1

Court No. 24

Writ Petition No. 133 (SS) of 2009

Ashish Kumar Sharma … Petitioner

Versus

The District Judge, Sitapur and another … Opposite parties

-----------

Hon'ble Rajiv Sharma, J.

Heard Mr. Qamrul Hasan, learned Counsel for the petitioner

and Mr. K. D. Shahi, learned Standing Counsel.

Briefly stated the facts are that the petitioner's father,

namely, Vinod Kumar Sharma died on 21.9.2005, when he met
with an accident. At the relevant time, petitioner's father was
holding the post of Ahalmad to IV Additional Civil Judge (S.D.),
Sitapur. The petitioner moved an application for compassionate
appointment and completed all the requisite formalities. By the
order dated 11.4.2007, the petitioner was given appointment on
the post of Paid Apprentice on Temporary Basis and on a fixed pay
of Rs.3,050/- per month.

As the appointment was temporary in nature, which cannot

be granted under the Dying-in-Harness Rules, the petitioner has
filed the instant writ petition inter alia on the ground that
appointment under the Rules is permanent in nature and as such,
the opposite parties committed a grave illegality in giving
temporary appointment and that too on fixed pay. The petitioner
has also made a representation in this regard requesting the
authority concerned to provide him permanent appointment and
in the pay scale.

Counsel for the petitioner has argued that neither the

representation of the petitioner was considered nor the petitioner
has been given regular appointment. The benefit of medical leave,
deduction of G.P.F. and annual increment, is also being denied. He
has further submitted that on account of fixed pay appointment,
he has been placed below the persons who were appointed on
 2

class III posts, after the appointment of the petitioner. Thus, the
petitioner is suffering continuously and is being denied the
legitimate claim for which he is legally entitled. Lastly, it has been
argued that the action of the respondents is against the dictum
laid down by this Court in various decisions.

Standing Counsel has argued that after the death of the

petitioner's father, the petitioner was given appointment on the
post of Paid Apprentice in Class III Cadre. The benefits of medical
leave, annual increment and seniority list are available to the
regular employees only and the petitioner is still to be regularized.
He, however, submitted that the service book of the petitioner has
been prepared and the G.P.F. is not being deducted in view of the
Government Order dated 7.4.2005. The matter of direct
recruitment in class III cadre is sub judice before this Court.
Appointment of the petitioner on the post of Paid Apprentice on a
fixed pay cannot be said to be illegal. It has also been indicated
that the petitioner is not senior to the newly promoted class III
employees till the date of promotion of the Class IV employees in
class III posts as the petitioner was not promoted on the post of
Clerk, which can be made only as per provisions of Rule 20 of U.
P. Subordinate Court Ministerial Establishment Rules, 1947.

The Uttar Pradesh Recruitment of Dependants of

Government Servants Dying in Harness Rules, 1974 has been
framed in exercise of the powers conferred by Article 309 of the
Constitution of India. The Uttar Pradesh Recruitment of
Dependents of Government Servants under 1974 Rules are
special set of rules, which have been made for providing a source
of livelihood, and to give some respite to the members of the
deceased Government servant’s family at a time when the family
is suddenly struck with a calamity where the sole bread earner
dies. The overall idea and concept of these rules is to keep the
family in main streamline of the society for which economic
security and social status is to be provided by the State
Government.

Initially these Rules were applicable to the Government

servant only. Lateron, the same were made applicable to the
 3

teachers and staff of the Colleges and Primary School.

Rule 2 is the definition clauses and defines the Government

Servant, deceased government servant and the family. Rule 2(C)
where the word ‘family’ has been defined reads as under:-

“family” shall include the following relations of the deceased

Government servant:

(i) wife or husband:

(ii) sons:
(iii) unmarried and widowed daughters:

It is pertinent to mention that Dying in Harness Rules, 1974

were amended from time to time and by Uttar Pradesh
Recruitment of Dependents of Government Servants Dying in
Harness (Sixth Amendment) Rules, 2001, the relations included in
the family of the deceased government servant have been
described, which reads as under;-

1. Wife or Husband
2. son
3. Unmarried daughters and widowed daughters.
Dependant unmarried brother, unmarried sister and
widowed mother of the deceased government
servant, if he was unmarried.

Rule 3 of the said rules makes these rules applicable to the

recruitment of dependents of the deceased government servants
to public services and posts in connection with the affairs of the
State of Uttar Pradesh, except services and post which are within
the purview of the Uttar Pradesh Public Service Commission.

Rule 4 gives an overriding effect to those rules by providing

that they shall have effect notwithstanding anything to the
contrary contained in any rules, regulations or orders in force at
the commencement of those rules.

Rule 5 of the 1974 Rules deals with the recruitment of the

member of the family of the deceased on a suitable post.

On June 28th ,2006 the State Government brought Uttar

Pradesh Recruitment of Dependents of Government Servants
Dying in Harness (Seventh Amendment) Rules, 2006 whereby in
 4

Rule 5 it has been inserted in clause (3) and (4) as under:-

(3) Every appointment made under sub rule (1) shall be

subject to the condition that the person appointed
under sub-rule (1) shall maintain other members of
the family of deceased Government servant, who
were dependent on the deceased Government servant
immediately before his death and are unable to
maintain themselves.

(4) Where the person appointed under sub-rule(1)

neglects or refuses to maintain a person to whom he
is liable to maintain under sub-rule (3), his service
may be terminated in accordance with the Uttar
Pradesh Government Servant ( Discipline and Appeal)
Rules, 1999, as amended from time to time.”

Rule 6 provides that an application for appointment under

these Rules shall be addressed to the appointing authority in
respect of the post for which appointment is sought.

Rule 7 deals with procedure when more than one member of

the family seek employment, whereas relaxation from age and
other requirements have been enumerated in Rule 8.

Thus, from the aforesaid provisions, it is clear that an

exceptional process for appointment has been provided in special
circumstances. When in the past the controversy arose as to
whether the appointment under dying-in-harness rules can be
given on daily wage or ad hoc or fixed salary appointment, this
Court held that the appointment under the said Rules is
permanent in nature and even gone to the extent in saying that if
there is no post available at the relevant time, supernumerary
post shall be created.

In the case of Ravi Karan Singh Versus State of U. P.

and others [1999 (17) LCD 641], a Division Bench of this
Court has observed that an appointment under Dying-in-Harness
Rules has to be made as a permanent appointment because such
appointment is intended to provide immediate relief to family on
the sudden death of bread earner.

It is settled law that the appointment made under the

provisions of U. P. Recruitment of Dependents of Government
 5

Servants (Dying-in-Harness) Rules, 1974 are of permanent nature

as has been held by a Division Bench of this Court in Ram
Chandra Versus State of U. P. and others [(2008) 2 UPLBEC
1431].

Another Division Bench of this Court, in the cases of Budhi

Sagar Dubey v. D. O. I. S. [(1993) 1 UPLBEC 197], Gulab
Yadav v. State of U. P. and others [(1991) 2 UPLBEC 995]
and Dhirendra Pratap Singh v. D.I.O.S. And others [(1991)
1 UPLBEC 427] held that an appointment under Dying-in-
Harness Rules is a permanent appointment.

Relying upon the aforesaid proposition of law, this Court in

the case of Kishal Lal Versus State of U. P. and others [2007
(25) LCD 469] held as under:-

“It is settled law that appointment of dependent

of regular employee on compassionate ground should
be done against the regular vacancy and in case
regular vacancy is not available supernumerary post
should be created for appointment on compassionate
ground. In the present case the petitioner has been
appointed as daily wager by the authorities, which at
the face of record seems to be not sustainable under
law.”

It may be mentioned that the respondents have taken

contradictory stand in the counter affidavit. At one place, it has
been said that benefit of leave and seniority etc. are not provided
to the petitioner as he is not a regular employee. On the contrary,
in paragraph 22, they have indicated that the petitioner's services
are regular in nature. Undisputedly, the petitioner is being paid
fixed salary. The respondents have also taken a plea that there
was litigation on Class III post and the matter was sub judice and
as such, he was not given appointment on the post of
Clerk/Copyist. This plea is wholly untenable as this Court has
already held that if there is no post available, the supernumerary
post would have been created. It is unfortunate that the opposite
parties have not taken into consideration the proposition of law
laid down in the aforesaid cases. In view of settled provisions of
law, appointment of the petitioner on the post of Paid Apprentice
on Temporary Basis and on a fixed pay of Rs.3,050/- per month
 6

seems to be not sustainable.

Accordingly, a writ in the nature of Mandamus is issued

commanding the opposite parties to pass fresh order appointing
the petitioner on class III post from the date of his recruitment as
regular employee, with all consequential benefits keeping in view
the aforesaid observations, within one month, from the date of
receipt of a certified copy of this order. Further, it is provided that
the difference of salary shall be paid within three months from
date a certified copy of this order is presented before the
competent authority. Under the facts and circumstances of the
case, parties shall bear their own costs.

Dt.10.2.2010
Lakshman/