- (1.) This special appeal has arisen from a judgment and order of the learned Single Judge dated 24 April 2015.
(2.) The father of the respondent was appointed as a Junior Engineer on 1 October 1982 and was eventually absorbed in the District Rural Development Agency, DRDA on 12 October 1990. He died while in harness on 8 May 2010. The respondent was born on 25 August 1995. According to him, when he attained the majority, he moved an application on 24 February 2015 for appointment under the Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974, Rules of 1974. The application was rejected by the Project Director, DRDA on 3 March 2015. It appears that on 2 June 2004, a communication was addressed by the Commissioner, Rural Development to the Chief Development Officers and to all the Project Directors to the effect that there was a Government Order dated 22 April 2004. The Government Order provided that DRDA is a society registered under the Societies Registration Act, 1860 and hence, the provisions of the Rules of 1974 would not apply. The case of the respondent in the writ petition was that in a judgment of a learned Single Judge dated 26 July 2006 in Smt. Reeta Mishra v State of Uttar Pradesh, Writ Petition No.2205 (S/S) of 2006the Government Order dated 22 April 2004 was quashed and set aside and a direction had been issued for considering the claim of the applicant-petitioner for appointment under the Rules of 1974. That judgment is followed in a subsequent decision of a learned Single Judge in Shaffique Ahmad v State of Uttar Pradesh, Writ Petition No.57505 of 2006 (decided on 25 March 2008) . In State of Uttar Pradesh v. Surya Bhan Singh, Special Appeal Defective No.33 of 2014 a Division Bench at Lucknow rendered a judgment on 21 July 2014. In that case, the father of the respondent had died in harness and in the writ petition which he had filed, the learned Single Judge quashed the Government Order dated 22 April 2004, which was coming in his way for appointment on compassionate grounds. Thereafter the respondent was appointed on the post of Junior Clerk, but his services were terminated subsequently leading to the filing of a writ petition, Writ Petition No.5332 (S/S) of 2007. The order of termination was set aside on the ground that the appointment had been made on compassionate basis and the Government Order dated 22 April 2004 had been quashed. The Division Bench, in a special appeal against the judgment of the learned Single Judge, held that since the appointment had been made in pursuance of a judgment of this Court, it was not open to the authority to terminate the services after lapse of six months in breach of the principles of natural justice. Hence, it was held that such exercise of power was arbitrary. The special leave petition against the judgment of the Division Bench dated 21 July 2014 was dismissed on 7 January 2015.
(3.) The basic issue which arises for consideration is as to whether the provisions contained in the Rules of 1974 are attracted. The expression "government servant" is defined in Rule 2 (a) as follows: "(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) though not 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;" A Division Bench of this Court in State of Uttar Pradesh v Pitamber, Special Appeal (Defective) No.687 of 2010 (decided on 19 August 2010) considered the issue as to whether the employees of DRDA are government servants holding civil posts in the civil service of the State so as to attract an application of Rule 56 of the Fundamental Rules. The Division Bench by its judgment dated 19 August 2010 held as follows: "16. Considering the above referred judgments and the material on record, it will be clear that firstly the DRDA is a Society registered under the Societies Registration Act. Its funding is 70 percent from the Central Government and 30 percent from the State Government. The members of the Society and also the Working Committee are basically persons holding the posts in government service, mostly in the State Government and some in the Central Government, as the object is of rural development. Bye-law 20 (h) recognizes that the staff are to be appointed by the Governing Body. The accounts are to be approved by the Governing Body in its annual general meeting. Suits are to be filed against the Society. Thus, though there may be funding by the Central/State Governments and control by the State Government, nonetheless they are employees of the Society. Some posts are filled up on transfer by the Governor and in respect of others, appointments are to be made by the Chief Executive Officer, who is the District Magistrate. Considering the tests laid down in Kanik Chandra Dutta , we are clearly of the opinion that the tests laid down in the judgment of the Supreme Court are not satisfied. Once it is held that they are the employees of DRDA and are not holding civil posts in the service of State, Rule 56 of the Fundamental Rule would not apply to them.";