Court in the case of State of U.P. and others vs Division Bench of this Court, wherein it has been held

rejected on the ground that her husband, namely, Sri Netra Pandey, had been appointed as a daily wager on

04.07.1991 and, as he had never been regularized, consequently, he died while working as a daily wager, and in terms of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the "Rules, 1974"), the dependent of a daily wager is not entitled to compassionate appointment.

3. At the very outset, learned counsel for the petitioner prays that so far as prayer No.(iii) is concerned, he may be permitted to withdraw the said prayer with liberty to file a fresh petition.

4. Accordingly, prayer No.(iii) is dismissed as withdrawn with the liberty as prayed.

5. Learned counsel for the petitioner contends that the husband of the petitioner was appointed as a daily wager on 04.07.1991 under respondents No.3 and 4. He had also been granted the minimum pay scale and died in harness on 05.12.2023, and thus, at the time of his death, had rendered more than 32 years of service.

6. The matter pertaining to the regularization of the husband of the petitioner was twice sent by respondents No.3 and 4, as would be apparent from a perusal of the orders dated 02.12.2008 and 17.02.2014, copies of which are annexures-3 and 4 to the petition, respectively.

7. In the order dated 02.12.2008, respondents No. 3 and 4 had sent the information as asked for by the Director, Local Bodies, for the purposes of regularization, whereby the number of employees working on daily wages had been indicated, and it was also indicated that an amount of rupees two lacs per year would be required in case the said persons are regularized, and that the Nigam is perfectly capable of generating funds from its own sources in order to bear the said additional burden.

8. However, no action was taken for the purpose of regularization of the husband of the petitioner on account of the fact that no sanctioned post was available, as stated by the learned counsel appearing for respondents No.3 and 4.

9. Again, by means of the order dated 17.02.2014, information pertaining to the persons eligible for regularization was sent. In the said order, the name of the petitioner's husband duly found place, but again no action was taken by the Competent Authority for the purpose of regularization of the service of the husband of the petitioner, with the result that he died as a daily wager. Now, the respondents, by means of the impugned order dated 30.11.2024, have rejected the claim of the petitioner for compassionate appointment by indicating that under the Rules, 1974, the dependent of a daily wager is not entitled to be appointed on compassionate grounds.

10. Reliance has been placed by the learned counsel for the petitioner on the Division Bench judgment of this Court in the case of State of U.P. and others vs. Kuldeep Thakur, [2017 (4) ADJ 94], to contend that this aspect of the matter has been considered by the Division Bench of this Court, wherein it has been held that when the matter pertaining to the regularization of the deceased was under consideration and he died even before the regularization order could see the light of day, in such circumstances, the State Government or its authorities are under an obligation to consider such a claim and to award any consequential benefits if the process had been set into motion, i.e., in case the said person had been regularized.

11. On the other hand, Sri Virendra Singh, learned counsel appearing for respondents No. 3 and 4, states that although the necessary information as had been called for by the Director, Local Bodies, and by the State Government had been sent, no final orders were passed by the State Government and, even otherwise, no post had been sanctioned. Consequently, the husband of the petitioner was not regularized and, as such, he died while working as a daily wager.

12. Placing reliance on the Full Bench judgment of this Court in the case of Pawan Kumar Yadav vs. State of U.P. and others, 2010 (8) ADJ 664, the further argument of learned counsel for the respondents is that the Full Bench has held that a daily wager, who is not holding any post, whether substantive or temporary, and even if he was working for more than three years, will not be a "Government Servant" within the meaning of Rule 2(a) of the Rules, 1974, and thus, his dependents, on his death in harness, are not entitled to compassionate appointment, and as such, no error has been occasioned by respondents No. 3 and 4 in rejecting the claim of the petitioner for compassionate appointment.

13. Heard the learned counsel for the parties and perused the record.

14. From the arguments as raised by the learned counsel appearing on behalf of the contesting parties and a perusal of the records, it emerges that the husband of the petitioner, namely Sri Netra Pandey, had been appointed as a daily wager on 04.07.1991 and died in harness without being regularized on

05.12.2023, i.e., after having rendered more than 32 years of service.

15. The case for regularization of Sri Netra Pandey appears to have been processed by the respondents, as emerges from a perusal of the orders dated 02.12.2008 and 17.02.2014, but the regularization of the husband of the petitioner could not see the light of day on account of the said proposal not being approved by the State Government and no post being available with respondents No. 3 and 4 on which the husband of the petitioner could have been regularized.

16. However, there is no denial of the fact that by means of orders dated 02.12.2008 and 17.02.2014, the husband of the petitioner had been found fit for being regularized, but on account of the aforesaid reasons, the regularization order could not be issued.

17. Be that as it may, the fact of the matter remains that at the time of his death, the husband of the petitioner was only working as a daily wager, but as already indicated above, twice his case had been processed for being regularized, but no regularization order was issued.

18. Whether in such circumstances the respondents are within their rights to still consider Sri Netra Pandey as a daily wager ?

19. The said question is no longer res integra, having been considered by the Division Bench of this Court in the case of Kuldeep Thakur (supra), wherein the Division Bench, after considering the Full Bench judgment of Pawan Kumar Yadav (supra), has held as under :— "7. The order which was impugned in the writ petition refusing to consider the claim of the respondent petitioner dated 11.04.2016 simply states that the claim of the respondent petitioner was not found feasible as per the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. The name of the petitioner's father has been mentioned as a daily wager but no reason has been given for declining the request. There is no consideration about the claim of the regularization of the father of the respondent petitioner. The order dated 11.04.2016 is thus clearly unsustainable in law.

8. The issue and circumstances of the nature presently involved do not appear to have been the matter of reference in the case of Pawan Kumar Yadav (supra). All the cases, the illustration whereof was given in para-9 of the Full Bench judgment, does not appear to be similar on facts as presently involved. However, in the present case, this claim has to be looked into from the point of view that the father of the respondent petitioner was entitled for being regularized in view of the terms and conditions of the Government order dated 13.08.2015. This consideration process had already commenced and the name of the father of the respondent petitioner had already been forwarded but no decision had been taken, and in between in October, 2015, the father of the respondent petitioner died. Learned counsel for the respondent therefore has pressed into service the judgment in the case of Prem Ram v. Managing Director, Uttarakhand Pay Jal & Nirman Nigam, Dehradun and others, 2015 (4) ESC 571 (SC), to urge that the termination of the employment or the death of the employee would not make any difference with regard to consideration of regularization in the above circumstances. We have examined paragraph-9 of the said judgment where also the employee had already retired from service yet the Apex Court came to the conclusion that since the tenure of the person who was claiming such benefit had to be regularized, then in that event the Apex Court in view of the Articles 14 and 16 of the Constitution of India having been violated, ruled that such benefit would also accrue to the said claimant and consequently, issued direction for his consideration though he had retired from service. In that case similarly placed junior employees had been regularized.

9. Applying the said analogy, the claim of the father of the respondent petitioner had already been forwarded and he was very much alive when the Government order dated 13.08.2015 was issued. In such a situation the State Government or its concerned department ought to have considered the claim of the respondent petitioner for regularization and then could have proceeded to determine as to whether the respondent petitioner was entitled to any benefit or not. In our opinion, the fortuitous circumstance of the death of the father of the respondent petitioner does not absolve the State Government of its obligation to consider the claim of regularization of the father of the respondent petitioner. There can be a case where the consideration has been made and the regularization accepted but before the order reaches a man dies or his death takes place in the near vicinity or simultaneously with regularization. In this situation, the claim of regularization of the deceased employee does not remain an option to be ignored by the State Government. The State Government or its authorities are under an obligation to consider such a claim and to award any consequential benefits if the process has been set into motion as has happened in the present case. Once the father of the respondent petitioner is found entitled to be regularized as on the date of the Government order dated 13.08.2015, on which date he was admittedly alive, then in that event the claim of the respondent petitioner can also be considered.

10. The consideration of the right of being regularized by operation of law while in force had already accrued in favour of the father of the respondent petitioner, and his death in between further gave rise to the expected consequential claim of compassionate appointment of the petitioner, provided his father's services were declared regular. The consideration of such right, whether had accrued, does not get eclipsed nor could it be abandoned. If the consideration results in the services of the petitioner's father becoming regular, then the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be an impediment for the respondent petitioner to be considered for compassionate appointment. The appellant State and it's authorities therefore cannot escape this exercise and defeat the right of consideration by their inaction or the absence of timely and prompt action. Such exercise of consideration will not evaporate because of untimely death which is a fortuitous circumstance so as to result in any advantage to the State.

12. Consequently, we modify the judgment dated 22.11.2016 to the extent that it shall be open to the appellant State to consider the status of regularization of the father of the respondent and then proceed to take an appropriate decision with regard to the claim of for compassionate the respondent petitioner appointment in the light of the observations made hereinabove."

20. Accordingly, when the facts of the instant case are seen in the light of the law laid down by this Court in the case of Kuldeep Thakur (supra), it clearly emerges that the Division Bench of this Court has held that where a case of a daily wager was being processed for regularization, but before an order could be passed in this regard, the said daily wager died, then the ratio of the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be attracted and that the respondents are required to consider the status of regularization of the deceased and thereafter proceed to take an appropriate decision with regard to the claim of the dependent for compassionate appointment.

21. Keeping in view the aforesaid, the writ petition is allowed. Consequently, the order impugned dated

30.11.2024, a copy of which is annexure-1 to the petition, is set aside.

22. A writ of mandamus is issued commanding the respondent No.3 to consider the claim of the petitioner for compassionate appointment keeping in view the discussion made above.

23. Let such consideration be made within a period of eight weeks from the date of receipt of a certified copy of this order. [Abdul Moin, J.] Order Date :- 22.8.2025 cks/- CHANDRA KANT SINGH High Court of Judicature at Allahabad, Lucknow Bench

rejected on the ground that her husband, namely, Sri Netra Pandey, had been appointed as a daily wager on

04.07.1991 and, as he had never been regularized, consequently, he died while working as a daily wager, and in terms of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the "Rules, 1974"), the dependent of a daily wager is not entitled to compassionate appointment.

3. At the very outset, learned counsel for the petitioner prays that so far as prayer No.(iii) is concerned, he may be permitted to withdraw the said prayer with liberty to file a fresh petition.

4. Accordingly, prayer No.(iii) is dismissed as withdrawn with the liberty as prayed.

5. Learned counsel for the petitioner contends that the husband of the petitioner was appointed as a daily wager on 04.07.1991 under respondents No.3 and 4. He had also been granted the minimum pay scale and died in harness on 05.12.2023, and thus, at the time of his death, had rendered more than 32 years of service.

6. The matter pertaining to the regularization of the husband of the petitioner was twice sent by respondents No.3 and 4, as would be apparent from a perusal of the orders dated 02.12.2008 and 17.02.2014, copies of which are annexures-3 and 4 to the petition, respectively.

7. In the order dated 02.12.2008, respondents No. 3 and 4 had sent the information as asked for by the Director, Local Bodies, for the purposes of regularization, whereby the number of employees working on daily wages had been indicated, and it was also indicated that an amount of rupees two lacs per year would be required in case the said persons are regularized, and that the Nigam is perfectly capable of generating funds from its own sources in order to bear the said additional burden.

8. However, no action was taken for the purpose of regularization of the husband of the petitioner on account of the fact that no sanctioned post was available, as stated by the learned counsel appearing for respondents No.3 and 4.

9. Again, by means of the order dated 17.02.2014, information pertaining to the persons eligible for regularization was sent. In the said order, the name of the petitioner's husband duly found place, but again no action was taken by the Competent Authority for the purpose of regularization of the service of the husband of the petitioner, with the result that he died as a daily wager. Now, the respondents, by means of the impugned order dated 30.11.2024, have rejected the claim of the petitioner for compassionate appointment by indicating that under the Rules, 1974, the dependent of a daily wager is not entitled to be appointed on compassionate grounds.

10. Reliance has been placed by the learned counsel for the petitioner on the Division Bench judgment of this Court in the case of State of U.P. and others vs. Kuldeep Thakur, [2017 (4) ADJ 94], to contend that this aspect of the matter has been considered by the Division Bench of this Court, wherein it has been held that when the matter pertaining to the regularization of the deceased was under consideration and he died even before the regularization order could see the light of day, in such circumstances, the State Government or its authorities are under an obligation to consider such a claim and to award any consequential benefits if the process had been set into motion, i.e., in case the said person had been regularized.

11. On the other hand, Sri Virendra Singh, learned counsel appearing for respondents No. 3 and 4, states that although the necessary information as had been called for by the Director, Local Bodies, and by the State Government had been sent, no final orders were passed by the State Government and, even otherwise, no post had been sanctioned. Consequently, the husband of the petitioner was not regularized and, as such, he died while working as a daily wager.

12. Placing reliance on the Full Bench judgment of this Court in the case of Pawan Kumar Yadav vs. State of U.P. and others, 2010 (8) ADJ 664, the further argument of learned counsel for the respondents is that the Full Bench has held that a daily wager, who is not holding any post, whether substantive or temporary, and even if he was working for more than three years, will not be a "Government Servant" within the meaning of Rule 2(a) of the Rules, 1974, and thus, his dependents, on his death in harness, are not entitled to compassionate appointment, and as such, no error has been occasioned by respondents No. 3 and 4 in rejecting the claim of the petitioner for compassionate appointment.

13. Heard the learned counsel for the parties and perused the record.

14. From the arguments as raised by the learned counsel appearing on behalf of the contesting parties and a perusal of the records, it emerges that the husband of the petitioner, namely Sri Netra Pandey, had been appointed as a daily wager on 04.07.1991 and died in harness without being regularized on

05.12.2023, i.e., after having rendered more than 32 years of service.

15. The case for regularization of Sri Netra Pandey appears to have been processed by the respondents, as emerges from a perusal of the orders dated 02.12.2008 and 17.02.2014, but the regularization of the husband of the petitioner could not see the light of day on account of the said proposal not being approved by the State Government and no post being available with respondents No. 3 and 4 on which the husband of the petitioner could have been regularized.

16. However, there is no denial of the fact that by means of orders dated 02.12.2008 and 17.02.2014, the husband of the petitioner had been found fit for being regularized, but on account of the aforesaid reasons, the regularization order could not be issued.

17. Be that as it may, the fact of the matter remains that at the time of his death, the husband of the petitioner was only working as a daily wager, but as already indicated above, twice his case had been processed for being regularized, but no regularization order was issued.

18. Whether in such circumstances the respondents are within their rights to still consider Sri Netra Pandey as a daily wager ?

19. The said question is no longer res integra, having been considered by the Division Bench of this Court in the case of Kuldeep Thakur (supra), wherein the Division Bench, after considering the Full Bench judgment of Pawan Kumar Yadav (supra), has held as under :— "7. The order which was impugned in the writ petition refusing to consider the claim of the respondent petitioner dated 11.04.2016 simply states that the claim of the respondent petitioner was not found feasible as per the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. The name of the petitioner's father has been mentioned as a daily wager but no reason has been given for declining the request. There is no consideration about the claim of the regularization of the father of the respondent petitioner. The order dated 11.04.2016 is thus clearly unsustainable in law.

8. The issue and circumstances of the nature presently involved do not appear to have been the matter of reference in the case of Pawan Kumar Yadav (supra). All the cases, the illustration whereof was given in para-9 of the Full Bench judgment, does not appear to be similar on facts as presently involved. However, in the present case, this claim has to be looked into from the point of view that the father of the respondent petitioner was entitled for being regularized in view of the terms and conditions of the Government order dated 13.08.2015. This consideration process had already commenced and the name of the father of the respondent petitioner had already been forwarded but no decision had been taken, and in between in October, 2015, the father of the respondent petitioner died. Learned counsel for the respondent therefore has pressed into service the judgment in the case of Prem Ram v. Managing Director, Uttarakhand Pay Jal & Nirman Nigam, Dehradun and others, 2015 (4) ESC 571 (SC), to urge that the termination of the employment or the death of the employee would not make any difference with regard to consideration of regularization in the above circumstances. We have examined paragraph-9 of the said judgment where also the employee had already retired from service yet the Apex Court came to the conclusion that since the tenure of the person who was claiming such benefit had to be regularized, then in that event the Apex Court in view of the Articles 14 and 16 of the Constitution of India having been violated, ruled that such benefit would also accrue to the said claimant and consequently, issued direction for his consideration though he had retired from service. In that case similarly placed junior employees had been regularized.

9. Applying the said analogy, the claim of the father of the respondent petitioner had already been forwarded and he was very much alive when the Government order dated 13.08.2015 was issued. In such a situation the State Government or its concerned department ought to have considered the claim of the respondent petitioner for regularization and then could have proceeded to determine as to whether the respondent petitioner was entitled to any benefit or not. In our opinion, the fortuitous circumstance of the death of the father of the respondent petitioner does not absolve the State Government of its obligation to consider the claim of regularization of the father of the respondent petitioner. There can be a case where the consideration has been made and the regularization accepted but before the order reaches a man dies or his death takes place in the near vicinity or simultaneously with regularization. In this situation, the claim of regularization of the deceased employee does not remain an option to be ignored by the State Government. The State Government or its authorities are under an obligation to consider such a claim and to award any consequential benefits if the process has been set into motion as has happened in the present case. Once the father of the respondent petitioner is found entitled to be regularized as on the date of the Government order dated 13.08.2015, on which date he was admittedly alive, then in that event the claim of the respondent petitioner can also be considered.

10. The consideration of the right of being regularized by operation of law while in force had already accrued in favour of the father of the respondent petitioner, and his death in between further gave rise to the expected consequential claim of compassionate appointment of the petitioner, provided his father's services were declared regular. The consideration of such right, whether had accrued, does not get eclipsed nor could it be abandoned. If the consideration results in the services of the petitioner's father becoming regular, then the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be an impediment for the respondent petitioner to be considered for compassionate appointment. The appellant State and it's authorities therefore cannot escape this exercise and defeat the right of consideration by their inaction or the absence of timely and prompt action. Such exercise of consideration will not evaporate because of untimely death which is a fortuitous circumstance so as to result in any advantage to the State.

12. Consequently, we modify the judgment dated 22.11.2016 to the extent that it shall be open to the appellant State to consider the status of regularization of the father of the respondent and then proceed to take an appropriate decision with regard to the claim of for compassionate the respondent petitioner appointment in the light of the observations made hereinabove."

20. Accordingly, when the facts of the instant case are seen in the light of the law laid down by this Court in the case of Kuldeep Thakur (supra), it clearly emerges that the Division Bench of this Court has held that where a case of a daily wager was being processed for regularization, but before an order could be passed in this regard, the said daily wager died, then the ratio of the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be attracted and that the respondents are required to consider the status of regularization of the deceased and thereafter proceed to take an appropriate decision with regard to the claim of the dependent for compassionate appointment.

21. Keeping in view the aforesaid, the writ petition is allowed. Consequently, the order impugned dated

30.11.2024, a copy of which is annexure-1 to the petition, is set aside.

22. A writ of mandamus is issued commanding the respondent No.3 to consider the claim of the petitioner for compassionate appointment keeping in view the discussion made above.

23. Let such consideration be made within a period of eight weeks from the date of receipt of a certified copy of this order. [Abdul Moin, J.] Order Date :- 22.8.2025 cks/- CHANDRA KANT SINGH High Court of Judicature at Allahabad, Lucknow Bench