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TMI Blog2009 (5) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... arization of his services. On or about 11.5.2001 the High Court passed the following interim order in the said petition: In the meantime the respondent are directed to pay minimum pay scales as is being paid to the similarly situated persons and consider the case of the petitioners for regularization However, soon thereafter, on or about 25th April, 2002 he died. Admittedly he had worked for more than 12 years till the time of his death as a daily wage labourer. 5. Respondent No.1 thereafter approached the petitioner General Manager, Kumaon Jal Sanstha for her appointment on compassionate grounds in place of her deceased husband under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 (for short `the Rules'). The said request was rejected on the ground that her husband being a daily wage earner, there was no provision for her appointment on compassionate grounds; the engagement of late Balam Singh being neither permanent nor was he regularly appointed. His appointment was also not against a regular vacancy. 6. Respondent No.1 filed a writ petition before High Court which was allowed by a learned Single Judge by his ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) through no regularly appointed had 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 dependants 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 of a member of the family of the deceased. It reads as under : 5. Recruitment of a member of the family of the deceased. - (1) In case a Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d daily rated workers be done in Work Charge Units. Thus, it is clear that as per Government's Order, Work Charge Cadre has been terminated from the Department for future. In pursuance of Grievance Meeting with P.W.D. Regular/Work Charge Worker's Union held on 19.03.2002, on its demand, making partial amendment in Letter No. 144/10 W.C. Uttaranchal/2001 dated 15.02.2002, the Engineer- in-Chief, U.P.P.W.D., Settlement (C) Section, Lucknow vide its Office Order Memo. No. 3552 Settl./27/Settl./96 dated 27.06.1996 has passed an order to maintain the ruling of providing appointment on daily wage to the dependents on death of such Daily Rated Workers who had completed 10 years of their services as it is. 14. Contention of learned counsel for the respondents is that keeping in view the fact that the services rendered by the deceased employees were for over 10 years, appointment on compassionate ground would be permissible, particularly when persons similarly situated had been granted such appointments 15. Indisputably when Rules were framed by the State in terms of the proviso appended to Article 309 of the Constitution of India the same would prevail over circulars/l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears would raise a presumption that there exists a vacancy and, thus, there is a regular need for services. Strong reliance in this behalf has been placed in this regard on Workmen v. Bhurkunda Colliery of Central Coalfields Ltd., [ (2006) 3 SCC 297 ], wherein it was held :- 17. This Court in State of Haryana v. Piara Singh held that: (SCC p. 153, para 51) So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell--say two or three years--a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. Also, in the matter of regularisation, the main concern of the court is to see that the rule of law is respected and to ensure that the executive acts fairly and gives a fair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sabled 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. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sionate ground would be illegal in absence of any scheme providing therefor. Such scheme must be commensurate with the constitutional scheme of equality. 16. All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder. This Court in I.G. (Karmik) v. Prahalad Mani Tripathi, [ (2007) 6 SCC 162] had held :- 7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder S. Monga, [ (2004) 2 SCC 297], wherein it was held that executive instructions cannot run contrary to the statutory provisions. 27. Learned counsel for the respondents submits that the daily wage employees would be entitled to the benefit of the Rules. They are, in our opinion, not covered in the definition of the `government employee'. 28. Ms. Issar urged that the daily wagers are not excluded from the purview of the Rules. The said question, in our opinion, is irrelevant. The question which should have been posed is as to whether daily wagers are included within the definition of government servant . If daily wagers are not government servants, question of applicability of the Rules does not arise. 29. Submission of the learned counsel that persons similarly situated have been appointed is again of not much relevance. Apart from the fact that the High Court in its impugned judgment did not proceed on the said basis, it is now well settled that Article 14 of the Constitution of India carries with it a positive effect. Equality clause cannot apply in a case where it arises out of illegality. 30. Moreover, grant of appointment on compassionate ground has its ow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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