Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : Employees Of DRDA Are Not Government Servants, Hence, Dying In Harness Rules 1974 Are Not Applicable To Them.
JUDGEMENT TITLE : State Of U.P. Thru. Prin. Sec. And 4 Others Vs. Ajeet Kumar Shahi On 10/05/2015 By Allahabad High Court
CASE NO : SPECIAL APPEAL NO. 714 OF 2015
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Yashwant Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR

Case :- SPECIAL APPEAL No. - 714 Of 2015

Appellant :- State Of U.P. Thru. Prin. Sec. And 4 Others
Respondent :- Ajeet Kumar Shahi
Counsel For Appellant :- A.K. Roy,S.C.
Counsel For Respondent :- V.B. Khare,A.K. Shukla

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

This Special Appeal Has Arisen From A Judgment And Order Of The Learned Single Judge Dated 24 April 2015.
The Father Of The Respondent Was Appointed As A Junior Engineer On 1 October 1982 And Was Eventually Absorbed In The District Rural Development Agency1 On 12 October 1990. He Died While In Harness On 8 May 2010. The Respondent Was Born On 25 August 1995. According To Him, When He Attained The Majority, He Moved An Application On 24 February 2015 For Appointment Under The Recruitment Of Dependents Of Government Servants Dying-in-Harness Rules, 19742. The Application Was Rejected By The Project Director, DRDA On 3 March 2015. It Appears That On 2 June 2004, A Communication Was Addressed By The Commissioner, Rural Development To The Chief Development Officers And To All The Project Directors To The Effect That There Was A Government Order Dated 22 April 2004. The Government Order Provided That DRDA Is A Society Registered Under The Societies Registration Act, 1860 And Hence, The Provisions Of The Rules Of 1974 Would Not Apply.
The Case Of The Respondent In The Writ Petition Was That In A Judgment Of A Learned Single Judge Dated 26 July 2006 In Smt. Reeta Mishra V State Of Uttar Pradesh3, The Government Order Dated 22 April 2004 Was Quashed And Set Aside And A Direction Had Been Issued For Considering The Claim Of The Applicant-petitioner For Appointment Under The Rules Of 1974. That Judgment Is Followed In A Subsequent Decision Of A Learned Single Judge In Shaffique Ahmad V State Of Uttar Pradesh4. In State Of Uttar Pradesh V. Surya Bhan Singh5, A Division Bench At Lucknow Rendered A Judgment On 21 July 2014. In That Case, The Father Of The Respondent Had Died In Harness And In The Writ Petition Which He Had Filed, The Learned Single Judge Quashed The Government Order Dated 22 April 2004, Which Was Coming In His Way For Appointment On Compassionate Grounds. Thereafter The Respondent Was Appointed On The Post Of Junior Clerk, But His Services Were Terminated Subsequently Leading To The Filing Of A Writ Petition6. The Order Of Termination Was Set Aside On The Ground That The Appointment Had Been Made On Compassionate Basis And The Government Order Dated 22 April 2004 Had Been Quashed. The Division Bench, In A Special Appeal Against The Judgment Of The Learned Single Judge, Held That Since The Appointment Had Been Made In Pursuance Of A Judgment Of This Court, It Was Not Open To The Authority To Terminate The Services After Lapse Of Six Months In Breach Of The Principles Of Natural Justice. Hence, It Was Held That Such Exercise Of Power Was Arbitrary. The Special Leave Petition Against The Judgment Of The Division Bench Dated 21 July 2014 Was Dismissed On 7 January 2015.
The Basic Issue Which Arises For Consideration Is As To Whether The Provisions Contained In The Rules Of 1974 Are Attracted. The Expression "government Servant" Is Defined In Rule 2 (a) As Follows:
"(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) Though Not 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;"

A Division Bench Of This Court In State Of Uttar Pradesh V Pitamber7 Considered The Issue As To Whether The Employees Of DRDA Are Government Servants Holding Civil Posts In The Civil Service Of The State So As To Attract An Application Of Rule 56 Of The Fundamental Rules. The Division Bench By Its Judgment Dated 19 August 2010 Held As Follows:
"16. Considering The Above Referred Judgments And The Material On Record, It Will Be Clear That Firstly The DRDA Is A Society Registered Under The Societies Registration Act. Its Funding Is 70 Percent From The Central Government And 30 Percent From The State Government. The Members Of The Society And Also The Working Committee Are Basically Persons Holding The Posts In Government Service, Mostly In The State Government And Some In The Central Government, As The Object Is Of Rural Development. Bye-law 20 (h) Recognizes That The Staff Are To Be Appointed By The Governing Body. The Accounts Are To Be Approved By The Governing Body In Its Annual General Meeting. Suits Are To Be Filed Against The Society. Thus, Though There May Be Funding By The Central/State Governments And Control By The State Government, Nonetheless They Are Employees Of The Society. Some Posts Are Filled Up On Transfer By The Governor And In Respect Of Others, Appointments Are To Be Made By The Chief Executive Officer, Who Is The District Magistrate. Considering The Tests Laid Down In Kanik Chandra Dutta (supra), We Are Clearly Of The Opinion That The Tests Laid Down In The Judgment Of The Supreme Court Are Not Satisfied. Once It Is Held That They Are The Employees Of DRDA And Are Not Holding Civil Posts In The Service Of State, Rule 56 Of The Fundamental Rule Would Not Apply To Them."

In View Of The Law Which Has Been Laid Down By The Division Bench In Its Judgment Dated 19 August 2010 In Pitamber (supra), It Is Now A Settled Principle Of Law That The Employees Of DRDA Are Not Holding Civil Posts In The Services Of The State. They Continue To Be The Employees Of DRDA Which Is A Society Registered Under The Societies Registration Act, 1860. That Being The Position, The Provisions Of Rule 2 (a) Of The Rules Of 1974 Would Not Be Attracted.
Initially, It Appears That There Was A Judgment Of A Learned Single Judge At Lucknow In Smt. Reeta Mishra (supra) By Which The Government Order Dated 22 April 2004 Was Quashed And A Mandamus Was Issued For Considering The Case Of The Applicant-petitioner For Compassionate Appointment Under The Rules Of 1974. We Extract Hereinbelow The Judgment Of The Learned Single Judge In Smt. Reeta Mishra (supra):
"The Petitioner's Case Has Been Denied From Consideration On The Point Of Compassionate Appointment Due To The Reason That District Rural Development Agency Is An Agency Registered Under The Societies Registration Act And The U P Recruitment Of Dependents Of Government Servants Dying-in-Harness Rules, 1974 Is Not Applicable With Respect To The Employees Of This Agency.
Learned Counsel For The Petitioner Has Moved An Application For Interim Relief In The Light Of The Decision Of This Court Rendered In Writ Petition No.2280 (SS) Of 2006 On 19.4.2006, Whereby The District Rural Development Agency Has Been Declared As An Instrumentality Of The State, In The Light Of Which The Petitioner's Case For Appointment Under The Relevant Rules Can Be Considered.
After Considering The Facts And Circumstances Of The Case As Well As The Aforesaid Judgment, I Hereby Quash The Impugned Order Dated 22nd April, 2004 Contained In Annexure No.1 To The Writ Petition, Passed By The State Government And Issue A Writ Of Mandamus In The Respondents To Consider The Case Of The Petitioner For Appointment Under The U P Recruitment Of Dependents Of Government Servants Dying-in-Harness Rules, 1974 In Accordance With Law Within A Period Of Two Months From The Date A Certified Copy Of This Order Is Produced Before The Authority Concerned. It Is Clarified That His Case Shall Not Be Thrown Out On The Ground That The DRDA Is Not An Instrumentality Of The State.
The Writ Petition Is Disposed Of Finally. No Order As To Costs."

Ex Facie, In The Present Case, The Learned Single Judge Has Not Considered The Fact That The Judgment Which Was Rendered On 26 July 2006 In Smt. Reeta Mishra (supra) Was Prior To The Judgment In Pitamber (supra) Which Was Rendered On 19 August 2010. The Judgment Of The Learned Single Judge In Smt. Reeta Mishra (supra) Does Not Hold That The Issue Of Law Cannot Be Considered As Laying Down Any Principle Of Law As Such. This Judgment Was Subsequently Followed By Another Learned Single Judge In Shaffique Ahmad (supra) On 25 March 2008. The Judgment Of The Division Bench In Surya Bhan Singh (supra) Which Was Rendered On 21 July 2014 Arose In The Context Of The Facts And Circumstances Which Were Peculiar To That Situation. In That Case, There Was A Judgment Of A Learned Single Judge Which Set Aside The Government Order Dated 22 April 2004, As Noticed Earlier, And Directed Fresh Consideration Of The Claim For Compassionate Appointment. The Applicant-petitioner Was Thereafter Appointed On A Compassionate Basis, But His Services Were Terminated Upon Expiry Of A Period Of Six Months, Without Complying With The Principles Of Natural Justice. It Is In This Background That The Division Bench At Lucknow, By Its Judgment Dated 21 July 2014, Held That The Termination Was An Arbitrary Exercise Of Power And The Order Of The Learned Single Judge Setting Aside The Termination Did Not Call For Interference. The Issue As To Whether A Person, Who Is Employed In DRDA, Is A Government Servant Within The Meaning Of Rule 2 (a) Of The Rules Of 1974 Did Not Fall For Determination Before The Division Bench In Those Proceedings Since In Pursuance Of A Mandamus Issued By A Learned Single Judge In Earlier Proceedings For Consideration Of The Claim, The Applicant-petitioner Had Been Appointed On A Compassionate Basis, Which Was Terminated After A Lapse Of Six Months, Without Complying With The Principles Of Natural Justice. That Was Faulted By The Division Bench As Being An Arbitrary Exercise Of Power.
In Fact, The Issue As To Whether An Employee Of DRDA Is A Government Servant Within The Meaning Of Rule 2 (a) Is Not Fallen For Consideration Before The Division Bench Which, In The Circumstances, Did Not Notice The Judgment In Pitamber (supra). The Judgment Of The Division Bench Dated 21 July 2014 In Surya Bhan Singh ((supra) Is Not, Therefore, In Conflict With The Basic Principle Which Has Been Laid Down In Pitamber (supra) And Was Decided On Its Own Facts And Circumstances.
For These Reasons, We Are Of The View That The Learned Single Judge Was In Error In Allowing The Writ Petition And While Relying Upon The Earlier Judgments, Inter Alia, In Smt. Reeta Mishra (supra) And In Surya Bhan Singh (supra), Directing Fresh Consideration Of The Claim Of The Respondent For Compassionate Appointment.
We, Accordingly, Allow The Special Appeal And Set Aside The Impugned Judgment And Order Of The Learned Single Judge Dated 24 April 2015. In Consequence, Writ Petition No.23376 Of 2015, Shall Stand Dismissed. A Copy Of This Order Be Placed In Writ Petition No.23376 Of 2015.
However, There Shall Be No Order As To Costs

Go to Navigation