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Government has rejected compassionate appointment

Shivendra Pratap Singh

Advocate

03/02/2022/ 2:30:15 PM

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Question: Government has rejected my application for the compassionate appointment on dying in harness rule. My father was a teacher in ITI College. He taught shorthand and typing. He was working as a daily wager because one post of teacher was vacant. There were three sanctioned posts for typing teachers. Two are permanent and one is ad-hoc. My father was working as an ad-hoc teacher. He died in Covid pandemic so I applied for a compassionate appointment for his post. I have eligibility but the government has rejected my appointment because my father was not a permanent teacher. Please guide how to get a compassionate appointment on dying in harness?

Asked from: Uttar Pradesh

U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 regulates the compassionate appointment. If an employee dies during his employment his dependent may get compassionate appointment on the basis of dying in harness rule. 

Essential conditions for appointment under dying in harness rule

There are two essential conditions for granting the benefit of dying in harness rule. Firstly, the deceased employee should have been working on a regular vacancy. Secondly, he should be appointed in accordance with the prescribed rule.

There should be no illegality on the initial appointment of the deceased employee. Bypassing the proper channel or back door entry of deceased employee renders his appointment illegal. In this condition his dependent is not entitled to get a compassionate appointment under the dying in harness rule.

The government has rejected your application for compassionate appointment because your father was an ad-hoc employee. This is not a fair ground to reject your application.

Working on regular vacancy

You said that your father was working as a typing teacher in the ITI College. There are three sanctioned posts for the teachers. Only two teachers are permanent. Your father was working as an ad-hoc teacher because the government has not appointed any incumbent teacher on the permanent post. 

It proves that your father was working on the regular vacancy. He had been receiving salary from the state government and there is no dispute regarding his appointment. The government has rejected your application for compassionate appointment because your father was an ad-hoc employee. It means there is no dispute regarding his appointment. The government has admitted that your father was an ad-hoc or work charged employee. 

In Pawan Kumar Yadav v. State of U.P. & Others 2011 (1) AWC 1028 (FB) the full bench of the Allahabad High Court has held that 

“A daily wager and work charge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ‘Government servant’ within the meaning of Rule 2 (a) of U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974, and thus his dependents on his death in harness are not entitled to compassionate appointment under these Rules.”

The above decision of the High Court makes it clear that when a deceased employee was not appointed in any regular vacancy he shall not be treated as a government servant under Rule 2(a) of the 1974 Rules. In this situation his dependent shall not get a compassionate appointment.

On the other hand, a dependent of a deceased employee, who was working on regular vacancy, is entitled to get a compassionate appointment. You have fulfilled this criteria. 

Are you entitled to get a compassionate appointment?

Yes, you are entitled to get a compassionate appointment under the provisions of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. 

In General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and Others, C.A. No. 3605 of 2009 SC the Supreme Court has held that when a competent authority has sanctioned a post in a cadre strength that post is a regular vacancy. Hence, your father’s post is a regular vacancy because there are three posts of teachers which have been sanctioned by the government. 

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.

General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and Others, C.A. No. 3605 of 2009 SC

Therefore, you are entitled to get a compassionate appointment under the dying and harness rule. Your father’s post is a regular vacancy. The competent authority had appointed him at that post in accordance with the service rule. Your father died in harness while continuing on the post of typing teacher. 

Your family has plunged into poverty on account of the sudden demise of your father. You have the essential qualification to work as a typing teacher. Hence, the government should consider your candidature as per the dying in harness rule.  The government has illegally rejected your application for the compassionate appointment. Hence, you should file a writ petition in the High Court. File a mandamus writ under Article 226 of the constitution of India.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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