Court taking divergent
views in the matter of recruitment of
dependants of government servants, dying
in harness, where the deceased employees
were either daily wagers or workcharge
employees,
who
were
not
regularly
appointed, and referred the following
questions for decision of larger bench:-

"1. Whether a daily wager and work
charge employee, employed in connection
with the affairs of Uttar Pradesh, who is
not holding any post whether substantive
or temporary is a 'Government Servant'
within the meaning of Rule 2 (a) of U.P.
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974?

2. Whether the judgement in Smt.
Pushpa Lata Dixit Vs. Madhyamik Shiksha
Parishad and others, 1991 (18) ALR 591;
Smt. Maya Devi Vs. State of U.P. (Writ
Petition No.24231 of 1998 decided on
2.3.1998); State of U.P. Vs. Maya Devi
(Special Appeal No.409 of 1998); Santosh
Kumar Misra Vs. State of U.P. & Ors.,
2001 (4) ESC (Alld) 1615; and Anju Misra
Vs.
General
Manager,
Kanpur
Jal
Sansthan (2004) 1 UPLBEC 201, giving
benefit of compassionate appointment to
the dependants of daily wager and work
charge employees, have been correctly
decided?"

2. The questions were referred by
Hon'ble Mr. Justice A.N. Ray, the then
Chief Justice on 13.5.2005 to a Bench of
three judges. A large number of writ
petitions
and
special
appeals
filed
subsequently, on the same questions were
connected, with the reference.
3 All] Pawan Kumar Yadav V State of U.P. and others
1101

3. The petitioners are represented by
Shri S.P. Shukla, Shri S.K. Misra, Shri
L.C. Srivastava, Shri Ashok Tripathi, Shri
Bikash
Kumar
Mishra,
Shri
Ashok
Tripathi, Shri Sunil Kumar Srivastava, Shri
Shashi
Kant
Shukla,
Dr.
Dharmesh
Chaturvedi, Shri Bhoopendra Nath Singh,
Shri Rakesh Kumar Singh, Shri K.M.
Misra and Shri N.K. Mishra. No other
counsel has appeared in the listed matters.
Shri M.C. Chaturvedi, Chief Standing
Counsel assisted by Dr. Y.K. Srivastava,
Standing Counsel appeared for various
departments of the State and for State of
U.P. in the special appeals.

4. Prior to 7.10.1974, recruitment of
dependants of government servant dying in
harness
was
regulated
by
several
Government Orders and departmental
instructions. The Government of U.P.
Notified
the
U.P.
Recruitment
of
Dependants
of
Government
Servant
(Dying in Harness) Rules, 1974 (In short
the Rules of 1974) under the proviso to
Art.309 of the Constitution of India on 7th
October, 1974. The framing of these
statutory Rules of 1974, had the effect of
the
Rules
prevailing
over
all
the
Government Orders/ Circulars/ Letters,
which have after the framing of Rules, no
force of law.

5. Rule 2 provides definition of
'Government Servant', which has been
defined in Clause (a) thereof to mean:-

"(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,
has put in three years' continuous service in
regular vacancy, in such employment.

Explanation- "Regularly appointed"
means appointed in accordance with the
procedure laid down for recruitment to the
post or service, as the case may be;"

Rule 3 provides, that the Rules would
be applied to recruitment of dependents of
the deceased government servants to
public services and posts in connection
with the affairs of State of Uttar Pradesh.
Rule 4 provides for a non-obstante clause
stating that the same shall have effect
notwithstanding anything to the contrary
contained in any rules, regulations or
orders in force at the commencement
thereof.

Rule 5 provides for recruitment to a
member of the family of the deceased 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
1102 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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
educational
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.

(2) As far as possible, such an
employment should be given in the same
department
in
which
the
deceased
Government servant was employed prior to
his death."

6. The object of appointment on
compassionate ground to the dependent of
the deceased government servant dying in
harness has been subject matter of
consideration by the Supreme Court in
various cases.

(a) In Umesh Kumar Nagpal vs. State
of Haryana, (1994) 4 SCC 138 the
Supreme Court held:-

"The
compassionate
employment
cannot be granted after a lapse of a
reasonable period which must be specified
in the Rules. The consideration for such
employment is not a vested right which can
be exercised at any time in future. The
object being to enable the family to get
over the financial crisis which it faces at
the time of the death of the sole
breadwinner,
the
compassionate
employment cannot be claimed and offered
whatever the lapse of time and after the
crisis is over." (Para 6)

(b) In the case of Jagdish Prasad vs.
State of Bihar, (1996) 1 SCC 301, the
Supreme Court observed:-

"The very object of appointment of a
dependent of the deceased employees who
die-in-harness is to relieve unexpected
immediate hardship and distress caused to
the family by sudden demise of the earning
member of the family." (Para 3)

(c) In MMTC Ltd. vs. Pramoda Dei.
(1997) 11 SCC 390, it is observed by the
Supreme Court:-

"As pointed out by this Court, the
object of compassionate appointment is to
enable the penurious family of the
deceased employee to tide over the sudden
financial crisis and not to provide
employment, and that mere death of an
employee does not entitle his family to
compassionate appointment." (Para 4)

(d) In the case of S. Mohan vs.
Government of T.N., (1998) 9 SCC 485,
the court stated that :-

"The object being to enable the family
to get over the financial crisis which it
faces at the time of the death of the sole
3 All] Pawan Kumar Yadav V State of U.P. and others
1103
breadwinner,
the
compassionate
employment cannot be claimed and offered
whatever the lapse of time and after the
crisis is over." (Para 4)

(e) This court has observed in
Director of Education (Secondary) v.
Pushpendra Kumar, (1998) 5 SCC 192:-

"The object underlying a provision for
grant of compassionate employment is to
enable the family of the deceased employee
to tide over the sudden crisis resulting due
to death of the bread-earner which has left
the family in penury and without any
means
of
livelihood.
Out
of
pure
humanitarian consideration and having
regard to the fact that unless some source
of livelihood is provided, the family would
not be able to make both ends meet, a
provision is made for giving gainful
appointment to one of the dependants of
the deceased who may be eligible for such
appointment. Such a provision makes a
departure from the general provisions
providing for appointment on the post by
following a particular procedure. Since
such a provision enables appointment
being made without following the said
procedure, it is in the nature of an
exception to the general provisions. An
exception cannot subsume the main
provision to which it is an exception and
thereby nullify the main provision by
taking away completely the right conferred
by the main provision. Care has, therefore,
to be taken that a provision for grant of
compassionate employment, which is in the
nature of an exception to the general
provisions, does not unduly interfere with
the right of other persons who are eligible
for appointment to seek employment
against the post which would have been
available to them, but for the provision
enabling appointment being made on
compassionate grounds of the dependant
of a deceased employee. In Umesh Kumar
Nagpal v. State of Haryana this Court has
taken note of the object underlying the
Rules providing for appointment on
compassionate grounds and has held that
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." (Para 8)

(f) In the case of Sanjay Kumar v.
State of Bihar, (2000) 7 SCC 192, the court
stated:-

"This Court has held in a number of
cases that compassionate appointment is
intended to enable the family of the
deceased employee to tide over sudden
crisis resulting due to death of the
breadearner who had left the family in
penury and without any means of
livelihood." (Para 3)

(g) In the case of Punjab National
Bank v. Ashwini Kumar Taneja, (2004) 7
SCC 265, it was observed by the court
that:-

"It is to be seen that the appointment on
compassionate ground is not a source of
recruitment but merely an exception to the
requirement regarding appointments being
made on open invitation of application on
merits. Basic intention is that on the death
of the employee concerned his family is not
deprived of the means of livelihood. The
object is to enable the family to get over
sudden financial crisis." (Para 4)
1104 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

(h) In the case of State of U.P. vs.
Paras Nath, (1998) 2 SCC 412, the court
has held that :-

"The
purpose
of
providing
employment
to
a
dependant
of
a
Government servant dying-in-harness in
preference to anybody else, is to mitigate
the hardship caused to the family of the
employee on account of his unexpected
death while still in service. To alleviate the
distress of the family, such appointments
are permissible on compassionate grounds
provided there are Rules providing for
such appointment. The purpose is to
provide immediate financial assistance to
the family of a deceased Government
servant. None of these considerations can
operate when the application is made after
a long period of time such as seventeen
years in the present case." (Para 5)

(i)
In
the
case
of
National
Hydroelectric Power Corpn. vs. Nanak
Chand, (2004) 12 SCC 487, the court has
stated that :-

"It is to be seen that the appointment
on compassionate ground is not a source
of recruitment but merely an exception to
the requirement regarding appointments
being
made
on
open
invitation
of
application on merits. Basic intention is
that on the death of the employee
concerned his family is not deprived of the
means of livelihood. The object is to enable
the family to get over sudden financial
crises." (Para 5)

(j) In the case of State of J. and K. vs.
Sajad Ahmed Mir, (2006) 5 SCC 766, the
court has held that :-

"Normally, an employment in the
Government or other public sectors should
be open to all eligible candidates who can
come forward to apply and compete with
each other. It is in consonance with Article
14 of the Constitution. On the basis of
competitive merits, an appointment should
be made to public office. This general rule
should not be departed from except where
compelling circumstances demand, such
as, death of the sole breadwinner and
likelihood of the family suffering because
of the setback. Once it is proved that in
spite of the death of the breadwinner, the
family survived and substantial period is
over, there is no necessity to say
"goodbye"
to
the
normal
rule
of
appointment and to show favour to one at
the cost of the interests of several others
ignoring the mandate of Article 14 of the
Constitution." (Para 11)

7. The recruitment under the Rules of
1974 to the dependants of an employee
dying in harness is confined to the
dependants of the deceased 'Government
servant'. A Government servant defined
under Rule 2 (a) means a Government
servant employed in connection with the
affairs of Uttar Pradesh. The nature of
employment is clarified under the Rules (i)
either permanent; (ii) though temporary,
had been regularly appointed in such
employment or; (iii) though not regularly
appointed, has put in 3 years continuous
service in regular vacancy in such
employment. The explanation appended to
Clause (a) explains that the words
'regularly appointed' means, appointed in
accordance with the procedure laid down
for recruitment to the post or service as the
case may be. There is no difficulty in
ascertaining the nature of employment for
which the Rules are applicable, if the
Government servant was permanent. The
difficulty also does not arise, where the
nature of employment is temporary and the
3 All] Pawan Kumar Yadav V State of U.P. and others
1105
person has been regularly appointed in
such employment. The words 'regularly
appointed' have been explained to mean
the appointment in accordance with the
procedure of recruitment for the post or
service. The difficulty arises, where a
person has not been regularly appointed,
but has put in 3 years' continuous service
in regular vacancy. The word 'regular
vacancy' in such employment is not
defined under the Rules.

8. In order to find out the nature of
employment of the persons through whom
the petitioners are claiming compassionate
appointment, it is necessary to set out the
facts in respect of cases in which the
counsels appeared and pressed their
claims.

9 (a). In Pawan Kumar Yadav Vs.
State of U.P., Writ Petition No.15505 of
2005, Shri Raja Ram Yadav was appointed
as daily waged Class-IV employee in the
Forest Department at Mirzapur in the year
1983. He died on 31.10.1997, after serving
for 14 years as daily waged employee
leaving behind his widow and four sons
including Pawan Kumar Yadav (the
petitioner) and one daughter. They were
alleged to be solely dependent upon him.
The petitioner applied for compassionate
appointment under the Rules of 1974 on
14.6.1998. In the counter affidavit of Shri
R.K. Tripathi, Forest Ranger, Forest
Division it is stated that the petitioner's
father late Shri Raja Ram Yadav was
working as daily wager on the post of
Gateman.
He
was
not
permanent
employee and that since the petitioner's
father did not come within the definition of
government servant under the Rules of
1974, he was not entitled to appointment.
In para 16 it is denied that the petitioner's
father had continuously worked from 1983
upto 1997.

(b) In Writ Petition No.59778 of
2006 , Surendra Singh Vs. State of U.P. &
Ors., the petitioner's father Satya Narain
Singh was initially appointed on the post of
Part Time Tube Well Operator in the
Irrigation Department in the year 1990 till
18.5.1999. He was getting the same pay
scale and other emoluments as of regular
Tube Well Operators with deductions of
general provident fund. He was liable to be
regularised but unfortunately the order of
regularisation was not made. With the 73rd
Amendment to the Constitution of India all
Tube
Well
Operators
under
the
Government Order dated 1.7.1999 working
in the eight Department of the Government
including regular or part time Tube Well
Operators were designated as Multi
Purpose
Panchayat
Workers.
The
petitioner's father was issued letter on
18.5.1999 relieving him from the duties of
Tube Well Operator and was placed under
the Gram Panchayat. He was working as
Gram Panchayat Vikas Adhikari and
Secretary of Various Village Panchayats in
District Deoria till he died in harness on
21.6.2006. The petitioner's mother made an
application
for
appointment
on
compassionate grounds on 24.7.2006,
which was rejected on 29.7.2006 on the
ground that the petitioner's father was
serving as Part Time Tube Well Operator
and was not a government servant as
defined for claiming appointment on
compassionate grounds under the Rules of
1974.

(c) In Smt. Chanda Devi Vs. State of
U.P. & Ors., Writ Petition No.9500 of
2006, late Shri Tej Bahadur Singh was
appointed as Meth on permanent muster
roll in Public Works Department under
1106 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the Executive Engineer, PWD, Allahabad
on 28.5.1990. He died in harness after
completing 9 years and 9 months of
service on 1.3.2000. The petitioner applied
for
compassionate
appointment
on
8.5.2000, as his widow. The Writ Petition
No.2743 of 2004 was finally disposed of
on 22.2.2005 to consider the representation
within one month. The representation was
decided on 21.4.2005 stating that total
length of service of Shri Tej Bahadur
Singh was 9 years and 9 months, and
hence she could not be appointed. The
petitioner filed second Writ Petition
No.50984 of 2005, which was allowed by
this Court in the same terms as in the case
of Km. Suman Kumari (Writ Petition
No.21622 of 2004). In Suman Kumari, the
petitioner was claiming compassionate
appointment on the death of her mother
Smt.
Kewal,
who
was
also
given
compassionate appointment on the death of
her husband. The facts of the case of Km.
Suman Kumari were entirely different than
the case of Smt. Chanda Devi. The
Superintending
Engineer,
Allahabad
Circle, PWD, Allahabad again rejected the
application of Chanda Devi on 19.1.2006
on the ground that her husband was
working on permanent muster roll with
only 9 years and 9 months service to his
credit and thus she was not entitled to
compassionate appointment.

(d) In Smt. Manvasi Devi @ Shanti
Devi Vs. State of U.P. & Ors., Writ
Petition No.44470 of 2006 Shri Raj Jeet
Yadav was engaged as daily waged
Beldar
(Cook)
in
the
Irrigation
Department on 1.8.1983. His name was
included at Sl.No.24 in the seniority list
issued in the year 1998. He was given
workcharge employment in the office of
Executive
Engineer,
Sharda
Sahayak
Khand-39,
Irrigation
Department,
Allahabad on 19.6.1998. A Writ Petition
No.13746 of 2001 was filed by him to
regularise his services and was disposed of
to consider his representation. His claim
was rejected on 21.6.2002 on the ground
that he was working as workcharge
employee since 19.6.1998. He died on
12.12.2005. The representation made by
the petitioner on 2.12.2005 was not
considered on 21.6.2002 on the ground that
the
deceased
was
daily
wager
in
workcharge establishment.

(e) In Ravi Srivastava Vs. State of
U.P. & Ors., Writ Petition No.68880 of
2006, the petitioner's father Shri Sudhir
Kumar Srivastava was appointed as
Chowkidar on daily wages on 25.3.1985
in the office of Executive Engineer,
Construction Division-II, PWD, Kanpur
Nagar and continued to work in the same
capacity upto 25.3.1987. Thereafter he
worked from 26.9.1987 to 25.9.1988 as
Meth at Police Station Gajner. His father,
thereafter, worked as Meth at Primary
Health Centre, Makrandpur, Kanpur
Nagar as muster roll daily waged employee
w.e.f. 26.9.1988. He became permanent
muster roll employee at Sl.No.9 w.e.f.
1.6.1989 upto his death on 15.10.2006.
The petitioner Shri Ravi Srivastava applied
for
compassionate
appointment
on
1.11.2006,
which
was
rejected
on
14.11.2006 on the ground that by
Government Order dated 29.1.2003 the
provisions for compassionate appointment
of the dependants of daily wagers/
workcharge establishment employees has
been stopped.

(f) In Guddu Musleem Vs. State of
U.P. & Ors., Writ Petition No.28559 of
2006, the petitioner's father was working
as work charge employee 'Beldar' in the
office of Nirman Khand-1, Public
3 All] Pawan Kumar Yadav V State of U.P. and others
1107
Works Department since 26.3.1987. He
was not regularised upto his death on
8.6.2003 leaving behind four members in
the family. The petitioner applied for
compassionate
appointment
dated
12.9.2003 was not considered on the
ground of letter of Government of Uttar
Pradesh dated 29.1.2003 by which the
compassionate
appointment
of
daily
wager/
work
charge
employee
was
stopped. The Executive Engineer, Nirman
Khand-1, PWD, Varanasi by letter dated
13.3.2006 rejected the application in
pursuance to the directions of this Court
dated 25.2.2006 in Writ Petition No.7308
of 2006 on the ground that by Government
Order dated 29.1.2003 the compassionate
appointment was not to be considered for
the
dependants
of
daily
wagers/
workcharge employee.

(g) In Rama Shanker Singh Vs. State
of U.P. & Ors., Writ Petition No.57072 of
2006 the petitioner's father died in harness
working as Seasonal Collection Peon. He
was employed on seasonal basis from
February 1976 to 29.8.2005. It is stated
that since 7.2.1981 upto the date of his
death on 29.8.2005 he was working
without
any
break.
The
petitioner's
application
dated
15.9.2005
and
12.12.2005 for compassionate appointment
was rejected on 11.3.1997 in pursuance to
the order of this Court dated 19.5.2006 in
Writ Petition NO.27893 of 2006 on the
ground that his father was appointed on
seasonal basis. He was not working on any
regular post on temporary basis and thus
his continuance if for more than 3 years
did not entitle the petitioner's appointment
on compassionate grounds.

(h) In Smt. Kusama Devi Vs. State of
U.P. & Ors., Writ Petition No.45697 of
2006, the petitioner's husband was engaged
as Meth on daily wage in Public Works
Department on 26.5.1985. He was
appointed on the same post in work charge
on 1.7.1999 and died on 3.5.2006. Her
application for compassionate appointment
was rejected on 26.5.2006 on the ground
that
in
temporary
work
charge
establishment there is no provision for
appointment of the dependants of the
employees
dying
in
harness
on
compassionate grounds.

(i) In Smt. Shyama Devi Vs. State of
U.P. & Ors., Writ Petition No.7687 of
2010, the petitioner's husband Shri Har
Dayal was employed as muster roll
employee as Peon in the office of the
Executive
Engineer,
Awas
Vikas
Parishad, Bareilly on 16.3.1985. He died
while serving as muster roll employee on
1.7.2007.

(j) In Smt. Sunita Devi Vs. State of
U.P., Writ Petition No.2789 of 2010, the
petitioner's husband Shri Shyama Charan
was employed as part time Tube Well
Operator on 9.4.1991. He was posted at
Village Musapur, Distt. Bareilly. The
Government proposed to regularise the
services of all Part Time Tube Well
Operators appointed prior to 30.6.1998
under the Part Time Tube Well Operators
Regularisation (First Amendment) Rules,
2008. The petitioner's husband was entitled
to regularisation. He, however, died on
20.12.2007 in a road accident leaving
behind the petitioner and two daughters.
Her
application
for
compassionate
appointment was considered in pursuance
to the direction issued by this Court dated
27.7.2009 in Writ Petition No.37012 of
2009 on the ground that her husband was
not
government
servant
within
the
meaning of Rules of 1974. The deceased
Government Servant was appointed as Part
1108 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Time Tube Well Operator on 9.8.1991 on
honorarium of Rs.299/- for 3 years for
working on 2 1⁄2 hours. He was not holding
any post nor were regularly appointed in
any
vacancy
to
be
considered
as
government servant.

It is relevant to state here that in
pursuance to the judgement of this Court in
Suresh Chandra Tiwari & Ors. Vs. State of
U.P. & Ors., Writ Petition No.3558 (SS) of
1992 dated 16.8.1994 followed in Uma
Shankar Yadav Vs. State of U.P., Writ
Petition No.30228 of 1993, decided on
26.9.1995 and against which special leave
petition filed by the State of U.P. in State
of U.P. Vs. Mangra Prasad Verma was
dismissed on 22.3.1995 and the review
petition was also dismissed on 19.10.1995,
the State Government framed Rules under
the Proviso to Art.309 of the Constitution
of India: U.P. Regulation of Part Time
Tube Well Operators Rules, 1996. The
Rules were amended by First Amendment
in 2008 on 5.5.2008 providing that persons
working on 30th June, 1998 or prior to that
date on part time Tube Well Operator and
were serving regularly on the enforcement
of the First Amendment Rules will be
considered for regularisation, if he is
eligible after considering his suitability in
accordance with his service record. It is
alleged in the writ petition that the
petitioner had a right to be considered for
regularisation
under
the
Rules
in
accordance with the service book. He,
however, died before the enforcement of
the Rules on 5th May, 2008 on 30.12.2007.

(k) In Smt. Om Kanti Vs. State of
U.P. & Ors., Writ Petition No.71855 of
2009, the petitioner's husband was working
as Part Time Tube Well Operator on
26.5.1987 and was working as such, when
he died in harness on 29.6.2000 in a road
accident. Her applications dated 22.9.2000
and 7.2.2001 were considered in pursuance
to the directions issued by this Court. Her
Writ Petition No.31703 of 2001 was
dismissed on 30.4.2004. In special appeal
an order was passed on 10.7.2009 to
decide his representation, which was
rejected on 5.11.2009 on the ground that
he was not covered by Regularisation
Rules of 1996 as he was appointed on
26.5.1987, whereas the Rules of 1996
provided for cut off date as 1.10.1986.

(l) In Chandan Kumar Dubey Vs.
State of U.P., Writ Petition No.5764 of
2010, the petitioner's father was appointed
as Part Time Tube Well Operator on
21.2.1987
and
died
in
harness
on
16.3.2001. His mother made an application
for
compassionate
appointment
on
23.6.2004 and after attaining the majority
the petitioner filed an application for
compassionate appointment. He has prayed
for direction to decide his representation.

(m) In Subhash Chandra V. State of
U.P., Writ Petition No.12099 of 2010, the
petitioner's father late Shri Mehi Lal was
appointed as Beldar in Class-IV category
on daily wage basis in the Irrigation
Department.
On
1.4.1975
he
was
absorbed in permanent workcharge
establishment on 1.10.1990 and died in
harness on 7.11.2006. The petitioner
applied for compassionate appointment on
4.12.2006. He got information under the
Right to Information Act that his father
was working in regular workcharge
establishment. In Writ Petition NO.20891
of 2008, his representation was directed to
be decided by order dated 29.4.2008.

(n) In Mahipal Vs. State of U.P. &
Ors., Writ Petition No.7750 of 2010, the
petitioner's father was employed as Meth
3 All] Pawan Kumar Yadav V State of U.P. and others
1109
on
daily
wage
in
Public
Works
Department on 25.2.1986. He was shifted
in the workcharge establishment on
18.12.1999 in the office of National
Highway Branch. He died on 15.10.2009.
It is stated that juniors to the petitioner
were
regularised
on
7.1.2010.
The
petitioner's application for compassionate
appointment filed on 23.11.2009 and
reminder on 2.12.2009 were considered
and rejected on 20.12.2009 on the ground
that his father was working in the
workcharge
establishment
since
18.12.1999. There is no Government Order
giving the compassionate appointment to
the irregular workcharge employee.

(o) In State of U.P. & Ors. Vs. Zaved
Akhtar, Special Appeal No.(1170) of 2007,
the delay has been condoned on 9.1.2008.
The special appeal has to be given regular
number. In this appeal the State of U.P. is
aggrieved by the judgement of learned
Single Judge dated 28.9.2007 in Writ
Petition No.43673 of 2001 directing the
respondents to consider the claim of the
petitioner for compassionate appointment
within six weeks on the ground that the
petitioner's father was appointed for more
than 3 years continuously and it was
immaterial whether he was working in
workcharge
establishment
or
regular
establishment. The Statutes (Rules of
1974) is beneficial in nature and has to be
construed liberally. While setting aside the
orders dated 28.8.2001 and 30.8.2001 by
which the application for compassionate
appointment was rejected as petitioner's
father was working as Pump Operator in
the workcharge establishment on his
death. There is stay of the judgement by
the Division Bench, connecting the matter
with this reference on 9.1.2008.

(p) In State of U.P. & Ors. Vs.
Ramadhar Vishwakarma, Special Appeal
No.567 of 2008, the State of U.P. and the
Irrigation Department is aggrieved against
the judgement of learned Single Judge
dated 24.1.2008 in Writ Petition NO.4325
of 2008 directing the Executive Engineer,
Irrigation
Division,
Kushi
Nagar
to
reconsider the compassionate appointment
rejected
by
impugned
order
dated
29.10.2007 and to give appointment as
petitioner's father Shri Mansa Sharma had
continuously worked for 38 years in the
workcharge establishment prior to his
death. The directions have been given to
consider
him
for
compassionate
appointment within two months, if he is
otherwise eligible and qualified for the
post and shall be offered compassionate
appointment under the Rules of 1974
irrespective of the fact that his father had
worked as employee in the workcharge
establishment.

10. In the exigencies of work, the
State employs on various projects and
schemes a large number of employees on
daily wage basis. These employees do not
work against any temporary or permanent
post, or even a tenure post. They are
neither permanent nor employed on
temporary
basis
against
the
regular
vacancy. These employees do not hold any
post. The daily waged appointment is
made in the exigency of service in
accordance with the requirement of work.
In State of Haryana & Anr. Vs. Tilak
Raj & Ors., AIR 2003 SC 2658, the
Supreme Court held:-

"12. A scale of pay is attached to a
definite post and in case of a daily wager,
he holds no posts. The respondent workers
cannot be held to hold any posts to claim
even any comparison with the regular and
1110 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
permanent staff for any or all purposes
including a claim for equal pay and
allowances. To claim a relief on the basis
of equality, it is for the claimants to
substantiate
a
clear
cut
basis
of
equivalence
and
a
resultant
hostile
discrimination before becoming eligible to
claim rights on a par with the other group
vis-a-vis an alleged discrimination. No
material was placed before the High Court
as to the nature of the duties of either
categories and it is not possible to hold
that the principle of "equal pay for equal
work" is an abstract one."

11. In the Secretary, State of
Karnataka & Ors. Vs. Umadevi (3) &
Ors., (2006) 4 SCC 1 a Constitution
Bench
of
the
Supreme
Court
has
reaffirmed the law, with which the
Supreme Court had sometimes in the past
in a few cases, had taken a different view
such as State of Haryana Vs. Piare Lal,
(1992) 4 SCC 118, as follows:-

"26. With respect, why should the
State be allowed to depart from the normal
rule and indulge in temporary employment
in permanent posts? This Court, in our
view, is bound to insist on the State making
regular and proper recruitments and is
bound not to encourage or shut its eyes to
the persistent transgression of the rules of
regular recruitment. The direction to make
permanent -- the distinction between
regularization and making permanent, was
not emphasized here -- can only encourage
the State, the model employer, to flout its
own rules and would confer undue benefits
on a few at the cost of many waiting to
compete. With respect, the direction made
in paragraph 50 of Piara Singh (supra)
are to some extent inconsistent with the
conclusion in paragraph 45 therein. With
great respect, it appears to us that the last
of the directions clearly runs counter to the
constitutional
scheme
of
employment
recognized in the earlier part of the
decision. Really, it cannot be said that this
decision has laid down the law that all ad
hoc, temporary or casual employees
engaged without following the regular
recruitment procedure should be made
permanent.

31. In Ashwani Kumar and others Vs.
State of Bihar and others (1996 Supp. (10)
SCR 120), this Court was considering the
validity of confirmation of the irregularly
employed. It was stated:

"So
far
as
the
question
of
confirmation of these employees whose
entry was illegal and void, is concerned, it
is to be noted that question of confirmation
or
regularization
of
an
irregularly
appointed candidate would arise if the
candidate concerned is appointed in an
irregular manner or on ad hoc basis
against an available vacancy which is
already sanctioned. But if the initial entry
itself is unauthorized and is not against
any sanctioned vacancy, question of
regularizing the incumbent on such a nonexisting vacancy would never survive for
consideration and even if such purported
regularization or confirmation is given it
would be an exercise in futility."

37. It is not necessary to multiply
authorities on this aspect. It is only
necessary to refer to one or two of the
recent decisions in this context. In State of
U.P. vs. Niraj Awasthi and others (2006
(1) SCC 667) this Court after referring to a
number of prior decisions held that there
was no power in the State under Art. 162
of the Constitution of India to make
appointments and even if there was any
such power, no appointment could be
3 All] Pawan Kumar Yadav V State of U.P. and others
1111
made in contravention of statutory rules.
This Court also held that past alleged
regularisation or appointment does not
connote
entitlement
to
further
regularization or appointment. It was
further held that the High Court has no
jurisdiction to frame a scheme by itself or
direct the framing of a scheme for
regularization. This view was reiterated in
State of Karnataka vs. KGSD Canteen
Employees Welfare Association (JT 2006
(1) SC 84).

43. Thus, it is clear that adherence to
the rule of equality in public employment is
a basic feature of our Constitution and
since the rule of law is the core of our
Constitution, a Court would certainly be
disabled from passing an order upholding a
violation of Article 14 or in ordering the
overlooking of the need to comply with the
requirements of Article 14 read with Article
16 of the Constitution. Therefore, consistent
with the scheme for public employment, this
Court while laying down the law, has
necessarily to hold that unless the
appointment is in terms of the relevant rules
and after a proper competition among
qualified persons, the same would not
confer any right on the appointee.