# U.P. and others v. Smt. Phoola Devi

- **Citation:** (2011) 1 ILRA 40
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-13
- **Case number:** Special Appeal No. 655 of 2006
- **Bench:** Devi Prasad Singh, Virendra Kumar Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-and-others-v-smt-phoola-devi-41781
- **Pages:** 4

## Headnote

Govt. Servant Dying in Harness Rule
1974-Rule-5-Compassionate
appointment-dependents of part time
tube well operator-not entitled for
compassionate appointment.

Held: Para 9

Keeping in view the fact that learned
Single Judge had not considered the
judgment of Phoola Devi (supra) where
a Division Bench of this court held that
part time tube-well operator shall not
be
entitled
for
compassionate
appointment, the impugned judgement
and order does not seem to survive.
Respondents petitioner does not seem
to be entitled for appointment on
compassionate ground under the Rules.
Accordingly, present appeal deserves
to be allowed.
Case law discussed:
Civil Misc. Writ Petition No. 15505 of 2005
decided on 22.9.2010, 2003 (5) SCC 448,
(1991) 4 SCC 139, AIR 1975 SC 907, 2005
(1) SCC 608, 1999 (3) SCC 112, AIR 1988
SC 1531, 1999 (5) SCC 638, 2004 (4) SCC

## Text

40 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the petitioners and other similarly situated
employees forthwith in accordance with
Rules applicable to Government employees.
Let decision be taken in pursuance of the
observations made in the body of the
present judgment expeditiously say, within
three months from the date of receipt of a
certified copy of this order. Respondents
shall also ensure the payment of arrears of
salary expeditiously say, within six months.

Costs made easy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.12.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE VIRENDRA KUMAR DIXIT, J.

Special Appeal No. 655 of 2006

State of U.P.

 ...Petitioner
Versus
Rakesh Kumar

 ...Respondent

Counsel for the Petitioner:
Standing Counsel

Counsel for the Respondent:
V.K. Srivastava

U.P. Recruitment of Dependents of
Govt. Servant Dying in Harness Rule
1974-Rule-5-Compassionate
appointment-dependents of part time
tube well operator-not entitled for
compassionate appointment.

Held: Para 9

Keeping in view the fact that learned
Single Judge had not considered the
judgment of Phoola Devi (supra) where
a Division Bench of this court held that
part time tube-well operator shall not
be
entitled
for
compassionate
appointment, the impugned judgement
and order does not seem to survive.
Respondents petitioner does not seem
to be entitled for appointment on
compassionate ground under the Rules.
Accordingly, present appeal deserves
to be allowed.
Case law discussed:
Civil Misc. Writ Petition No. 15505 of 2005
decided on 22.9.2010, 2003 (5) SCC 448,
(1991) 4 SCC 139, AIR 1975 SC 907, 2005
(1) SCC 608, 1999 (3) SCC 112, AIR 1988
SC 1531, 1999 (5) SCC 638, 2004 (4) SCC
590.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard learned counsel for the
parties and perused the record.

2. The present appeal has been
preferred under Chapter VIII Rule 5 of the
Rules of the Court against the impugned
judgement and order dated 2.5.2006 passed
by Hon'ble Single Judge in Writ Petition
no. 3608(SS) of 2006. Respondents
petitioner being aggrieved with an order
dated 7.3.2006 whereby his request for
appointment
under
Uttar
Pradesh
Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974 (in
short hereinafter referred as the Rule) was
rejected by Executive Engineer, Tube-well
Division II, district Sultanpur on the
ground that his father was appointed on
3.10.1991 as part time tube-well operator
and thereafter died on 28.11.2004, hence,
the dependents are not entitled for
appointment on compassionate ground.

3. Before Hon'ble Single Judge the
respondents had relied upon a judgement
of this Court in Writ petition no. 51469 of
2005, Vijay Kumar Yadav Vs. State of
U.P. dated 25th July, 2005 in which it was
held that dependent of part time tube-well
operator shall be entitled for appointment
on compassionate ground. Learned Single
1 All] State of U.P. V. Rakesh Kumar
41
Judge held that since tube-well operator
are government servant hence they are
entitled for appointment on compassionate
ground under rules in question.

4. Learned counsel for the appellant
had invited attention towards a Division
Bench judgement of this Court passed in
Special Appeal No. 117 of 2004 , State of
U.P. and others Vs. Smt. Phoola Devi
decided on 14.7.2000 whereby it has been
held that dependent of part time tube-well
operator
shall
not
be
entitled
for
appointment on compassionate ground.

5. It appears that during the course of
hearing the Division Bench judgement of
this court in the case of Smt. Phoola Devi
(supra) was not cited or referred before
Hon'ble Single Judge. While considering
Rule 5 of the Rule with regard to tube-well
operator the Division Bench held as
under:-

"Rule 5 of the U.P. Requirement of
Dependents of Government Servants Dying
in Harness Rules, 1974 provides that in
case a Government servant died in
harness, one member of his family shall be
given suitable employment in Government
Service which is not within the purview of
the
Pubic
Service
Commission
in
relaxation of normal recruitment rules,
provided
such
member
fulfills
the
educational qualification prescribed for
the post and is also otherwise qualified for
Government
Service. The
U.P.
Government had sent a communication to
the
Engineer-in-Chief
of
Irrigation
Department on Oct. 16,1996 that there was
no provision for giving employment to the
dependents
of
part-time
tube-well
operators were appointed to a particular
tube-well and were to get a fixed
remuneration in the appointment order of
Chandra Pal Singh (husband of writ
petition) it was mentioned that he was
being appointed on Tube-well No. 30 of
Village Dwdhara and in the even0.00"t of
failure of tube well his service will be
terminated. They had to be resident of the
same village or command area where the
tube-well was situated. Their working
hours were two and a half hours only and
thereafter they were free to carry on their
own occupation. It is obvious that their
position was not that of a full-time
Government Servant. Such part-time tubewell Operators were not dependent for
their livelihood on the remuneration which
they got as the said amount was very
small. The appointment order itself stated
that they could carry on their own
occupation in the non-duty hours and he
duty hours were much smaller as
compared to other Government Servant. A
government servant is normally a wholetime servant and is not entitled to carry on
any other occupation. He is normally
dependent for his livelihood upon the
salary which he gets, such is not the case
of a part-time tube-well operators, the
1974 Rules have been made to mitigate the
hardship of the family of a deceased
Government servant where on account of
death of the sole bread winner their
position becomes precarious. In view of
the difference in nature of appointment
nature of duties an the emoluments
received by them, a part-time tube-well
operator could not be put at part with a
regular government servant. Consequently,
the
Government
certified
that
such
category of persons will not be entitle to
the benefit of 1974 rules in view of the
Government order dated Oct. 26, 1998 and
in view of the substantial difference in the
nature of the employment of a Part-time
tube-well
operator
and
a
regular
government servant, the provisions of 1974
42 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
rules can have no application in such a
case. In
State
of
Manipur
Versus
Thingurjan Brojen Meerut. AIR 1996 SC
2124, it was held that family members of a
confirmed work charged employee cannot
get the benefit of dying in harness Scheme
framed by Government of Manipur. The
writ petition, therefore, could not claim
compassionate appointment on the ground
that she was widow of a Part-time tubewell operator who died in harness."

6. Attention of this court has been
invited towards a Full Bench Judgement of
this court decided on 22.9.2010 passed in
Civil Misc Writ Petition No. 15505 of
2005, Pawan Kumar Yadav Vs. State of
U.P. and others where the controversy with
regard to work charge employees was
considered for the entitlement under the
Rules. Full Bench held that the dependent
of work charge employee shall not be
entitled for appointment on compassionate
ground. More or less the controversy with
regard to appointment on compassionate
ground seems to be similar as those of the
work charge employee and the present one
i.e. part time tube-well operators. Hence
also the respondents petitioner does not
seems to be entitled of compassionate
appointment. Relevant portion from the
judgment of Pawan Kumar Yadav (supra)
is reproduced as under:-

"20. In respect of the employees the
State
Government
in
Irrigation
Department, Public Works Department,
Minor
Irrigation,
Rural
Engineering
Services, Grounds Water Department has
provided for employment the regular
establishment
and
work-charge
establishment. The person appointed in
regular establishment are appointed against
a post, after following due procedure
prescribed under the rules. In work-charge
establishment the employees are not
appointed by following any procedure or
looking into their qualification. They do
not work against any post or regular
vacancy. They only get consolidated salary
under the limits of sanction provided by
Government Order dated 6th April, 1929.
The conditions of their employment is
provided in paragraphs 667, 668 and 669
of Chapter XXI under the Head of
Establishment in Financial Hand Book
Volume IV. Their payments are provided
to be made in same Financial Hand Book
Volume IV in Paragraph Nos.458, 459,
460, 461, 462 and 463.

23. The regular need of work, of
which presumption has been set to arise
after working for long number of years and
the principles of legitimate expectations,
would not mean that there was a regular
vacancy. The word 'regular' vacancy has
not been defined but that a distinction must
be made between a need of regular
employees, and the existence of regular
vacancies. In Uttaranchal Jal Sansthan Vs.
Laxmi Devi (Supra) the Supreme Court
said; 'indisputably the services of the
deceased had not been regularised. in both
the cases the writ petitions were filed but
no effective relief thereto had been
granted. In the case of late Leeladhar
Pandy, allegedly he was drawing salary on
regular scale of pay. that may be so but the
same would not mean that there existed a
regular vacancy".

25. In General Manager, Uttaranchal
Jal Sansthan Vs. Laxmi Devi (Supra) the
Supreme Court considered and interpreted
the expression 'regular vacancy' in respect
of same Rules namely U.P. Recruitment of
Dependants
of
Government
Servant
(Dying in Harness) Rules, 1974. The
judgement of the Apex Court interpreting
1 All] Udai Ram V. State of U.P. and others
43
the same Rules and deciding the questions
posed before us squarely covers question
No.1, in favour of the State and is0.00"
binding on the High Court."

7. Thus law with regard to
entitlement
of
part-time
tube-well
operator was settled earlier to judgement
delivered by learned Single Judge in
Vijay
Kumar
Yadav
(supra)
with
declaration that tube-well operator shall
not
be
entitled
for
compassionate
appointment. The
impugned
judgment
and order passed by learned single judge
of this court seems to be per incurrium to
law laid down by this Court in the case of
Phoola devi (supra).

8. Per incurrium means in ignorance
of or without taking note of some
statutory provisions or the judgement of
Hon'ble Supreme Court or the larger
Bench, vide; 2003 (5) SCC 448, State of
Bihar Vs. Kalika Singh and others
(1991) 4 SCC 139 State of U.P and
another Vs. Synthetics and chemicals
Ltd. And another, AIR 1975 SC 907
Mamleshwar Prasad and others Vs.
Kanhaiya Lal, 2005 (1)SCC 608, Sunita
Devi Vs. State of Bihar, 1999 (3) SCC
112;
Ram
Gopal
Baheti
Vs.
Giridharilal Soni and others, AIR 1988
SC 1531; Municipal Corporation of
Delhi VS. Gurnam Kaur, 1999 (5) SCC
638; Sarnam Singh Vs. dy. Director of
Consolidation and others, 2004 (4) SCC
590 State Vs. Ratan Lal Arora.

9. Keeping in view the fact that
learned Single Judge had not considered
the judgment of Phoola Devi (supra)
where a Division Bench of this court held
that part time tube-well operator shall not
be
entitled
for
compassionate
appointment, the impugned judgement
and order does not seem to survive.
Respondents petitioner does not seem to
be
entitled
for
appointment
on
compassionate ground under the Rules.
Accordingly, present appeal deserves to
be allowed.

10.

Appeal is allowed. The
judgement and order dated 2.5.2006
passed by learned Single Judge is set
aside. The writ petition is also dismissed
being devoid of merit. Cost made easy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Civil Misc. Writ Petition No.793 of 2009

Udai Ram

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

Counsel for the Petitioner:
Sri Ranjeet Saxena
Sri Amit Kumar Mishra

Counsel for the Respondents:
Sri V.P.Varshney
Sri Pankaj Khare
Sri Shashi Bhushan
Sri Pushpendra Singh
C.S.C.

U.P.
Govt.
Servant
(criterion)
for
Recruitment by Promotion Rules, 1994
Rule-4-Promotions on Post of A.R.T.O.-
seniority list petitioner placed at Serial
No. 6-where respondents at serial no. 8
and 9-from 2001 to 2004-integrity of
petitioner
certified-assessed
as
"outstanding"-petitioner's entire entry
during these period not placed-direction
with time bond consideration issued.