# State of U.P. and others v. Putti Lal

- **Citation:** (2011) 3 ILRA 1245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-17
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-putti-lal-41956
- **Pages:** 3

## Headnote

Constitution of India Article 226-U.P.
Recruitment
of
Dependents
of
Governments Servants Dying in Harness
Rule 1974-compassionate appointmentpetitioner's father working as Forest
Guard on daily wages basis-died in
harness-even worked for more than 3
years and given salary in Pay Scale-in
view of Full Bench decision of Pawan
Kumar
case
not
entitled
for
compassionate appointment.

Held: Para 8

The Full Bench of this Court in the case
of Pawan Kumar Yadav vs. State of U.P.
and others (supra) on consideration of
Rules 5 (1) and 2 (a) of the Dying in
Harness Rules, 1974 has held that the
dependants of the daily wager or work
charge employee not holding any post
either substantive or temporary and not
appointed in any regular vacancey; even
if he worked for more than three years
before the death is not entitled for
appointment on compassionate ground.
Case law discussed:
(2006) 9 SCC-337; (2009) 2 SCC (L&S) 304;
[2010 (8) ADJ 664 (FB)]; Pawan Kumar Yadav
vs. State of U.P. and others (supra)

## Text

3 All] Ajay Kumar V. State of U.P and others
1245
after giving notice under Rule 99(2) to all
affected persons."

15. It is therefore an obligation of
the court to pass such an order as it is
mandatory as observed by the Apex
Court. The recital contained in the order
dated 7th August, 2007 does not indicate
that the court had formally passed an
order for setting aside the sale which
requirement has to be fulfilled for the
passing of an order and therefore the writ
petition stands disposed of with a
direction to the court concerned to
proceed to pass an order in accordance
with law in the light of the observations
made hereinabove within a period of two
months from the date of presentation of a
certified copy of this order before the
court concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition N0. 55804 of 2011

Ajay Kumar

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

Counsel for the Petitioner:
Sri Pankaj Srivastava

Counsel for the Respondents:
Ms. Suman Sirhio
C.S.C.

Constitution of India Article 226-U.P.
Recruitment
of
Dependents
of
Governments Servants Dying in Harness
Rule 1974-compassionate appointmentpetitioner's father working as Forest
Guard on daily wages basis-died in
harness-even worked for more than 3
years and given salary in Pay Scale-in
view of Full Bench decision of Pawan
Kumar
case
not
entitled
for
compassionate appointment.

Held: Para 8

The Full Bench of this Court in the case
of Pawan Kumar Yadav vs. State of U.P.
and others (supra) on consideration of
Rules 5 (1) and 2 (a) of the Dying in
Harness Rules, 1974 has held that the
dependants of the daily wager or work
charge employee not holding any post
either substantive or temporary and not
appointed in any regular vacancey; even
if he worked for more than three years
before the death is not entitled for
appointment on compassionate ground.
Case law discussed:
(2006) 9 SCC-337; (2009) 2 SCC (L&S) 304;
[2010 (8) ADJ 664 (FB)]; Pawan Kumar Yadav
vs. State of U.P. and others (supra)

(Delivered by Hon'ble Rajes Kumar, J. )

1. The petitioner is claiming
compassionate appointment on account of
death of his father, who died on 29.9.2007
under
the
U.P.
Recruitment
of
Dependents of Government Servants
Dying
in
Harness,
Rules,
1974
(hereinafter referred to as ("Dying in
Harness, Rules, 1974").

2. The contention of the petitioner is
that his father was employed as a daily
wager on the post of Forest Guard in the
year 1984 in Badaun. In pursuance of the
order of the apex Court in the case of
State of U.P. and others Vs. Putti Lal,
reported in (2006) 9 SCC-337, he was
getting minimum pay-scale of the payscale of the regular employee. On
24.5.2008, the petitioner's mother had
requested respondent to extend the benefit
of Dying in Harness Rules, 1974 to the
petitioner, the son of the deceased, and
1246 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
also claimed pension. The Divisional
Director
Social
Forestry
Division,
Badaun, District Badaun wrote a letter to
the District Magistrate, Badaun dated
3.6.2008 stating therein that Late Sri Ram
Pal was working as a daily wager in the
minimum of pay-scale, died on 29.9.2007
and since he was working as a daily
wager, the dependants of the deceased are
not entitled for the benefit of pension and
compassionate
appointment.
The
compassionate
appointment
has
accordingly been denied. Being aggieved,
the petitioner filed the present writ
petition.

3. Heard Sri Pankaj Srivastava,
learned cousnel for the petitioner and Ms.
Suman Sirohi, learned Standing Cousnel
for the respondents.

4. Learned counsel for the petitioner
submitted that father of the petitioner was
regularly appointed employee and put
three years continuous service therefore,
under sub-clause (iii) of clause (a) of Rule
2 of the Dying in Harness Rules, 1974,
the father of the petitioner was covered
under the Government servant and,
therefore, the petitioner is entitled for the
compasionate appointment.

5. Ms. Suman Sirohi, learned
Standing Counsel submitted that the
father of the petitioner was engaged as a
daily wager. He was neither regularly
appointed nor his appointment was
against the regular vacancy and, therefore,
the father of the petitioner was not
Government servant as defined under
clause (a) of Rule 2 of the Dying in
Harness
Rules,
1974.
She
further
submitted that Rule 2 (a) (iii) of the Dying
in Harness Rules, 1974 came up for
consideration before the apex Court in the
case of General Manager, Uttaranchal
Jal Sansthan vs. Laxmi Devi and others,
reported in (2009) 2 SCC (L&s) 304
wherein it has been held that the daily
wager not employed in regular vacancy is
not a Government servant and not entitled
for
compassinate
appointment.
She
further submitted that the issue involved
is squarely covered by the Full Bench
decision of this Court in the case of
Pawan Kumar Yadav vs. State of U.P.
and others, reported in [2010 (8) ADJ
664 (FB)] wherein it has been held that
dependants of the daily wager or work
charge employee, not holding any post
either substantive or temporary and not
appointed in any regular vacancy; even if
he worked for three years before the death
not
entitled
for
appointment
on
compassinate ground.

6. I have considered the rival
submissions.

7. The issue involved is no more res
integra. It is not the case of the petitioner
that the father of the petitioner was
engaged against the regular vacancy
following the proper procedure laid down
for the recruitment to the post. It is also
not the case of the petitioner that the
service of his father had ever been
regularized. Merely because the father of
the petitioner was getting the minimum of
pay-scale in view of the decision of the
apex court in the case of State of U.P.
and others Vs. Putti Lal, reported in
(2006) 9 SCC-337 (supra), the status of
the employment will not change. His
engagement was a daily wager and on the
date of the death he worked as a daily
wager. He was not regularly appointed
employee against the regular vacancy.
The apex Court in the case of General
Manager, Uttaranchal Jal Sansthan vs.
3 All] Deputy G. M., Bhartiya Door Sanchar Nigam Ltd V. Ram Kumar Sharma and others
1247
Laxmi Devi and others (supra) has
considered Rule 2 (a) (iii) of the Dying in
Harness Rules, 1974 and has held that the
daily wager not employed in regular
vacancy is not a Government servant
under Rule 2 (a) (iii) of the Dying in
Harness Rules, 1974 and the dependants
of such daily wagers are not entitled to be
considered
for
compassionate
appointment.
The
word
"regular
vancancy" has been interpretated as
means the vacancy which occurs against a
sanctioned post of a cadre strength. It has
been further held that regular vancancy
cannot be filled up except in terms of the
recruitment rules as also upon compliance
with the constitutional scheme of equality.
In view of the Explanation appended to
Rule 2 (a), for the purpose of this case
would, however, assume that such regular
appointment was not necessarily to be
taken recourse to. In such an event subclause (iii) of clause (a) as also the
Explanation appended thereto would be
rendered unconstitutional. The provision
of law which ex facie violates the equality
clause and permits appointment through
the side-door being unconstitutional must
be held to be impermissible and in any
event requires strict interpretation. It was,
therefore, for the respondents to establish
that at the point of time the deceased
employees were appointed, there existed
regular vacancies. The apex Court further
held that merely because the deceased
was drawing salary on a regular scale of
pay, the same would not mean that there
existed a regular vacancy.

8. The Full Bench of this Court in
the case of Pawan Kumar Yadav vs. State
of
U.P.
and
others
(supra)
on
consideration of Rules 5 (1) and 2 (a) of
the Dying in Harness Rules, 1974 has
held that the dependants of the daily
wager or work charge employee not
holding any post either substantive or
temporary and not appointed in any
regular vacancey; even if he worked for
more than three years before the death is
not
entitled
for
appointment
on
compassionate ground.

9. In view of the above, I do not find
any merit in the claim of the petitioner
and is liable to be rejected. The writ
petition is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 58289 of 2011

Deputy General Manager, Bhartiya Door
Sanchar Nigam Ltd.

 ...Petitioner
Versus
Ram Kumar Sharma and others

 ...Respondents

Counsel for the Petitioner:
Sri K.N. Mishra
Sri Abhishek Mishra

Counsel for the Respondents:
......................................

Indian Telegraph Act 1885-Section7-Bjurisdiction of permanent Lok Adaalat-a
creation
of
statute-order
passes
by
P.L.A.-not simply arbitration award-but
adjudicationary roll to play-warrants nor
interference

Held: Para 6

It is contended that Indian Telegraph
Act, 1885 (hereinafter referred to as "Act
1885") is a special Act and if there is any
deficiency on account of system failure,
no compensation is payable unless it is