High Court · 2025 on 21 Jul 2025

Judgment

1. Heard Pt. S. Chandra, learned counsel for the petitioner, and Shri Sandeep Sharma, learned Standing Counsel for the respondent- State.

2. The above-mentioned two writ petitions have been filed by the petitioner, Smt. Saroj Bala. Since both the petitions are interconnected, they are being decided by a common judgment.

3. In Writ - A No. 5233 of 2003, the petitioner has made the following prayers: "A writ/order or direction in the nature of certiorari quashing order passed by O.P. dated 19.2.2003 contained in Annexure no X 2 (P.27) & order dt 9 Dec 2002 no.4561-63 NUUS afler summoning the same. B. A writ/ order or direction in the nature of mandamus commanding O.P. not to provide work on a limited contract basis or contract basis against provisions of dying and harness rules. C. A writ/order or direction in the nature of mandamus commanding the O.P. No.1 & 2 to provide employment under dying and harness rules to the petitioner. D. Any other relief which this Hon'ble court deemed fit and proper."

4. In Writ - A No. 2050 of 2022, filed during the pendency of the above petition, the petitioner has prayed for the following main reliefs: "I. Issue a Writ, Order or Direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties to sanction and to pay the regular pension to the petitioner against her Class-III cadre post of the Clerk of the Office of the State Civil Aviation Department of Uttar Pradesh as the petitioner has retired from service on 31-12-2019 after earlier getting appointment on compassionate grounds on 20-11-2002. Π. Issue a Writ, Order or Direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties to pay the regular pension to the petitioner regularly month to month since 01-01-2020 along with its due arrears with appropriate interest. III. Issue a Writ, Order or Direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties to pay the whole other admissible retirement dues of the petitioner such as the gratuity, general provident fund, leave encashment, insurance etc which are admissible for the petitioner as the retired Class-III cadre Clerk of the State Civil Aviation Department of Uttar Pradesh by treating to the petitioner as the Class-III cadre regular Clerk of the department." 3

Brief facts of the Case are that the petitioner, Smt. Saroj Bala, is the widow of Late Surendra Nath Upadhaya, who was serving as Office Superintendent in the office of Opposite Parties No. 2 and 3. He died in harness on 24.10.2002, leaving behind the petitioner, two unmarried daughters (Sandhya and Sapna, aged about 18 and 16 years respectively), a minor son (Alok, aged 14 years), and a 75-year-old feeble mother-in-law. After death of her husband, the petitioner applied for compassionate appointment under the applicable Dying- in-Harness Rules. However, she was offered a contractual appointment by letter dated 20.11.2002, which was subsequently cancelled by an order dated 09.12.2002. Aggrieved by order dated

9.12.2002 the petitioner filed Writ-A No. 5233 of 2003, in which this Court, vide interim order dated 25.08.2003 stayed the cancellation order dated 09.12.2002 and directed the petitioner to report for duty pursuant to the appointment letter dated 20.11.2002. The opposite parties were also directed to allow the petitioner to work and to consider her case for regular appointment on compassionate grounds.

6. The interim order was later modified vide order dated

22.10.2003 and another interim order dated 18.11.2004 has been passed. Thereafter, the petitioner submitted her joining report on

24.11.2004 to Opposite Party No. 3, which was accepted, and she was directed to report to the District Magistrate/Director, Uttar Pradesh 4 Flying Training Institute, Kanpur. She joined service accordingly on

24.11.2004 under the U.P. Flying Training Institute Recruitment Rules, 2001, on a five-year contractual basis.

7. Pursuant to a policy decision dated 08.06.2001, the Civil Aviation Department was reorganized, and employees were given options for placement. The petitioner opted for posting at various airstrips of the State. In line with this, the District Magistrate, Kanpur, acting as Director of the U.P. Flying Training Institute, passed an order dated 05.09.2008, and the petitioner submitted her joining report at the Faizabad Airstrip under the establishment of the District Magistrate, Faizabad. Her contractual appointment was extended from time to time, and she ultimately retired on 31.12.2019 after attaining the age of superannuation.

8. Thereafter, the petitioner filed Writ-A No. 2050 of 2022, seeking regular pension w.e.f. 01.01.2020, payment of all retiral benefits such as gratuity, GPF, leave encashment, insurance, etc., treating her as a regular Class-III employee of the Civil Aviation Department.

9. The petitioner also claimed parity with Mukesh Kumar, who was appointed on compassionate grounds as a Class-IV employee and Hansraj Sharma, dependent of Late Ram Narain Sharma, Senior Aircraft Mechanic, who was granted regular appointment under similar circumstances following directions of the Chief Secretary vide order dated 06.05.2015. 5

10. Learned counsel for the petitioner submits that the Department of Civil Aviation is a wing of the State Government, and its employees are treated as State Government employees. The petitioner's late husband, Surendra Nath Upadhaya, was also a State Government employee, serving as Office Superintendent at the time of his death.

11. He has further submitted that the case of the petitioner is squarely covered under the provisions of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying-in- Harness Rules, 1974 (hereinafter referred to as "1974 Rules"), which provide for substantive/regular appointments to dependents of deceased government employees. There can be no exception or deviation from the said Rules.

12. It is further submitted that the petitioner is similarly situated as Hansraj Sharma, who was granted regular appointment following the death of his father, a Senior Aircraft Mechanic in the Civil Aviation Department. Therefore, the petitioner is also entitled to be treated as regularly appointed from the date of her joining and deserves all consequential benefits. 6

13. It is next submitted that the petitioner is entitled for regular salary from the date of joining, pension from 01.01.2020 upon retirement, and all other post-retiral dues such as gratuity, GPF, leave encashment, and insurance, as admissible to a Class-III regular employee of the State Government.

14. It is also submitted that although the petitioner was continuously engaged and work was taken from her, the opposite parties have failed to pay her salary for the period between November 2010 to June 2016, a span of nearly six years, which is illegal and arbitrary.

15. Learned Standing Counsel, while opposing the writ petitions, has submitted that the petitioner was offered a contractual appointment on compassionate grounds under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying-in- Harness Rules, 1974, read with the U.P. Civil Aviation Department (U.P. Flying Training Institute) Recruitment Rules, 2001, as amended by The Uttar Pradesh Civil Aviation Department (U.P. Flying Training Institute) Recruitment (First Amendment) Rules, 2008, notified on

04.06.2008.

16. The petitioner's appointment was purely contractual in nature and governed by the above Rules. This fact is mentioned in the appointment order dated 20.11.2002, wherein she was offered the post 7 of Clerk, subject to the execution of a contract on a stamp paper worth Rs.100/-.

17. It is contended that in light of the above legal and procedural framework, the petitioner cannot claim regular appointment, as her appointment was conditional and contractual in terms.

18. So far as the case of Hansraj Sharma is concerned, he submitted that his appointment was granted pursuant to specific directions issued by the Hon’ble High Court in his individual case. Therefore, no parity can be drawn between the petitioner’s case and that of Hansraj Sharma.

19. Furthermore, the claim for regular appointment was specifically rejected vide order dated 15.11.2003 which was not challenged by the petitioner.

20. It is, thus, submitted that the petitioner is not entitled to claim any benefit of regular appointment or regular pension and is bound by the terms of her contractual engagement.

21. In rebuttal, learned counsel for the petitioner has submitted that perusal of the order dated 15.11.2003, which the respondents rely upon, clearly reveals that it merely recites the litigation history of the petitioner and goes on to justify the earlier contractual appointment made vide order dated 20.11.2002. The said order does not contain any independent reasoning or substantive adjudication rejecting the petitioner’s entitlement to regular appointment. It only states that there 8 is no occasion to alter the appointment order dated 20.11.2002. Therefore, it is contended that there was no necessity to challenge the said order dated 15.11.2003, as it did not decide any new issue, nor did it affect the petitioner’s substantive rights beyond what was already under challenge in Writ-A No. 5233 of 2003. Accordingly, the petitioner's claim for regularization of her appointment and consequential service and pensionary benefits continues to stand and is not barred by the said order.

22. Perused the record.

23. This Court while staying the operation of the order dated

09.12.2002, had directed the petitioner to report for duty in pursuance to the appointment order dated 20.11.2002. The opposite parties were further directed to allow the petitioner to work and pay her salary, and were also directed to consider her case for regular appointment on compassionate grounds. The operative part of the order dated

25.08.2003 is extracted below: "Admit. Notice on behalf of opposite parties has been accepted by Chief Standing Counsel, who prays for and is granted four weeks time to file counter affidavit. The petitioner has alleged that her husband expired on 24.10.2002 due to cancer disease. She has also alleged that a conditional appointment letter was issued to her on 20.11.2002, which was later on cancelled by the order dated 9.12.2002. 9 In view of the aforesaid facts the operation and enforcement of the order dated 9.12.2002 shall remain stayed and the petitioner is directed to report for duty in pursuance of the order dated

20.11.2002 within two weeks from today. The opposite parties shall allow the petitioner to work and pay salary. They shall also consider the case of the petitioner for regular appointment on compassionate ground. List this petition in the last week of October, 2003."

24. Subsequently, vide order dated 22.10.2003, the above order was modified to the extent that if any contract was signed by the petitioner, the same shall be subject to further orders of this Court. Ultimately, the petitioner, having no other option, joined the post.

25. The core issue before this Court is whether an appointment made under the U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974, can be made on a contractual basis, or whether such appointment must necessarily be treated as permanent.

26. This legal issue stands settled by a Division Bench of this Court in Ravi Karan Singh v. State of U.P. and others, 1999 SCC OnLine All 132, where it was held: "2. In our opinion, an appointment under The Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of The Dying in Harness Rule because such appointment is intended to provide 10 immediate relief to the family on the sudden death of the bread earner.

3. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules 1975 will not apply to such appointments."

27. The said judgment was delivered after considering prior judgments in Budhhi Sagar Dubey v. DIOS (1993) 1 UPLBEC 197, Dulab Yadav v. State of U.P. (1991) 2 UPLBEC 995, and Dhirendra Pratap Singh v. DIOS (1991) 1 UPLBEC 427. The legal position laid down in Ravi Karan Singh was further upheld by a Division Bench in Special Appeal No. 348 of 2002, Deputy Director General (NCC) and another v. Sanjai Kumar & another, wherein the Court found no reason to interfere with the single judge’s decision that relied on Ravi Karan Singh.

28. Again Division Bench of this Court in the case of Yogendra Ram Chaurasiya vs. State of U.P. and others reported in 2002 (5) AWC 3708 while relying on the judgement of Ravi Karan Singh has held as under:- "9. In view of the decision of this Court in the case of Ravi Karan Singh with which we respectfully agree, any appointment made under the provisions of Dying-in-Harness Rules is to be treated as a permanent appointment and not a temporary appointment. This is also clear from the Government order dated 23.1.1976 filed as Annexure-2 to the writ petition wherein it has been mentioned that the dependent of deceased employee appointed on compassionate 11 ground under the provisions of Dying-in-Harness Rules should not be retrenched even where the strength of the employee is being reduced. Thus, we hold that the appointment of the appellant-writ petitioner is to be treated as permanent appointment and not a temporary appointment. The nature of appointment, wi will not affect the writ petitioner, even if the appellant-writ petitioner has accepted the terms and conditions of the appointment which mentioned as a temporary appointment. The nature of appointment of the appellant-writ petitioner having been held to be permanent. appointment, the appellant writ petitioner is entitled to the constitutional safeguards as provided in Article 311 of the Constitution of India. In the present case, the procedure laid down in Article 311 (2) of the Constitution of India, has not been followed before terminating the services of the appellant writ as much as neither the petitioner, in as had been informed about appellantes levelled against him nor any enquiry was conducted before terminating his services nor he was given opportunity of hearing, nor the authorities have invoked any of the clauses mentioned in provision to Article 311 (2) of the Constitution of India for dispensing with the requirement of holding the enquiry."

29. The legal position is thus settled that appointments made under the 1974 Rules are to be deemed permanent, and the nomenclature or wording in the appointment letter will not affect the legal status of the appointment.

30. In the present case, the petitioner's appointment dated

20.11.2002, though labeled contractual, was made under the 1974 Rules, and by order dated 22.10.2003, it was made subject to further orders of this Court. The Court had specifically directed consideration for regular appointment. Accordingly, the petitioner’s appointment 12 shall be deemed regular, and she is entitled to all consequential benefits.

31. The submission of the opposite parties that the petitioner's appointment was governed by the Uttar Pradesh Civil Aviation Department Rules, 2001 read with the Uttar Pradesh Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974 is misconceived. Rule 2 of the 1974 Rules provides that they shall have overriding effect notwithstanding anything inconsistent contained in any other rules framed by the State Government. Since the 2001 Rules do not provide for regular or substantive appointment in such cases, they cannot be applied in a manner that would defeat the object and purpose of the 1974 Rules, which mandate such regular appointments for dependants of deceased government servants.

32. In light of the foregoing discussion and settled legal principles, the writ petition is allowed. The impugned order dated 09.12.2002 is hereby quashed. A writ of mandamus is issued commanding the opposite parties to treat the petitioner as regularly appointed on compassionate grounds in place of her deceased husband. The opposite parties shall compute the last pay drawn by the petitioner on the date of her superannuation i.e. 31.12.2019. Fix her pension accordingly and pay all admissible post-retirement benefits including gratuity, General Provident Fund (GPF), leave encashment, 13 insurance, etc., as applicable to regular Class-III State Government employees. The salary for the period 2010–2016 shall also be paid to the petitioner, if it is established that she had worked during that period. The compliance of this order shall be made within three months from the date of presentation of a certified copy of this judgment. Order Date :- 21.7.2025 Madhu D.R/P.S MADHU KUMARI High Court of Judicature at Allahabad, Lucknow Bench