- (1.) This special appeal is against a judgment and order of the learned Single Judge dated 30 July 2014 allowing a writ petition filed by the first respondent.
(2.) The facts lie in a narrow compass. The father of the first respondent was engaged as a seasonal employee in the office of the Co-operative Cane Development Union Ltd.1, Daurala, District Meerut, the second appellant. As a seasonal employee, he had worked from 28 December 1964 until his death on 15 May 1997. Upon the death of the seasonal employee, the first respondent applied for employment. On 28 September 1998, the first respondent was engaged as a seasonal clerk on a temporary basis. The first respondent had moved a representation for seeking appointment on a permanent basis under the dying in harness category. Being aggrieved by his appointment as a seasonal clerk, eventually, he filed a writ petition2 seeking a mandamus to the Deputy Cane Commissioner, the third respondent to issue appropriate directions for his appointment on the post of clerk on a permanent basis.
(3.) The Cane Development Union is a Co-operative Society, registered under the U.P. Co-operative Societies Act, 1965. In 1974, the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 19743 were made in exercise of the powers conferred by the proviso to Article 309 of the Constitution. There is no dispute about the position in law that these Rules have no application to the Cane Development Union, particularly since employees of the Cane Development Union are not government servants within the meaning of rule 2 (a). The basis of the claim of the first respondent for the grant of permanency under the dying in harness category was that on 21 December 1973, prior to the enforcement of the Rules made under the proviso to Article 309, the State Government had issued a circular clarifying that, upon the death of a government servant, one member of his family would be eligible for the grant of compassionate appointment subject to fulfillment of required educational qualifications. This circular was adopted by the Cane Development Union in an order dated 28 July 1979 of the Cane Commissioner who is also an ex officio President of the State Cane Services Authority and the Registrar of the Cane Development Union. Hence, the submission of the first respondent was that since the circular of the State Government had been adopted by the Cane Development Union, the first respondent was entitled to an appointment as a clerk in a permanent capacity inspite of the fact that his father was a seasonal clerk. This submission was accepted by the learned Single Judge in the impugned judgment and order. The learned Single Judge relied upon a decision of the Division Bench of this Court in Ajay Kumar Sharma vs. State Government of U.P.4, in support of the proposition that an appointment under the dying in harness rules cannot be on a temporary or ad hoc basis as it would frustrate the purpose of the rules, namely to save the family which has lost its wage earner from distress. In the view of the learned Single Judge, once the circular of the State Government had been accepted as a matter of policy and the appellants had engaged the first respondent as a seasonal clerk, his appointment could not have been, in any other than a permanent capacity. The judgement of the learned Single Judge has been called into question.;