# Pawan Kumar v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-23
- **Case number:** Writ A No. 5519 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-v-state-of-u-p-ors-52178
- **Pages:** 10

## Headnote

A. Service Law - UP Recruitment of
Dependants of Government Servants
Dying in Harness Rules, 1974 - Rule
2(a)(iii) - UP Regularization of Daily
Wages Appointments on Group 'D' Posts
Rules,
2001
-
Compassionate
appointment - Petitioner's mother was
engaged as Sweeper on daily-wages
and worked for 39 years - Though she
was entitled for regularization, but
could not be regularized and died
during service - Petitioner's claim was
rejected on the ground that mother was
not
regular
employee
-
Validity
challenged
-
Held,
the
case
of
petitioner's mother ought to have been
considered in the first instance under
the Rules 2001, and then, under the
Rules of 2016, if not decided under the
Rules of 2001. But, there is little scope
for the statutory Selection Committee
constituted under the Rules to think
against regularization of her services in
the face of a period of time as long as
39
years
of
daily-wage
service
-
Kuldeep Thakur's case relied upon -
High
Court
issued
mandamus
for
regularization
of
the
petitioner's
mother's services notionally and for
compassionate
appointment
of
the
petitioner on the basis of his mother's
re-determined status. (Para 16, 18, 19
and 20)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

7 All. Pawan Kumar Vs. State of U.P. & Ors.
101
the petitioner was out of service, i.e., for
the period between 9.1.2020 to 29.9.2020.

23. The Superintendent of Police,
District Deoria is directed to pay to the
petitioner his full pay and allowances for
the period 9.1.2020 to 29.9.2020 along with
simple interest calculated at the rate of 6%
per annum and also the cost of the writ
petition within a period of one month from
today.

24. The petition is allowed with
the aforesaid directions.

25. The Registrar (Compliance)
shall send a copy of this order to the
Superintendent of Police, District Deoria
within one week from today.
----------
(2024) 7 ILRA 101
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 5519 of 2023

Pawan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Ram Bali Tiwari, Advocate

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment of
Dependants of Government Servants
Dying in Harness Rules, 1974 - Rule
2(a)(iii) - UP Regularization of Daily
Wages Appointments on Group 'D' Posts
Rules,
2001
-
Compassionate
appointment - Petitioner's mother was
engaged as Sweeper on daily-wages
and worked for 39 years - Though she
was entitled for regularization, but
could not be regularized and died
during service - Petitioner's claim was
rejected on the ground that mother was
not
regular
employee
-
Validity
challenged
-
Held,
the
case
of
petitioner's mother ought to have been
considered in the first instance under
the Rules 2001, and then, under the
Rules of 2016, if not decided under the
Rules of 2001. But, there is little scope
for the statutory Selection Committee
constituted under the Rules to think
against regularization of her services in
the face of a period of time as long as
39
years
of
daily-wage
service
-
Kuldeep Thakur's case relied upon -
High
Court
issued
mandamus
for
regularization
of
the
petitioner's
mother's services notionally and for
compassionate
appointment
of
the
petitioner on the basis of his mother's
re-determined status. (Para 16, 18, 19
and 20)

Writ petition allowed. (E-1)

List of Cases cited:

1. Secretary, St. of Karn. & ors.Vs Umadevi (3)
& ors.; (2006) 4 SCC 1

2. Pawan Kumar Yadav Vs St. of U.P. & ors.;
2011 (1) AWC 1028 (FB)

3. St. of U.P. & ors.Vs Kuldeep Thakur; 2017 (2)
AWC 1523 (LB)

4. Nikhil Bharadwaj Vs St. of U.P. & ors.;
2021:AHC:118710

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order of the Divisional Forest
Officer,
Social
Forestry
&
Wildlife
Division, Pratapgarh dated 05.06.2023,
rejecting
the
petitioner's
claim
for
compassionate appointment.
102 INDIAN LAW REPORTS ALLAHABAD SERIES
2. The petitioner's mother was
engaged on daily-wages as a Sweeper by
the Establishment of the Divisional Forest
Officer,
Social
Forestry
&
Wildlife
Division, Pratapgarh, respondent No.4 (for
short, 'the Divisional Forest Officer') in the
month of November, 1984. She served as a
daily-wager continuously since the month
of November, 1984 and pursuant to a
judgment of the Supreme Court in S.L.P.
No.28317-28321 of 2010 dated 02.02.2016
placed on the minimum salary admissible
to a Class-IV employee vide order dated
06.03.2016 passed by the Divisional Forest
Officer. She was in receipt of a monthly
salary of Rs.7000/-. It appears that the State
Government on 12.09.2016 issued a
Government Order regarding regularization
of services of daily-wage employees
working in various departments of the
Government. According to the Government
Order dated 12.09.2016, the petitioner's
mother was also entitled to be regularized
in service. Acting in furtherance of the
Government Order above mentioned, the
Divisional Forest Officer took proceedings
for
regularization
of
daily-wagers
employed
in
his
Establishment
at
Pratapgarh.
He
directed
a
medical
examination of the daily-wagers to be
undertaken. The medical examination was
conducted, because the daily-wagers did
not have any proof of their age on
08.07.2022. The name of such dailywagers, who had to undergo medical
examination to determine their age, figures
in an order of 08.07.2022 passed by the
Divisional Forest Officer, which is on
record. The name of the petitioner's mother
in the said order. Before the petitioner's
mother's case for regularization could come
to fruition, she died on 27.01.2023. After
her demise, the petitioner approached the
Divisional Forest Officer requesting for an
appointment under the Uttar Pradesh
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974 (for
short, 'the Rules of 1974'). The basis of the
petitioner's
claim
was
the
penurious
condition in which the deceased employee's
family were placed, after her demise. The
petitioner moved an application for the
purpose to the Divisional Forest Officer on
22.05.2023. The deceased employee has
left behind six members in her family,
including the petitioner, all of whom are
her dependents.

3. It is the petitioner's case that he
is educationally qualified for appointment
under the Rules of 1974 as he has earned
his matriculation certificate from the U.P.
Board of High School and Intermediate
Education in the examination of 2005. The
petitioner's father put in an affidavit of 'No
Objection'
about
the
petitioner's
candidature
for
compassionate
appointment. The petitioner says that his
mother was working regularly as a dailywager since the year 1984 until her demise
on
27.01.2023
and
had
repeatedly
requested for regularization of her services
in accordance with different Government
Orders, that were issued on the subject,
directing regularization of daily-wagers,
who had worked for a very long period of
time. The petitioner's mother worked for as
long as a period of 39 years, serving as a
daily-wager and by all standards under the
Government Orders issued from time to
time she was entitled to be regularized as
the petitioner says. It is the petitioner's case
that going by the principle in Secretary,
State of Karnataka and others v.
Umadevi (3) and others, (2006) 4 SCC 1,
as a one-time measure, daily-wagers,
working for a period of 10 years or more,
were held entitled to be regularized. The
petitioner's mother's case was eminently fit
for consideration.
7 All. Pawan Kumar Vs. State of U.P. & Ors.
103
4. The petitioner prays that there is
no other breadwinner in the family and
after his mother's demise, they are plunged
in penury. He, therefore, had a case for
consideration under the Rules of 1974. By
the impugned order, the petitioner's claim
was rejected solely on the ground that
under the Rules of 1974, it is only the
dependents of regular employees, who
could be considered for appointment and
not the dependents of daily-wagers. They
were not ineligible.

5. Aggrieved, this writ petition has
been instituted.

6. A notice of motion was issued
on 01.08.2023. A counter affidavit was
filed on behalf of the respondents, to which
a rejoinder was also put in. When the
matter came up before this Court on
25.01.2024,
parties
having
exchanged
affidavits, it was admitted to hearing,
which proceeded forthwith to conclusion.
Judgment was reserved.

7. Heard Mr. Ram Bali Tiwari,
learned Counsel for the petitioner and Mr.
Prakhar Mishra, learned Additional Chief
Standing Counsel appearing on behalf of
the respondents.

8. It is argued by Mr. Ram Bali
Tiwari, learned Counsel for the petitioner
that on 08.07.2022, the Divisional Forest
Officer issued a letter regarding the
absence of age certification for the
petitioner's mother and directing her
medical examination for the purpose, along
with ten other similarly circumstanced
daily-wagers. It is submitted that the letter
dated 08.07.2022 clearly says that the
process of regularization for the petitioner's
mother and the ten other employees, whose
names figure in the said letter, is proposed
against vacant posts of Class-IV. It is also
submitted by the learned Counsel for the
petitioner that others like her in the list of
daily-wagers, to wit, Sheetla Prasad Singh
and Ram Sewak had been regularized by
the respondents while the petitioner's
mother's
case
was
ignored.
After
implementation
of
the
7th
Pay
Commission,
the
petitioner's
mother
approached this Court praying that the
minimum salary that she was drawing be
ordered to be paid in accordance with the
7th Pay Commission's recommendations.
For the purpose, she instituted Writ-A
No.335 of 2023, which was disposed of by
this Court at Lucknow with a direction that
for the purpose of being granted the
minimum pay according to the 7th Pay
Commission's
recommendations,
or
whatever grievance she has, the petitioner's
mother may make a representation to the
Divisional Forest Officer, who would pass
a reasoned and speaking order within a
period of two months from the date of
production of a copy of the order along
with a representation. It is submitted by the
learned Counsel that before the order dated
16.01.2023 could be complied with by the
Divisional Forest Officer, the petitioner's
mother passed away. After her demise, the
petitioner's father, Phool Chand moved this
Court by means of Writ-A No.5717 of
2023, seeking a mandamus directing the
Divisional Forest Officer to pay him arrears
of salary determined in accordance with
minimum pay due to his deceased wife
w.e.f. 1st April, 2018 till 27th January,
2023. This Court disposed of the said writ
petition vide order dated 08.08.2023 with a
direction to the petitioner's father to file a
fresh representation before the Divisional
Forest Officer, who was ordered to
consider and decide it within a period of
eight months from the date of production of
a certified copy of the order made in the
104 INDIAN LAW REPORTS ALLAHABAD SERIES
last mentioned writ petition. It is pointed
out that in compliance, the petitioner's
father was paid arrears of salary on account
of revision of the minimum salary payable
to the petitioner's mother, revised in terms
of the 7th Pay Commission. He was paid a
sum of Rs.6,36,551/- on this account by an
order of the Divisional Forest Officer dated
02.12.2023.

9. The thrust of the submission of
the learned Counsel for the petitioner is that
though
similarly
circumstanced
dailywagers have been regularized in the year
2011 in accordance with the Uttar Pradesh
Regularization
of
Daily
Wages
Appointments on Group 'D' Posts Rules,
2001 (for short, 'the Rules of 2001'), but the
petitioner's mother was denied that right, to
which she was legally entitled. It is also
emphasized that on 13th August, 2015, a
Government Order was issued directing
regularization of services of daily-wagers,
who were working as such and appointed
after 31st March, 1996, but the respondents
ignored the petitioner's mother's claim. In
assailing the order impugned, learned
Counsel for the petitioner submits that the
petitioner's mother being clearly entitled to
regularization and the process for her
regularization being underway when she
passed away, it is a case where the
petitioner's mother's case should, in the first
instance, be considered for regularization
with appropriate orders made and then the
petitioner's
claim
for
compassionate
appointment considered.

10. Mr. Prakhar Mishra, learned
Additional Chief Standing Counsel, on the
other hand, submits that this is an
arithmetically closed case, where on the
date of her demise, the petitioner's mother
was neither a government employee nor
appointed on a regular basis though
temporary. He further submits, relying on
Rule 2(a)(iii) of the Rules of 1974 that even
a person not regularly appointed, who has
put in three years' continuous service in a
regular vacancy, can be considered, but the
petitioner's mother was not retained against
a regular vacancy or sanctioned post, even
if it was dehors the rules. Therefore, the
petitioner's mother never qualified as a
government servant defined under Rule 2
of the Rules 1974, entitling the petitioner to
claim compassionate appointment. The
submission, therefore, is that there is
absolutely no scope for the petitioner's case
to be considered under the Rules of 1974
and the impugned order is infallible.

11. Upon hearing learned Counsel
for the parties, this Court finds that it is true
that a daily-wager, who is not appointed
against a sanctioned post and retained
dehors the rules, cannot qualify as a
government servant within the meaning of
Rule 2(a)(iii) of the Rules of 1974. This
position of the law is no longer in the realm
of doubt after the holding of the Full Bench
in Pawan Kumar Yadav v. State of U.P.
and others, 2011 (1) AWC 1028 (FB).

12. Notwithstanding the fact that
the petitioner's mother would not qualify as
a government servant going by the
provisions of Rule 2 of the Rules of 1974,
there is a clear niche carved out by a Bench
decision of this Court in State of U.P. and
others v. Kuldeep Thakur, 2017 (2)
AWC 1523 (LB). The Division Bench had
before their Lordships the claim for
compassionate appointment by the son of a
deceased daily-wager, whose case for
regularization was under consideration in
accordance with the Government Order
dated 13.08.2015, but he died before a
decision could be taken. Their Lordships of
the Division Bench were of opinion that in
7 All. Pawan Kumar Vs. State of U.P. & Ors.
105
a situation where the right to be regularized
had crystallized under a Government Order
and under consideration, but could not
fructify on account of the employee's
untimely demise, the right of the employee
to be declared regular would not get
eclipsed, abandoned or defeated. The right
of the deceased employee to be regularized
would have to be considered in the first
instance by the respondents, who would
then be obliged to take an appropriate
decision with regard to the claim of the
deceased employee's/ daily-wager's son in
the case of regularization. In Kuldeep
Thakur (supra) the remarks of the
Division Bench, which are relevant, read:

 "9. However, in the present case,
this claim has to be looked into from the
point of view that the father of the
respondent-petitioner was entitled for being
regularized in view of the terms and
conditions of the Government order dated
13.8.2015. This consideration process had
already commenced and the name of the
father of the respondent-petitioner had
already been forwarded but no decision had
been taken, and in between in October,
2015, the father of the respondentpetitioner died.

10. Learned counsel for the
respondent therefore, has pressed into
service the judgment in the case of Prem
Ram v. Managing Director, Uttarakhand
Pay Jal and Nirman Nigam, Dehradun and
others, (2015) 3 UPLBEC 1766, to urge
that the termination of the employment or
the death of the employee would not make
any difference with regard to consideration
of
regularization
in
the
above
circumstances.
We
have
examined
paragraph-9 of the said judgment where
also the employee had already retired from
service yet the Apex Court came to the
conclusion that since the tenure of the
person who was claiming such benefit had
to be regularized, then in that event the
Apex Court in view of the Articles 14 and
16 of the Constitution of India having been
violated, ruled that such benefit would also
accrue
to
the
said
claimant
and
consequently, issued direction for his
consideration though he had retired from
service. In that case similarly placed junior
employees had been regularized.

11. Applying the said analogy,
the claim of the father of the respondentpetitioner had already been forwarded and
he was very much alive when the
Government order dated 13.8.2015 was
issued. In such a situation the State
Government or its concerned department
ought to have considered the claim of the
respondent-petitioner for regularization and
then could have proceeded to determine as
to whether the respondent-petitioner was
entitled to any benefit or not. In our
opinion, the fortuitous circumstance of the
death of the father of the respondentpetitioner does not absolve the State
Government of its obligation to consider
the claim of regularization of the father of
the respondent-petitioner. There can be a
case where the consideration has been
made and the regularization accepted but
before the order reaches a man dies or his
death takes place in the near vicinity or
simultaneously with regularization. In this
situation, the claim of regularization of the
deceased-employee does not remain an
option to be ignored by the State
Government. The State Government or its
authorities are under an obligation to
consider such a claim and to award any
consequential benefits if the process has
been set into motion as has happened in the
present case. Once the father of the
respondent-petitioner is found entitled to be
regularized
as
on
the
date
of
the
Government order dated 13.8.2015, on
106 INDIAN LAW REPORTS ALLAHABAD SERIES
which date he was admittedly alive, then in
that event the claim of the respondentpetitioner can also be considered.

12. The consideration of the right
of being regularized by operation of law
while in force had already accrued in
favour of the father of the respondentpetitioner, and his death in between further
gave rise to the expected consequential
claim of compassionate appointment of the
petitioner, provided his father's services
were declared regular. The consideration of
such right, whether had accrued, does not
get eclipsed nor could it be abandoned. If
the consideration results in the services of
the petitioner's-father becoming regular,
then the Full Bench judgment in the case of
Pawan Kumar Yadav (supra) would not be
an
impediment
for
the
respondentpetitioner
to
be
considered
for
compassionate appointment. The appellantState and it's authorities therefore, cannot
escape this exercise and defeat the right of
consideration by their inaction or the
absence of timely and prompt action. Such
exercise of consideration will not evaporate
because of untimely death which is a
fortuitous circumstance so as to result in
any advantage to the State.

13. Apart from this, in the present
case those who were at par with the father
of the respondents had been extended the
benefit
of
regularization.
This
distinguishing feature therefore, is in
addition to the issues involved in the case
of Pawan Kumar Yadav (supra) and
consequently, the claim of the respondentpetitioner
was
at
least
entitled
for
consideration by the State Government in
the
light
of
the
observations
made
hereinabove.

14. Learned counsel for the
appellant-State submits that the services of
the father of the respondent-petitioner
could not be straight away treated to have
been regularized and the learned single
Judge erred in issuing directions for
consideration
of
appointment
on
compassionate basis of the petitioner. We
agree with the submissions of the learned
standing counsel for the appellant and to
that extent, the judgment cannot be
sustained. Learned single Judge also does
not appear to have noted the judgment of
Pawan Kumar (supra).

15. Consequently, we modify the
judgment dated 22.11.2016 to the extent
that it shall be open to the appellant-State
to consider the status of regularization of
the father of the respondent and then
proceed to take an appropriate decision
with regard to the claim of the respondentpetitioner for compassionate appointment
in the light of the observations made
hereinabove."

13. In the present case what we
find from a perusal of the order dated
08.07.2022 is that the petitioner's mother's
case was under consideration for the
regularization of service and she was
directed to undergo medical examination
for the determination of her age because
she did not produce or did not have any
educational
certificate
about
it.
The
petitioner's mother had a right to be
considered for regularization much earlier
than what is reflected from the memo dated
08.07.2022 issued by the Divisional Forest
Officer. Her case ought to have been
considered, as already said, in accordance
with the decision of the Supreme Court in
Umadevi (supra) and decidedly in terms of
the Rules of 2001 made by the Governor in
the exercise of powers under the proviso to
Article 309 of the Constitution. Rule 4 of
the Rules of 2001 reads:

"4.
Regularisation
of
daily
wages appointments on Group 'D' Posts.-
7 All. Pawan Kumar Vs. State of U.P. & Ors.
107
(1) Any person who.-

(a) was directly appointed on
daily wage basis on a Group 'D' post in the
Government service before June 29, 1991
and is continuing in service as such on the
date of commencement of these rules; and

(b)
possessed
requisite
qualification
prescribed
for
regular
appointment for that post at the time of
such appointment on daily wage basis
under the relevant service rules, shall be
considered for regular appointment in
permanent or temporary vacancy, as may
be available in Group 'D' post, on the date
of commencement of these rules on the
basis of his record and suitability before
any regular appointment is made in such
vacancy in accordance with the relevant
service rules or orders.

(2)
In
making
regular
appointments
under
these
rules,
reservations for the candidates belonging to
the Scheduled Castes, Scheduled Tribes,
Other Backward Classes of citizens and
other
categories
shall
be
made
in
accordance with the Uttar Pradesh Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994, and the Uttar
Pradesh Public Services (Reservation for
Physically Handicapped, Dependents of
Freedom Fighters and Ex-Servicemen) Act,
1993 as amended from time to time and the
orders of the Government in force at the
time of regularisation under these rules.

(3) For the purpose of sub-rule
(1) the appointing authority shall constitute
a Selection Committee in accordance with
the relevant provisions of the service rules.

(4) The appointing authority
shall, having regard to the provisions of
sub-rule (1), prepare an eligibility list of the
candidates, arranged in order of seniority as
determined from the date of order of
appointment on daily wage basis and if two
or more persons were appointed together,
from the order in which their names are
arranged in the said appointment order. The
list shall be placed before the Selection
Committee along with such relevant
records pertaining to the candidates, as may
be considered necessary, to assess their
suitability.

(5) The Selection Committee
shall consider the cases of the candidates
on the basis of their records referred to in
sub-rule (4), and if it considers necessary, it
may interview the candidates also.

(6) The Selection Committee
shall prepare a list of selected candidates in
order of seniority, and forward the same to
the appointing authority."

14. There is nothing to show that
the petitioner's mother, who was appointed
on daily-wage basis way back in the year
1984,
was
ever
considered
for
regularization in accordance with Rule of
the Rules of 2001 by a Selection
Committee constituted for the purpose. The
Rules of 2001 were repealed and replaced
by the Uttar Pradesh Regularisation of
Persons Working on Daily Wages or On
Work
Charge
or
On
Contract
in
Government Departments on Group "C"
and Group "D" Posts (Outside the Purview
of the Uttar Pradesh Public Service
Commission) Rules, 2016 (for short, 'the
Rules of 2016'). Under Rule 4(d) of the
Rules 2016, a daily-wager is defined as
follows:

"4. Definitions.-Unless there is
anything repugnant in the subject or
context:

(d) "Daily Wages" means a
person who is engaged or employed or
deployed on a casual work on day to day
basis and whose wages/remuneration is
108 INDIAN LAW REPORTS ALLAHABAD SERIES
calculated on the basis of the days he has
worked;"

15. Rule 6 of the Rules of 2016
provide:

"6. Regularisation.-

(1) Any person who-

(i) was directly engaged or
employed or deployed or working on daily
wages or on work charge or on contract in a
Government Department on Group 'C or
Group 'D' post (outside the purview of the
Uttar Pradesh Public Service Commission)
on or before December 31, 2001 and is still
engaged or employed or deployed or
working as such on the date of the
commencement of these rules; and

(ii)
possessed
requisite
qualifications
prescribed
for
regular
appointment for that post at the time of
such
engagement
or
employment
or
deployment on daily wages or on work
charge or on contract, under the relevant
service rules and, subject to the provisions
of above mentioned Rules 2 and 5. shall be
considered for regular appointment on
Group 'C' or Group 'D' post (outside the
purview of the Uttar Pradesh Public
Service Commission) in permanent or
temporary vacancy as may be available on
the date of the commencement of these
rules, on the basis of his record and
suitability before any regular appointment
is made in such vacancy in accordance with
the relevant service rules or orders.

(2)
In
making
regular
appointments
under
these
rules,
reservations for the candidates belonging to
the Scheduled Castes, Scheduled Tribes,
Other
Backward
Classes
and
other
categories, shall be made in accordance
with the Uttar Pradesh Public Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994, and the Uttar Pradesh
Public Services (Reservation for Physically
Handicapped, Dependents of Freedom
Fighters and Ex-Servicemen) Act, 1993, as
amended from time to time, and the orders
of the Government in force at the time of
regularisation under these rules.

(3) For the purpose of sub-rule
(1), the appointing authority shall constitute
a Selection Committee in accordance with
the relevant provisions of service rules.

(4) The appointing authority
shall, having regard to the provisions of
sub-rule (1), prepare an eligibility list of the
candidates, arranged in order of seniority as
determined from the date of engagement or
employment or deployment on daily wages,
on work charge or on contract and, if two
or more persons are engaged or employed
or deployed together, from the order in
which their names are arranged in the said
engagement or employment or deployment
order. The list shall be placed before the
Selection Committee along with their
character rolls and such other relevant
records pertaining to them, as may be
considered
necessary
to
assess
their
suitability.

(5) The Selection Committee
shall consider the cases of the candidates
on the basis of their records, referred to in
sub-rule (4), and if it considers necessary, it
may interview the candidates also to assess
their suitability.

(6) The Selection Committee
shall prepare a list of selected candidates
arranging their names in order of seniority
and forward the same to the appointing
authority."

16. It must be remarked that the
petitioner's mother was all through treated
as a daily-wager though under orders of the
Supreme Court, she was placed on a
minimum salary that was subsequently
7 All. Pawan Kumar Vs. State of U.P. & Ors.
109
revised in accordance with the 7th Pay
Commission. Nevertheless, her status as a
daily-wager was not in issue and her claim
for regularization under the Rules of 2016
was under consideration when she passed
away. The petitioner's mother was clearly
eligible to be considered for regularization
under the Rules of 2016 as well. This Court
may dare say that though it has almost
become a sacrilege by a consensus of
judicial opinion to issue a mandamus to any
employer, even a State employer, to
regularize the services of an employee, the
proposition may require a rationalized
understanding in case of exceptionally long
retention in service on daily-wages like the
present case. Here, the petitioner's mother
was retained as a daily-wager for as long a
period as 39 years. No doubt, her case
ought to have been considered in the first
instance under the Rules 2001, and then,
under the Rules of 2016, if not decided
under the Rules of 2001. But, there is little
scope for the statutory Selection Committee
constituted under the Rules to think against
regularization of her services in the face of
a period of time as long as 39 years of
daily-wage service. It is nowhere said in
the counter affidavit as well that the
petitioner's mother's services were at any
time considered substandard or determined.
She was in continuous employ.

17. In the circumstances, we think
that the ratio of the Bench decision in
Kuldeep Thakur is squarely attracted to the
facts of the petitioner's case. This Court
takes notice of the decision of a learned
Single Judge in Nikhil Bharadwaj v. State
of U.P. and others, 2021:AHC:118710,
where long retention in service and inaction
to regularize after enforcement of the Rules
of 2001 and the Rules of 2016 of an
employee's services was regarded as
violation of a vested right to be regularized.
It was held in Nikhil Bharadwaj (supra)
that notwithstanding the non-regularization
of services of the petitioner's father, a
daily-wager, his services would be deemed
to
be
regularized
as
the
right
to
regularization was an accrued right of the
petitioner's father in that case. This Court
would not venture to expand the principle
to that extent. Nevertheless, it is true that it
is almost an inescapable conclusion that the
petitioner's mother's services ought to have
been regularized during the long period of
39 years that she was rendering her services
to the respondents, either under the Rules
of 2001 or the Rules of 2016.

18. Also, the petitioner's mother
was
entitled
to
be
considered
for
regularization in terms of the Government
Order dated 13.08.2015, a copy of which
has been annexed to the rejoinder affidavit.
That too was not done and though under
consideration, the case for regularization of
the petitioner's mother's services, solely on
account of the respondents' inaction and
lethargy, remained inchoate.

19. In the circumstances, we are of
opinion, following the directions made by
the Division Bench in Kuldeep Thakur,
that this writ petition deserves to be
allowed.

20. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 05.06.2023 passed by the
Divisional
Forest
Officer
is
hereby
quashed. A mandamus is issued to the
Divisional Forest Officer aforesaid, as well
as the other respondents, to consider
amongst themselves, regularization of the
petitioner's mother's services notionally and
then proceed to pass the necessary orders
with regard to the petitioner's claim for
compassionate appointment on the basis of
110 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner's mother's re-determined
status. The necessary orders shall be passed
by the fourth respondent as well as the
other respondents, whoever be concerned,
within a period of one month of receipt of a
copy of this judgment.

21. There shall be no orders as to
costs.

22. Let a copy of this order be
communicated to the Principal Chief
Conservator of Forest, Rana Pratap Marg,
Lucknow, the Conservator of Forest,
Prayagraj
Circle,
Prayagraj
and
the
Divisional Forest Officer, Social Forestry
& Wildlife Division, Pratapgarh by the
Senior Registrar.
----------
(2024) 7 ILRA 110
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.07.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ A No. 5911 of 2024

Naresh Kumar Mishra, Pno No. 822590316
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ram Charitra Pandey, Shashank Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law- Constitution of India,
1950-Article 226-retrospective revision of
salary- the petitioner, a retired SubInspector, challenged the retrospective
revision of his salary and recovery of Rs.
5,38,781 from his commuted pension by
the State of U.P.-No specific undertaking
was provided at the time of receiving the
excess payment, and the retrospective
salary revision violated a Government
Order dated 16.01.2007 limiting recovery
to the last 34 months prior to retirement -
The court relied the precedents set in
Sushil Kumar Singhal case and Rafiq
Masih Case which restricted recovery of
excess payments in the absence of an
explicit undertaking-The court quashed
the impugned orders, directing the refund
of the recovered amount and ordered the
fixation of the petitioner's pension based
on his last drawn salary at the time of
retirement.(Para 1 to 12)

The petition is allowed. (E-6)

List of Cases cited:

1. Sushil Kumar Singhal Vs Pramukh Sachiv
Irrgn. Deptt. & ors., Civil Appeal No. 5262 of
2008,

2. St. of U.P. & ors. Vs Suresh Kumar Tripathi
Writ-A No.3194 of 2022

3. St. of Punj. & ors. Vs Rafiq Masih (White
Washer ) & ors. (2015) 4 SCC 334

4. HC of Punj. & Hary. & ors. Vs Jagdev Singh
(2016) 14 SCC 267,

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Shashank Pandey,
learned counsel for the petitioner and Sri
Amarnath Singh Baghel, learned Standing
Counsel for the State-opposite parties.

2. By means of this petition, the
petitioner has prayed following main
reliefs:-

"(i) Issue a writ, order or
direction in the nature of certiorari to
quash
the
impugned
order
dated
20.02.2024 passed by Opposite Party No.2
after summoning the same by which