The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 209 of 2023 Vivek Singh, aged about 32 years, son of late Parmanand Singh, resident of village-Banahappa, P.O.-Banahappa, P.S.-Mufassil, District- Hazaribagh, Jharkhand ..… Appellant Versus 1. State of Jharkhand through the Secretary, Drinking Water and Sanitization Department, having its office at Nepal House, P.O. and P.S. Doranda, District- Ranchi 2. The Joint Secretary, Government of Jharkhand, having its office at Project Bhawan, P.O. Dhurwa, P.S. Dhurwa, District Ranchi 3. The under Secretary, Government of Jharkhand, North Chottanapur Division, P.O. and P.S. Hazaribagh, District- Hazaribagh 4. The Deputy Commissioner, Hazaribagh, P.O. and P.S. Hazaribagh, District- Hazaribagh 5. The Chief Engineer, Drinking Water and Sanitization Department, Ranchi having its office at Nepal House, P.O. and P.S. Doranda, District- Ranchi 6. The Superintending Engineer, Drinking Water and Sanitization Department Ranchi having its office at P.O. + P.S. & Distt.- Hazaribagh 7. The Executive Engineer, Drinking Water and Sanitization Department, Ranchi having its office at P.O. + P.S. & Distt.- Hazaribagh. ..... Respondents --------- CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellant For the Respondent s --------- : Ms. Khalida Haya Rashmi, Advocate : Mr. Manoj Kumar, Advocate Mr. P.C. Singh, Advocate --------- 06/ Dated: 23.04.2024 Per, Sujit Narayan Prasad, J. I.A. No. 6390 of 2023: The instant interlocutory application has been filed for condonation of delay of 113 days. 2. 3. The reason has been assigned in the interlocutory application. Learned State counsel has submitted that limitation may be condoned and the matter will be heard on merits, so that the issue which has been raised in the instant appeal will be decided. 4. Considering the aforesaid submission, this Court is of the view that the period i.e. the delay of 113 days in filing the present appeal is required to be condoned. Accordingly, the delay is condoned. 5. Accordingly, the instant interlocutory application stands allowed and
Decision
disposed of. L.P.A. No. 209 of 2023 6. The instant appeal has been filed under clause 10 of the Letters Patent Appeal directed against the judgment dated 06.12.2022 passed by learned Single Judge in W.P.S. No. 1013 of 2012, whereby and whereunder the order as contained in Memo No. 3285 dated 18.06.2011 by which the request made for appointment on compassionate ground has been rejected, declined to be interfered with by the learned Single Judge. 7. The brief facts of the case as per prevailing in the writ petition is required to be reads as under: The case of the writ petitioner is that the father of the writ petitioner/appellant was initially appointed on the post of a Nalkup Khalasi in a work charged establishment on 06.02.1988 and thereafter the services of the appellant’s father was regularized vide office order no. 46 dated 28.08.2007and his services were regularized w.e.f. 06.02.1993, the said regularization of services of the writ petitioner was further approved by respondent no.5 vide letter contained in memo no. 559 dated 10.02.2009. Subsequently, father of the petitioner died in harness on 07.10.1998 and the mother of the petitioner made an application for the compassionate appointment on 29.05.1999 but the respondent paid no heed to it. Since, the very services of the father of the appellant /petitioner was regularized in 2009 with retrospective date i.e. on 06.02.1993, being a son an application has been made on 11.03.2011 for appointment on compassionate grounds. The case of the appellant/ petitioner was rejected being memo no. 3285 dated 18.06.2011 on the ground that since the father of the appellant/petitioner was died while working on work charged basis, and the services of the father 2 of the appellant/petitioner was regularized in 2009 w.e.f. 06.02.1993 as such the application for appointment on compassionate ground is not fit to be allowed. Being aggrieved with the said order the petitioner/ appellant had preferred writ petition being W.P. (C) No. 1013 of 2012, but the same has been rejected vide order dated 06.12.2022. Submission on behalf of the learned counsel for the appellant 8. Ms. Khalida Haya Rashmi, learned counsel appearing for the appellant writ petitioner has taken following ground: (i) The ground which has been taken by the authority rejecting the claim of the appellant/ writ petitioner is not sustainable in the eye of law, since, there cannot be any distinction between the appointment made under the work charged establishment and employee who is working in the daily rated capacity. Subsequent, thereto such work charged employee has been regularized will be employee who has regularized working in the daily rated capacity. The argument has been advanced that once an employee has been regularized even working at the work charged establishment, he is entitled for benefits including the right to consider for appointment on the compassionate ground. (ii) The father of the appellant/petitioner was also regularized vide office order 46 dated 28,08.2007 w.e.f. 06.02.1993, i.e. after his death and when the decision of regularization has been taken thereafter on the basis of approval of right for consideration of appointment on compassionate ground, the petitioner being the dependent of the deceased employee has made application for consideration of his case for appointment on compassionate 3 ground but the same has been rejected by carving out the distinction in work charged employee was subsequently has been regularized with the employee who has been regularized working in the daily rated capacity. 9. Learned counsel based upon the aforesaid ground has submitted the order impugned therefore passed by the Administrative Authority by the learned Single Judge suffers from error, hence, not sustainable in the eyes of law. Submission on behalf of the learned counsel for the respondent 10. Learned counsel for the State has submitted by defending the impugned order it has been submitted that the learned Single Judge has passed the order based upon the judgment passed by the Full Bench of this Hon’ble Court rendered in the case of Ram Prasad Singh (supra) wherein an identical issue has been decided and hence it cannot be said that the order impugned passed by the administrative authority of the learned Single Judge suffers from an error. It has been submitted that therefore the order passed by the learned Single Judge do not require any interference. Analysis 11. We have heard learned counsel for the parties perused the impugned order passed by the learned Single Judge. 12. It is evident from the factual aspect is that the father of the petitioner had inducted in service in the capacity of the work charged employee under the work charged establishment. He expired on 07.10.1998. However, the wife of the deceased employee had made claim for appointment on compassionate ground by filing application some time in the year 1999 but the same was refused to be granted on the ground that on the date of death, the deceased husband was under the work charged establishment. However, 4 the service of the deceased father of the petitioner was regularized by taking decision with regard by memo no. 559 dated 10.02.2009 w.e.f. 06.02.1993. 13. The appellant/petitioner claiming himself to be one of the dependant has made application for reconsideration of the case of an appointment on compassionate ground on the ground that once the deceased father worked as a regularized employee since 06.02.1993 then he is to be considered on the regular establishment and as such under the scheme it was invoked during the relevant time i.e. the Circular dated 05.10.1990 is entitled for the consideration for appointment on compassionate ground. But such claim has been rejected by the authority on the ground that although regularization is there but the deceased father of the appellant was under the work charged establishment. As such he cannot be compared with the regularized employee who has been regularized while working as daily rated capacity. The said order was challenged by filing writ petition. The learned Single Judge has called upon the State. The State has relied upon the judgment rendered by the Full Bench of this Court in Ram Prasad Singh versus State of Jharkhand reported in (2005) 3 JLJR 38 where it has been held that the dependent of the work charged employee who died in harness cannot be held entitled to claim appointment on compassionate ground. 14. The learned Single Judge after taking into consideration the ratio laid down by the Full Bench of this Court in the case of Ram Prasad Singh (supra) has declined to interfere with the impugned order by dismissing the subject matter of the present appeal. 15. This Court has examined the issue of propriety of the impugned order needs to be referred herein, the two facts of the matter i.e. one of the issue of the daily rated employee and another issue of regularization of the work 5 charged employee, working under the work charged establishment. So far as the employee working as daily rated employee who are to be regularized and who had been regularized either in pursuance to the subject quoted by the State of Jharkhand, some time in the year 2009 by giving preference to the daily rated employee or subsequent thereto, based upon the judgment passed by Constitution Bench of the Hon’ble Apex Court rendered in the case of State of Karnataka vs. Umadevi (3) reported in (2006) 4 SCC 1. 16. The decision appears to be taken after pronouncement of the judgment rendered in the case of Umadevi (3) (supra), the decision of regularization has been taken by respective states. The State Government in view of the observation so far made in para 53 of the aforesaid judgment, wherein the condition has been stipulated by carving out distinction in between the irregular appointment and the illegal appointment. The exception for regularization has been taken away from the purview of the case when the appointment is found to be illegal. However, by exercising one time measures if the appointment has been found to be irregular and if the State wishes to take service of those employees, were to be regularized, subject to the condition that if such daily rated employee has continued in service continuously for 10 years without any aid of any order passed by the Court of law and the 2nd condition is that for the appointment must be against the duly sanctioned post. Such exception has only been given for regularization of the irregular government employee. Irregular appointment and illegal appointment has also been discussed in the said paragraph. 17. It is evident from the consideration so made in carving or distinction in between irregular and illegal appointment, the irregular appointment has been 6 said to be an appointment if the appointment has been made without any advertisement or any irregularity whatsoever but appointment which has been said to be illegal appointment if made against the post not having been sanctioned or the defect, if not curable. 18. The purpose of the reference of the judgment rendered by Hon’ble Apex Court in the case of Umadevi (supra) is that the argument has been advanced on behalf of the appellant that once the decision of regularization has been taken then there cannot be distinction for the purpose of providing the subsequent benefits like that of the pardon of the irregular appointment. It would be evident from the factual aspect involved in the Umadevi (supra) that the primary issue in that case is to put restriction in the back door entry of the class-IV category employee. But the said judgment does not speak about with respect to the appointment made under the work charged establishment. The work charge establishment has been defined in the Bihar P.W.D. Code, for reference the same is being referred herein. “59. Works establishment will include such establishment as in employed upon the actual execution, as distinct from the general supervision of a specific work or of sub-works of a specific project or upon the subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-work. When employees borne on the temporary establishment are employed on work of this nature their pay should, for the time being, be charged direct of works.” 19. It is evident from the aforesaid distinction of the work charge establishment that the appointment is to be made for a particular purpose under a project /scheme. The issue cropped up before this Court as to what legal rights of the work charged establishment is there. Before proceeding to refer the aforesaid judgment, this Court needs to refer herein that there is a Circular issued in the year 1949 taking care of the employee working under the work charged establishment. 7 20. It was not having in statutory force but since the service of the work charged engage was required after India became independent, as such, the same has been considered not inconsistent to the constitutional mandate and accept in view of the provision of Article 13 (1) of the Constitution of India and thereby the circular has taken the shape of the rule having been statutory force. 21. In the judgment of Full Bench rendered in the case of Ram Prasad Singh (supra), the issue of regularization of work charged employee was one of the issues as also the benefit of pension, whether it is admissible for the appointment on compassionate ground is to be given. The full Bench of this Court while taking into consideration the implication of the Rule 59 when it has been provided that the work charged employee, if found to have worked continuously for 5 years then as a Rule the services of such employee is regularized. But consideration was given by the Full Bench of this Hon’ble Court regarding the issue of withholding the pensionary benefit where it has been held that once the employee has been inducted in the regular establishment then the benefit of pension cannot be taken away but so far as the issue of appointment on compassionate ground is concerned, it has been decided that since the post under which the concerned employee were working is not under the regular establishment rather under the work charged establishment having not been sanctioned then how the benefit of appointment on compassionate ground is to be given. Since, the appointment on compassionate ground is to be given under the scheme, if an employee who died in harness while working in the substantive post then the dependent of the deceased as per the scheme will be entitled for consideration for appointment on compassionate ground subject to 8 the fulfillment of general condition, if any. But, work charged employee since having not under the regular /permanent establishment and therefore the decision has been taken in the said judgment that the concerned employee who have been regularized while working under the work charged establishment, who retired or died in harness the said post will be said to be stand abolished. Meaning thereby, the said post will not be filled up by inviting any application from anybody. Therefore, the full Bench of this Hon’ble Court has taken the decision by answering the issue regarding the consideration of appointment of dependent on compassionate ground who was working under the work charged establishment but regularized due to the reason that when the decision has been taken by the judgment passed by the full Bench of this Court in the case of Ram Prasad Singh, that the post itself stand abolished after death or resignation of concerned employee as the case may be. Therefore, the ratio has been laid down that in the case of Ram Prasad Singh (supra) the dependent is not to be considered for appointment on compassionate ground, relevant para 63, 64, 65 and 67 of the said judgment is being referred herein: taken care of by “63. The compassionate appointment, thus, may not be a condition of service or a dependant of a deceased Government employee, who claims for such benefit but certainly with a condition of service of the employee, who know that the family in the cases of hardship, if he dies during the service career, will be the employer by providing compassionate appointment to a dependant to enable the family of the deceased employee to tide over the sudden crisis. 64. Mere death of an employee does not entitle his family to claim such source of livelihood. Admittedly, work-charged employees have no right to continue in service of the State even till the age of superannuation. There is no guarantee of job of a work-charged employee, as his job comes to an end on completion of work. In such a situation, a dependant cannot claim that the family of the employee will face economic ruination, the job having been suddenly taken away. 65. It has already been noticed that the State Government vide its Resolution No. 3/PAR-03/51/88-5074, dated 20th September, 1990 decided to amend the P.W.D. Code and to stop appointment in the work-charged establishment. Under 9 in in included the work-charged establishment, statutory Rule 1949 and as per Note-3 below Rule 59, the post borne in the work-charged establishment, which is required throughout the year or for a long and indefinite period, should the permanent be made permanent and establishment. In such a situation, if the post of work-charged establishment stands abolished by transferring the post in the permanent (regular) establishment and if there is prohibition the of appointment question of compassionate appointment of a dependant of deceased work-charged employee does not arise. 67. In the circumstances there being a ban on the appointment in the work-charged establishment, made since 20th September, 1990, as the work-charged establishment is temporary in nature, the dependant of a deceased work- charged employee has no right to claim compassionate appointment. The decision, given by the learned Single Judge(s) the case of Smt. Meera Devi (supra), Lali Sinha (supra) and Urmila Devi (supra), therefore, cannot be held to be a good law.” in 22. Averting to the factual aspect of the present case, it is an admitted case of the appellant/writ petitioner that the deceased- father of the petitioner was working under the work charged establishment because the work has been mentioned in Annexure-I “karyabharit karmchari”. 23. This Court in view of the discussions made herein above, we are taking into consideration the admitted fact of the petitioner that his father was working under the work charged establishment has been regularized and not worked as daily rated employee and subsequently regularized. Hence, the question of consideration for appointment on compassionate ground is to be considered on the basis of the judgment rendered by Full Bench of this Court in the case of Ram Prasad Singh (supra). 24. It is further need to refer herein for the reason hereinabove the judgment rendered by the Hon’ble Apex Court in the case of Umadevi (supra) deals with the issue of daily rated employee and not work charged employee. 25. The learned Single Judge has appreciated the aforesaid fact and applying the speculation by this Court in the case of Ram Prasad Singh (Full Bench) (supra) has declined to interfere with the impugned order passed by 10 the administrative authority while the ground taken that it is the father of the petitioner since he was working under the work charged establishment and hence the moment he died, the post stand abolished. 26. Therefore, this Court is of the view that no interference is required in the impugned order dated 06.12.2022, passed by the learned Single Judge in W.P.(S) No. 1013 of 2012. 27. Based upon the discussions made herein above, we are of the view that impugned order need not to be interfered with. 28. Accordingly this Letters Patent Appeal stands dismissed. 29. Pending I.A., if any, stands disposed of. (Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Pramanik/suman AFR 11