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2019 Supreme(All) 2633
IN THE HIGH COURT OF ALLAHABAD
Sudhir Agarwal, J.
Saroj Kumar – Petitioner
Versus
State of U.P. through Chief Secretary and Others – Respondents
Writ A No. 21194 of 2002
Decided On : 01-11-2019
Advocate Appeared:
For the Petitioner: Bhanu Bhushan Jauhari
Point of law: It is settled law that the appointments made under the provisions of the U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 are of permanent nature. Since appointment of the petitioner was of permanent nature, the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975 were not applicable.
Headnote:
U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 – Rule 3 – Employee Allowances Issue – Appointment - An appointment on probation does not detract from the nature of the appointment which is to a regular service. Probation is merely an opportunity for the probationer to establish by dint of the work which is rendered during the period of probation, that he or she is suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. There is a well accepted distinction in law and in service jurisprudence between a probationary appointment and a temporary appointment
Facts of the case: – The Petition is to issue writ order or direction in the nature of mandamus directing and commanding the respondents to treat the petitioner in service and to make regular payment of the salary and other allowances of the petitioner with effect till retirement of the petitioner .
Finding of the court: – It is not a case of respondents that after five years family of deceased employee including petitioner were not facing penurious condition and therefore, compassionate appointment is not justified – Moreover, once compassionate appointment was made and there was no fraud, misrepresentation or other fault on the part of such employee – In court view, termination of compassionate appointment in such a case is patently arbitrary, whimsical and erroneous – In the present case, however, since respondents have terminated petitioner treating his appointment only as temporary taking recourse this approach of respondents is clearly in the teeth of law laid down in above Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra).
Result: – Petition Dismissed
JUDGMENT :
1. Heard Sri Bhanu Bhushan Jauhari, learned counsel for petitioner and learned Standing Counsel for State of U.P., and perused the record.
2. Principal reliefs claimed in this writ petition reads as under:
“(i) to issue writ order or direction in the nature of certiorari quashing order dated 10.5.2002 (Annexure No. 9).
(ii) to issue writ order or direction in the nature of mandamus directing and commanding the respondents to treat the petitioner in service and to make regular payment of the salary and other allowances of the petitioner with effect from 1.11.2001 till retirement of the petitioner.”
3. It is contended by learned counsel for petitioner that petitioner was appointed as Lower Grade Clerk in the office of Executive Engineer Bhawan/Marg Service Khand Lok Nirman Vibhag Bareilly on compassionate basis vide order dated 1.10.1999 passed by Chief Engineer, West Zone, Lok Nirman Vibhag, U.P. Bareilly on probation. Thereafter, show cause notice was issued to petitioner on 2.1.2002 stating that as father of petitioner died on 22.12.1984 and application for appointment on compassionate basis under U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 (hereinafter referred to as "Rules 1974") was submitted after more than 5 years, so he should show cause why his appointment be not terminated.
4. Petitioner submitted reply dated 14.1.2002. Thereafter impugned order dated 10.5.2002 has been passed terminating petitioner under U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as "Rules 1975").
5. It is contended by learned counsel for petitioner that appointment of petitioner was made on compassionate basis on a substantive basis and hence, he could not have been terminated under Rules 1975. Since the said Rules are not attracted in this case.
6. The basic facts when questioned, learned Standing Counsel could not dispute but submitted that an appointment on probation is also temporary appointment. Therefore, petitioner was terminated in purported exercise of power under Rule 3 of Rules 1975.
7. The respective submissions raised a question, whether appointment of petitioner be treated to be substantive or a temporary appointment which could have been terminated under Rules 1975. Thus, the question for consideration as this Court formulated for adjudication in this case is "whether compassionate appointment under Rules, 1974 could have been made on temporary basis and such appointment could have been terminated in purported exercise of powers under Rules, 1975".
8. I find that on a reference made by a learned Single Judge to a Larger Bench, this issue was considered by a Division Bench consisting of Hon'ble Markandey Katju (as His Lordship then was) and Hon'ble Kamal Kishore, JJ. in Ravi Karan Singh vs. State of U.P. and others, 1999(3) UPLBEC 2263. Earlier there were three Single Judge judgments in Dhirendra Pratap Singh v. District Inspector of Schools and others 1991 (1) UPLBEC 427; Gulab Yadav vs. State of U. P. and others 1991 (2) UPLBEC 995 and Budhi Sagar Dubey v. District Inspector of Schools and others 1993 ESC 21 wherein it was held that an appointment under Rules, 1974 is a permanent appointment. Subsequently a learned Single Judge disagreed with aforesaid three judgments and referred the matter to Larger Bench. In Ravi Karan Singh vs. State of U.P. (supra), Larger Bench upheld the view taken in above three judgments and held that an appointment under Rules, 1974 has to be treated as permanent appointment since compassionate appointment, if treated to be a temporary appointment, it will nullify the very purpose of Rules applicable for compassionate appointment. Larger Bench (Division Bench) also held that in respect of appointment made on compassionate basis Rules, 1975 will not apply. Para 2 of judgment laying down law by Division Bench in Ravi Karan Singh vs. State of U.P. (supra) reads as under:
"2. In our opinion, an appointment under the
