Back
2009(4) Supreme 774
SUPREME COURT OF INDIA
S.B. Sinha and Dr. Mukundakam Sharma, JJ.
General Manager, Uttaranchal Jal Sansthan — Appellant
versus
Laxmi Devi and others — Respondents
Civil Appeal No. 3605 of 2009
(Arising out of SLP (Civil) No. 15469 of 2006
with
Civil Appeal No. 3606 of 2009
(Arising out of SLP (Civil) No. 2737 of 2006)
Decided on : 15-05-2009
(b) Service Law – Regular vacancy would mean a vacancy which occurred in a post sanctioned by the competent authority – A regular vacancy is which arises within the cadre strength – Well settled that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance of the constitutional scheme of equality. (Para 16)
(2006) 3 SCC 297 – Distinguished.
(c) Service Law – Need for regular employee and existence of regular vacancy are two distinct and different things– Work-charged employees may claim to be regularized in view of long period of service, but without regularization their dependents cannot invoke the rules of compassionate appointment. (Paras 19 and 20)
(d) Service Law – Appointment – Any appointment through side door would be violative of our constitutional scheme of equality contained in Articles 14 and 16 of the Constitution of India. (Para 22)
(2006) 4 SCC 1; (2007) 1 SCC 408; (2007) 2 SCC 481; (2007) 6 SCC 162; (2007) 9 SCC 571 – Relied upon.
(e) Interpretation – Judicial decisions are retrospective, unless otherwise specified. (Para 24)
(f) Service Law – Appointment – Appointment made in violation of the constitutional scheme is a nullity – Therefore rendition of service for a long time on such appointment does not confer permanency. (Para 24)
1995 Supp (4) SCC 182 – Distinguished.
(g) Administrative Law – Executive instructions cannot prevail over the statutory provisions. (Para 26)
(2004) 2 SCC 297 – Relied upon.
(h) Constitution of India – Article 14 – Article 14 of the Constitution of India carries with it a positive effect – It cannot be invoked to perpetuate illegality. (Para 29)
(i) Service Law – Compassionate appointment – It is an exception to the mode of regular appointment. (Para 30)
Facts of the case :
1. Whether dependent of a deceased who was not a permanent or temporary employee would be entitled to appointment on compassionate ground is the question involved in these appeals.
Finding of the Court :
Impugned judgments cannot be sustained.
Result : Appeals allowed.
JUDGMENT
S.B. Sinha, J.—
1. Leave granted.
2. Whether dependent of a deceased who was not a permanent or temporary employee would be entitled to appointment on compassionate ground is the question involved in these appeals.
3. Before, however, adverting to the said legal issue, we may notice the factual matrix involved in both the maters.
Appeal arising out of SLP (C) No.15469 of 2006
4. Husband of respondent No.1 herein, late Balam Singh had been working as a Chowkidar under the UP Jal Nigam since 1st August 1989 as a daily wage labourer. On or about 16th April 1991 the services of Sri Balam Singh were transferred to the Kumaon Jal Sansthan, Some time around 2001 the deceased filed a writ petition No. 997 (SS) of 2001 seeking regularization 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 order dated 9 th May, 2005 directing the appellants to consider her for appointment under the Rules within a period of three months from the filing of the certified copy of the order.
7. An intra court appeal filed by the appellants against that order stood dismissed by the impugned judgment.
Appeal arising out of SLP No. 2737 of 2007
8. Father of the respondent late Leelladhar Pandey had been engaged on daily wage basis in the UP Jal Nigam. On or about 01.10.1990 he was transferred to the Kumaon Jal Sansthan, Nanital.
In 2001 he filed a writ petition No. 261 (SS) of 2001 before the High Court of Uttranchal at Nainital praying therein for regularization of his services in the Uttranchal Jal Sansthan. The said petition is admittedly still pending with the High Court.
Soon thereafter he died on 12.09.2002. On or about 23.01.2003 the respondent made a representation for his appointment in the Sansthan under the Rules. The same was however rejected in view of the Government order dated 28.05.2002
9. Aggrieved, the respondent filed a writ petition No. 238/2003 (S/B) before the High Court of Uttranchal at Nanital seeking the benefit of the Rules,
On or about 24.02.2001 the High Court allowed the writ petition and directed the respondent to consider the claim of the petitioner for providing the appointment under the provisions of the Rules on compassionate ground within a period of six weeks.
10. Appellant is a Corporation constituted under the U.P. Water Supply and Sewerage Act, 1975. Recruitment of its employees is governed by the Rules framed by the State of Uttar Pradesh. It is, however, stated that the posts are created only by the State of Uttar Pradesh.
11. Indisputably applications filed by the respondents herein for grant of appointments on compassionate grounds had been denied on the premise that their deceased relatives were only daily wagers.
In arriving at its finding, the High Court inter alia considered its earlier decision to opine that as the deceased were in the employment of the appellant for a long time, the prayer of the writ petitioners
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
