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Treatment of an employee as a regular employee even if it is against his designation would deem him to be a regular employee: Supreme Court of India

Aspects associated with a person who had a regular appointment when performed on a person who is deemed otherwise will be considered as a regular employee and be eligible for all the benefits a person with regular employment would be entitled like compassionate appointment. This was held by the Hon’ble Justice Sanjay Kishan Kaul and Hon’ble Justice Hrishikesh Roy in the case of The state of Uttar Pradesh and Ors. Vs. Uttam Singh [CIVIL APPEAL NO.4575/2021] on the 03rd of August, 2021 before the Hon’ble Supreme Court of India at New Delhi.

The brief facts of the case are, the father of the respondent had earlier waged a legal battle against the appellant-Department arising out of his endeavour to get his appointment post his selection for the post of Tubewell Operator. The High Court in the impugned order opined that the selection process of the father of the respondent was unambiguous and against the regular vacancy whereby he had submitted all the requisite documents to the Irrigation Department. The case of the respondent is that the appellants held up this issue over six years and the actual appointment took place only on 29.01.2003. The respondent’s father continued to work and draw emoluments for a period of 13 years equivalent to the regular pay-scale till he unfortunately passed away on 09.03.2016. The appellants seek to assail the judgment of the Division Bench of the Allahabad High Court in terms whereof the respondent before us has been granted the benefit of compassionate appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as “the Rules”) on account of demise of his father, who was working with the appellants.

The respondents submit that, the father of the respondent had not been regularized and merely grant of equivalent benefits on the principle of ‘equal pay for equal work’ would not make him regular employee and thus the respondent is not entitled to the benefit of the Rules for compassionate employment the respondent contends that since his father was employed for more than 3 years in continuous service, he was bound to be considered as a Government Servant and thus the benefit should extend to the respondent. However, the appellant contends that, a person not regularly appointed but who had otherwise put in 3 years continuous service in a regular vacancy cannot mean to imply that a Daily Wager would get the benefit of the Rule. We may, however, note that the Court had opined on the facts of that case holding that benefit would not accrue to the respondent. The regular vacancy was held to mean a vacancy which occurred in posts sanctioned by the competent authority. The service of the deceased employee had not actually been regularized though they have claimed regularization. The fact that the deceased employee was drawing salary in a regular pay-scale was held not to mean that they are against a regular vacancy.

The learned judge heard the submissions of both the counsels and observed that, he was transferred 2 or 3 times by the appellants and was even appointed as a polling officer by State Election Commission on 15.10.2015, 26.11.2015 and 03.12.2015. could not have been such inter-departmental transfers and re-transfers if the father of the respondent was not being considered as a regular employee. The order of appointment in the case of the father of the respondent has been found to be unambiguous in its terms in accordance with norms after verification of all his certificates. A complete process of selection was conducted by the appellants as the employer. The facts have been found sufficient by the High Court to come to the conclusion that the appointment of the father of the respondent was against a regular vacancy and that is why in that background from the inception regular pay-scale was allowed to him and he thus satisfied the parameters of the Rules aforesaid. The high court agreed with the judgement of the High Court and decreed, “We have also taken note of the fact that during his 13 long years of employment and before that having battled the appellants for the period of 6 years to get his dues, the father of the respondent was also transferred from one department to the other, normally an aspect which would be associated with a person who had a regular employment. The most significant aspect is that had the father of the respondent not been considered a regular appointee, there would be no occasion for the Department to volunteer his services to the State Election Commission to perform election duties, which could have been done only by a Government employee, as is specified under Section 159 of the Representation of the People Act, 1950 (“Staff of certain authorities to be made available for election work”). The respondent’s father was treated as a regular employee by the aforesaid conduct of the appellants even though he was labelled as a Part Time tubewell operator.” Thus the appeal was dismissed.

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