REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3605 OF 2009 (Arising out of SLP (Civil) No. 15469 of 2006

General Manager, Uttaranchal Jal Sansthan .. Appellant

Versus

Laxmi Devi and others ….Respondents

WITH

Civil Appeal No._3606 of 2009 (Arising out of SLP (Civil) No. 2737 of 2006)

Uttaranchal Jal Sansthan and others …. Appellants

Versus

Kishore Chandra Pandey …. Respondent

J U D G M E N T

S.B. SINHA, J.  

1. Leave granted.  

2. Whether  dependent  of  a  deceased  who  was  not  a  permanent  or  

temporary  employee would  be  entitled  to  appointment  on  compassionate  

ground is the question involved in these appeals.  

3. Before, however, adverting to the said legal issue, we may notice the  

factual matrix involved in both the maters.

Appeal arising out of SLP (C) No.15469 of 2006

4. Husband  of  respondent  No.1  herein,  late  Balam  Singh  had  been  

working as a Chowkidar under the UP Jal Nigam since 1st August 1989 as a  

daily wage laborer. On or about 16th April 1991 the services of Sri Balam  

Singh were transferred to the Kumaan Jal Sansthan,

Some time around 2001 the deceased filed a writ  petition No. 997  

(SS) of 2001 seeking regularization of his services.  On or about 11.5.2001  

the High Court passed the following interim order in the said petition:

“In  the  meantime  the  respondent  are  directed  to  pay minimum pay scales as is  being paid to the  similarly situated persons and consider the case of  the petitioners for regularization”

However,  soon  thereafter,  on  or  about  25th April,  2002  he  died.  

Admittedly he had worked for more than 12 years till the time of his death as  

a daily wage labourer.  

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5. Respondent  No.1  thereafter  approached  the  petitioner  General  

Manager,  Kumaon  Jal  Sanstha  for  her  appointment  on  compassionate  

grounds in place of her deceased husband under the U.P. Recruitment of  

Dependants of Government Servant Dying in Harness Rules, 1974 (for short  

‘the Rules’).     The said request was rejected on the ground that her husband  

being a daily wage earner, there was no provision for her appointment on  

compassionate grounds; the engagement of late Balam Singh being neither  

permanent nor was he regularly appointed. His appointment was also not  

against a regular vacancy.

6. Respondent No.1 filed a writ petition before High Court which was  

allowed by a learned Single Judge by his order dated 9th May, 2005 directing  

the  appellants  to  consider  her  for  appointment  under  the  Rules  within  a  

period of three months from the filing of the certified copy of the order.   

7. An intra court appeal filed by the appellants against that order stood  

dismissed by the impugned judgment.   

Appeal arising out of SLP © No. 2737 of 2007

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8. Father of the respondent late Leelladhar Pandey had been engaged on  

daily  wage basis  in  the  UP Jal  Nigam.  On or  about  01.10.1990 he  was  

transferred to the Kumaon Jal Sansthan, Nanital.

In 2001 he filed a writ petition No. 261 (SS) of 2001 before the High  

Court  of  Uttranchal  at  Nainital  praying  therein  for  regularization  of  his  

services in the Uttranchal Jal Sansthan. The said petition is admittedly still  

pending with the High Court.

Soon thereafter he died on 12.09.2002. On or about 23.01.2003 the  

respondent made a representation for his appointment in the Sansthan under  

the Rules. The same was however rejected in view of the Government order  

dated 28.05.2002

9. Aggrieved, the respondent filed a writ  petition No. 238/2003 (S/B)  

before the High Court of Uttranchal at  Nanital  seeking the benefit  of the  

Rules,

On or about 24.02.2001 the High Court allowed the writ petition and  

directed the respondent to consider the claim of the petitioner for providing  

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the appointment under the provisions of the Rules on compassionate ground  

within a period of six weeks.

10. Appellant is a Corporation constituted under the U.P. Water Supply  

and Sewerage Act, 1975. Recruitment of its employees is governed by the  

Rules framed by the State of Uttar Pradesh.  It is, however, stated that the  

posts are created only by the State of Uttar Pradesh.   

11. Indisputably applications filed by the respondents herein for grant of  

appointments on compassionate  grounds had been denied on the premise  

that their deceased relatives were only daily wagers.   

In  arriving  at  its  finding,  the  High  Court  inter  alia  considered  its  

earlier decision to opine that as the deceased were in the employment of the  

appellant for a long time, the prayer of the writ petitioners for appointment  

on compassionate ground should be considered in terms of Rules.  

12. The  Rules  were  framed  by  the  Government  of  Uttar  Pradesh  in  

exercise of its powers under the proviso to Article 309 of the Constitution of  

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India.   Rule  2  provides  for  definitions.   ‘Government  servant”  has  been  

defined in clause (a) thereof to mean :

“(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) through  no  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 ;”

Rule 3 provides  that  the Rules would be applied to recruitment  of  

dependants of the deceased government servants to public services and posts  

in connection with the affairs of State of Uttar Pradesh.  Rule 4 provides for  

a non-obstante clause stating that the same shall have effect notwithstanding  

anything to the contrary contained in any rules, regulations or orders in force  

at the commencement thereof.   

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Rule  5  provides  for  recruitment  of  a  member  of  the  family  of  the  

deceased.  It reads as under :

“5. Recruitment of  a member  of the family  of  the deceased. – (1) In case a Government servant  dies in harness after the commencement of these  rules and the spouse of the deceased Government  servant is not already employed under the Central  Government  or  a  State  Government  or  a  Corporation  owned  or  controlled  by  the  Central  Government or a State Government, one member  of his family who is not already employed under  the Central Government or a State Government or  a Corporation owned or controlled by the Central  Government  or  a  State  Government  shall,  on  making an application for the purposes, be given a  suitable employment in Government service on a  post except the post which is within the purview of  the Uttar Pradesh Public Service Commission,  in  relaxation of the normal recruitment rules, if such  person-

(i)  fulfils the educational qualifications prescribed  for the post,

(ii)  is otherwise qualified for Government service,  and  (iii) makes the application for employment within  five  years  from  the  date  of  the  death  of  the  Government servant:

Provided that where the State Government is  satisfied that  the time-limit  fixed for making the  application for employment causes undue hardship  in  any  particular  case,  it  may  dispense  with  or  relax the requirement as it may consider necessary  

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for dealing with the case in a just  and equitable  manner.

(2)  As far as possible, such an employment should  be  given  in  the  same  department  in  which  the  deceased Government servant was employed prior  to his death.”

13. The  contention  raised  by  the  learned  counsel  for  the  respondents  

before us is that a daily wager working for a long time would also come  

within the purview of the definition of  “government  servant” and in any  

event  Leeladhar  Pandy had been  put  on  a  regular  scale  of  pay  and was  

holding  an  appointment  against  a  regular  vacant  post,  although  no  such  

contention had been raised before the High Court.   Our attention has also  

been brought to a purported Office Order dated 21st March, 2002, stating :

“Kindly  peruse  the  above  referred  letter  of  this  Office  whereby  it  had  been  acquainted  that  by  making  amendment  in  Finance  Rules  Compendium, Part-6,  on the issue of abating the  ruling  of  appointment  related  to  Work  Charge  Units,  this  rule  has  been  made  vide  Letter  No.  7553/PWD-2/2001-606  PWD/2001  dated  10.12.2001 of Government of Uttaranchal, Public  Works  Department  –  2,  Dehradun  that  no  appointment of dependents of deceased daily rated  workers be done in Work Charge Units.  Thus, it is  clear  that  as  per  Government’s  Order,  Work  Charge  Cadre  has  been  terminated  from  the  Department for future.

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In  pursuance  of  Grievance  Meeting  with  P.W.D.  Regular/Work  Charge  Worker’s  Union  held on 19.03.2002, on its demand, making partial  amendment  in  Letter  No.  144/10  W.C.  Uttaranchal/2001 dated 15.02.2002, the Engineer- in-Chief,  U.P.P.W.D.,  Settlement  (C)  Section,  Lucknow vide its Office Order Memo. No. 3552  Settl./27/Settl./96 dated 27.06.1996 has passed an  order  to  maintain  the  ruling  of  providing  appointment on daily wage to the dependents on  death  of  such  Daily  Rated  Workers  who  had  completed 10 years of their services as it is.”

14. Contention of learned counsel for the respondents is that keeping in  

view the fact that the services rendered by the deceased employees were for  

over 10 years, appointment on compassionate ground would be permissible,  

particularly  when  persons  similarly  situated  had  been  granted  such  

appointments   

15. Indisputably when Rules were  framed by the State  in terms of  the  

proviso appended to Article 309 of the Constitution of India the same would  

prevail  over  circulars/letters  which  have  no  force  of  law.   The  term  

‘government  servant’  has  statutorily  been  defined.   The  word  used  in  a  

statute should not be read in a pedantic manner.  Unless the context in which  

they are used, they should be read in terms of the constitutional scheme.   

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Rule  5  of  the  Rules  would  apply  provided  the  deceased  was  a  

government servant.   

Indisputably the deceased were neither in permanent employment nor  

were appointed on temporary basis.  At the relevant time a complete ban was  

imposed on appointment of daily wagers.

16. Learned counsel for the respondents state that their cases would come  

under sub-clause (iii) of clause (a) of Rule 2.  It is in the aforementioned  

context that the question as to whether the appointment had been made in  

regular vacancy in such appointment has to be considered.  

Indisputably having regard to the equality clause contained in Articles  

14  and 16  of  the  Constitution  of  India  whether  the  appointment  is  in  a  

regular  vacancy  or  not  is  essentially  a  question  of  fact.   Existence  of  a  

regular vacancy would mean a vacancy which occurred in a post sanctioned  

by the competent authority.  For the said purpose the cadre strength of the  

category to which the post belongs is required to be taken into consideration.  

A regular vacancy is which arises within the cadre strength.   It is a trite law  

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that a regular vacancy cannot be filled up except in terms of the recruitment  

rules as also upon compliance of the constitutional scheme of equality.   

17. In view of the explanation appended to Rule 2(a), for the purpose of  

this case we would, however, assume that such regular appointment was not  

necessarily  to  be taken recourse to.   In  such an event  sub-clause (iii)  of  

clause  (a)  as  also  the  explanation  appended  thereto  would  be  rendered  

unconstitutional.  

18. The provision of law which ex facie violates the equality clause and  

permits appointment through the side door being unconstitutional must be  

held to be impermissible and in any event requires strict interpretation.  It  

was, therefore, for the respondents to establish that at the point of time the  

deceased employees were appointed, there existed regular vacancies.  Offers  

of appointment made in favour of the deceased have not been produced.  

19. Mrs. Rachana Joshi Issar, would, however, submit that the fact that  

the  work  charged  employees  had  been  working  continuously  for  several  

years would raise a presumption that there exists a vacancy and, thus, there  

is a regular need for services.   

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Strong  reliance  in  this  behalf  has  been  placed  in  this  regard  on  

Workmen v. Bhurkunda Colliery of Central Coalfields Ltd., [ (2006) 3 SCC  

297 ], wherein it was held :-  

“17. This Court in  State of Haryana v.  Piara Singh held that:  (SCC p. 153, para 51)

“So  far  as  the  work-charged  employees  and  casual labour are concerned, the effort must be  to  regularise  them  as  far  as  possible  and  as  early as possible subject to their  fulfilling the  qualifications,  if  any,  prescribed  for  the  post  and  subject  also  to  availability  of  work.  If  a  casual  labourer  is  continued  for  a  fairly  long  spell—say two or  three years—a presumption  may  arise  that  there  is  regular  need  for  his  services.  In  such  a  situation,  it  becomes  obligatory  for  the  authority  concerned  to  examine  the  feasibility  of  his  regularisation.  While doing so, the authorities ought to adopt a  positive approach coupled with an empathy for  the person.” Also, in the matter of regularisation, the main  concern of the court  is to see that the rule of  law is respected and to ensure that the executive  acts fairly and gives a fair deal to its employees  consistent with the requirement of Articles 14  and 16 of the Constitution.  The State being a  model  employer  should  not  exploit  the  employees  nor  take  advantage  of  the  helplessness  and  misery  of  either  the  unemployed person or the person concerned, as  the case may be. … Where a temporary or ad  

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hoc appointment is continued for long, the court  presumes  that  there  is  regular  need  for  his  services  on  a  regular  post  and  accordingly  considers regularisation. (Piara  Singh  case4,  SCC p. 134, para 21)”

The said case, in our opinion, would have no application to the present  

case.   These  observations  only  lend  support  to  the  presumption  as  to  a  

regular need for work of the daily wage worker but not as to the existence of  

a regular vacancy in this respect.  In any event, it is one thing to say that by  

reason of  such contingencies  the services  of  the  work charged employee  

should  be  directed  to  be  regularized  but  it  is  another  thing  to  say  that  

although they were not absorbed in the permanent cadre, still on their deaths,  

their dependants would be entitled to invoke the Rules.

20. In any view of the matter the fact that there was a regular need by  

itself would not mean that there was a regular vacancy.  A distinction must  

be  made  between  a  need  of  regular  employees  and  existence  of  regular  

vacancies.   The High Court,  therefore,  in our opinion was not  correct  in  

proceeding to allow the writ application filed by the respondents herein on  

the premise that the deceased had been working for a long time.  

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21. Indisputably the services of the deceased had not been regularized.  In  

both the cases writ petitions were filed but no effective relief thereto had  

been granted.   

In  the  case  of  Late  Leelladhar  Pandey,  allegedly,  he  was  drawing  

salary on a regular scale of pay.  That may be so but the same would not  

mean that there existed a regular vacancy.  

22. Admittedly  a  Constitution  Bench  of  this  Court  in  Secy.,  State  of  

Karnataka  v.  Umadevi (3), [ (2006) 4 SCC 1 ], opined that any appointment  

through  side  door  would  be  violative  of  our  constitutional  scheme  of  

equality contained in Articles 14 and 16 of the Constitution of India, stating:  

“43. Thus, it is clear that adherence to the rule of equality  in  public  employment  is  a  basic  feature  of  our  Constitution and since the rule of law is the core of our  Constitution,  a  court  would  certainly  be  disabled  from  passing an order upholding a violation of Article 14 or in  ordering the overlooking of the need to comply with the  requirements  of  Article  14 read with  Article  16 of  the  Constitution.  Therefore,  consistent with the scheme for  public  employment,  this  Court  while  laying  down  the  law, has necessarily to hold that unless the appointment  is  in  terms  of  the  relevant  rules  and  after  a  proper  competition  among  qualified  persons,  the  same  would  not confer any right on the appointee. If it is a contractual  

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appointment, the appointment comes to an end at the end  of the contract, if it were an engagement or appointment  on daily wages or casual basis, the same would come to  an end when it  is  discontinued.  Similarly,  a  temporary  employee could not claim to be made permanent on the  expiry  of  his  term  of  appointment.  It  has  also  to  be  clarified that merely because a temporary employee or a  casual wage worker is continued for a time beyond the  term of his appointment, he would not be entitled to be  absorbed in regular service or made permanent, merely  on  the  strength  of  such  continuance,  if  the  original  appointment was not made by following a due process of  selection as envisaged by the relevant rules. It is not open  to the court to prevent regular recruitment at the instance  of  temporary  employees  whose  period  of  employment  has come to an end or of ad hoc employees who by the  very  nature  of  their  appointment,  do  not  acquire  any  right.  The High Courts acting under Article 226 of the  Constitution,  should  not  ordinarily  issue  directions  for  absorption,  regularisation,  or  permanent  continuance  unless the recruitment itself was made regularly and in  terms of  the  constitutional  scheme.  Merely  because  an  employee had continued under cover of an order of the  court,  which  we  have  described  as  “litigious  employment”  in  the  earlier  part  of  the  judgment,  he  would not be entitled to any right to be absorbed or made  permanent in the service. In fact, in such cases, the High  Court may not be justified in issuing interim directions,  since, after all, if ultimately the employee approaching it  is  found entitled  to  relief,  it  may be possible  for  it  to  mould  the  relief  in  such  a  manner  that  ultimately  no  prejudice  will  be  caused  to  him,  whereas  an  interim  direction to continue his employment would hold up the  regular procedure for selection or impose on the State the  burden of paying an employee who is really not required.  The courts must be careful in ensuring that they do not  interfere  unduly  with  the  economic  arrangement  of  its  affairs  by  the  State  or  its  instrumentalities  or  lend  themselves the instruments to facilitate the bypassing of  

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the constitutional and statutory mandates.

This  Court  in  Indian  Drugs  &  Pharmaceuticals  Ltd. v.  Workmen,  

[(2007) 1 SCC 408]  has held :-  

“17. Admittedly,  the  employees  in  question  in  court  had  not  been  appointed  by  following  the  regular  procedure,  and  instead  they  had  been  appointed only due to the pressure and agitation of  the  union  and  on  compassionate  grounds.  There  were not even vacancies on which they could be  appointed.  As  held  in  A.  Umarani v.  Registrar,  Coop. Societies such  employees  cannot  be  regularised  as  regularisation  is  not  a  mode  of  recruitment.  In  Umarani case the Supreme Court  observed that the compassionate appointment of a  woman  whose  husband  deserted  her  would  be  illegal  in  view  of  the  absence  of  any  scheme  providing  for  such  appointment  of  deserted  women.”

In  National Institute of Technology v.  Niraj  Kumar Singh,(2007) 2  

SCC 481, this Court had held :-

“ 14. Appointment on compassionate  ground  would  be  illegal  in  absence  of  any  scheme  providing  therefor.  Such  scheme  must  be  commensurate  with  the  constitutional  scheme  of  equality.

…. ….

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16. All  public  appointments  must  be  in  consonance with Article 16 of the Constitution of  India.  Exceptions  carved  out  therefore  are  the  cases where appointments  are to be given to the  widow or the dependent children of the employee  who died in harness. Such an exception is carved  out  with  a  view  to  see  that  the  family  of  the  deceased employee who has died in harness does  not become a destitute. No appointment, therefore,  on  compassionate  ground  can  be  granted  to  a  person  other  than  those  for  whose  benefit  the  exception  has  been  carved  out.  Other  family  members  of  the  deceased  employee  would  not  derive any benefit thereunder.”

This Court  in  I.G.  (Karmik) v.  Prahalad Mani Tripathi,  [  (2007) 6  

SCC 162] had held :-  

“7. Public  employment  is  considered  to  be  a  wealth.  It  in  terms  of  the  constitutional  scheme  cannot  be  given  on  descent.  When  such  an  exception has been carved out by this Court, the  same must be strictly complied with. Appointment  on compassionate ground is given only for meeting  the  immediate  hardship  which  is  faced  by  the  family by reason of the death of the bread earner.  When an appointment is made on compassionate  ground,  it  should  be  kept  confined  only  to  the  purpose it seeks to achieve, the idea being not to  provide for endless compassion.”

{See also State Bank of India v. Jaspal Kaur,[ (2007) 9 SCC 571 ] }.

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23. Submission of the learned counsel for the respondents is that the said  

decision is not applicable :

a) as it was rendered in 2006 whereas the cause of action for  

filing the writ petition arose in 2002 ; and

b) a distinction must be made between the appointment on  

ad hoc basis and appointment on compassionate ground.  

24. As to the first submission above, it is worth mentioning that judicial  

decisions unless otherwise specified are retrospective.  They would only be  

prospective in nature if it has been provided therein. Such is clearly not the  

case  in  Umadevi  (supra).   Accordingly,  even though the cause  of  action  

would  have  arisen  in  2002  but  the  decision  of  Umadevi  (supra)  would  

squarely be applicable to the facts and circumstances of the case.  Secondly,  

before a person can claim a status of a  government servant  not  only his  

appointment  must  be  made  in  terms  of  the  recruitment  rules,  he  must  

otherwise fulfill the criterion therefor.  Appointment made in violation of the  

constitutional scheme is a nullity.  Rendition of service for a long time, it is  

well known, does not confer permanency.  It is furthermore not a mode of  

appointment.   

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25. Reliance  placed  on  Khagesh  Kumar v.  Inspector  General  of  

Registration,  [1995 Supp (4)  SCC 182 ]  for  the  proposition  that  ad  hoc  

appointees working for several years without break should be considered for  

regularization  in  accordance  with  the  Rules,  in  our  opinion,  is  clearly  

inapplicable.   In any event  all  such decisions must  be held to have been  

overruled in Umadevi (supra).  

26. Reliance  has  been  placed  on  a  purported  circular  issued  by  

Uttaranchal Public Works Department dated 21st Mach, 2002, assuming that  

the same can be taken into consideration, is in our opinion wholly irrelevant.  

Apart  from  the  fact  that  such  a  contention  had  not  been  raised  by  the  

respondents  before  the  High  Court,  we  fail  to  understand  how  a  mere  

circular  letter  which  has  no force of  law shall  prevail  over  the  statutory  

Rules.   

Respondents themselves have relied upon the decision of this Court in  

DDA v. Joginder S. Monga, [ (2004) 2 SCC 297], wherein it was held that  

executive instructions cannot run contrary to the statutory provisions.  

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27. Learned  counsel  for  the  respondents  submits  that  the  daily  wage  

employees would be entitled to the benefit of the Rules.   They are, in our  

opinion, not covered in the definition  of the ‘government employee’.

28. Ms.  Issar  urged  that  the  daily  wagers  are  not  excluded  from  the  

purview of the Rules.  The said question, in our opinion, is irrelevant.  The  

question which should have been posed is as to whether daily wagers are  

included within the definition of “government servant”.  If daily wagers are  

not  government  servants,  question  of  applicability  of  the  Rules  does  not  

arise.

29. Submission of the learned counsel that persons similarly situated have  

been appointed is again of not much relevance.  Apart from the fact that the  

High Court in its impugned judgment did not proceed on the said basis, it is  

now well settled that Article 14 of the Constitution of India carries with it a  

positive effect.   Equality clause cannot apply in a case where it arises out of  

illegality.   

30. Moreover, grant of appointment on compassionate ground has its own  

limitations as it is an exception to the mode of regular appointment.

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31. For the reasons abovementioned the impugned judgments cannot be  

sustained.  They are set aside accordingly.  The appeals are allowed.  In the  

facts and circumstances of the case, there shall, however, be no order as to  

costs.  

…………………………………….J. [ S.B. Sinha ]

…………………………………….J. [ Dr. Mukundakam Sharma ]

New Delhi.  May 15, 2009

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