Holding

Daily‑wage workers are not "government servants" within the meaning of the Rules, so their dependents cannot claim compassionate appointment; all appointments must conform to the statutory recruitment rules and a regular vacancy.

Summary

The husband and father of the petitioners were daily‑wage workers in the Uttar Pradesh Jal Sansthan who died while in service. Their dependents sought compassionate appointments under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. The High Court directed the department to consider such appointments, but the department appealed. The Supreme Court held that daily‑wage workers are not "government servants" within the meaning of the Rules, and therefore the Rules do not apply to their dependents. A regular vacancy must exist within the sanctioned cadre; long service alone does not create such a vacancy. The Uttaranchal Public Works Department circular of 21‑March‑2002 cannot override statutory rules, and appointments must comply with Articles 14 and 16 of the Constitution. Consequently, the High Court orders were set aside and the appeals were allowed.

Issues considered

Whether a daily‑wage employee qualifies as a "government servant" under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.
Whether the dependents of a deceased daily‑wage employee are entitled to a compassionate appointment under those Rules.
Whether a regular vacancy existed for such an appointment.
Whether the Uttaranchal Public Works Department circular dated 21‑March‑2002 can override the statutory Rules.
Whether Articles 14 and 16 of the Constitution permit compassionate appointments in the absence of a statutory scheme.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309
Uttar Pradesh Water Supply and Sewerage Act, 1975

Subjects

service lawcompassionate appointmentgovernment servant definitiondaily wage employeeequality clauseArticle 14Article 16regular vacancyrecruitment rules

Judgment

[2009] 9 S.C.R. 791

"' -+
GENERAL MANAGER, UTTARANCHAL JAL SANSTHAN A
v.
LAXMI DEVI AND OTHERS.
(Civil Appeal No. 3605 of 2009)
MAY 15, 2009
B
[5.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
~

Service Law:

Uttar Pradesh Recruitment of Dependents of Govenment c
Servants Dying in Harness Rules, 1974
., "· 2 (a) (iii) and 5 - Daily wage employees - Death of,
while in service - Claim for compassionate appointment -
. Held: Daily wage employees' are not covered in the definition
of 'Government employees' - Rendition of service for a long D
,.. " time does not confer permanency - Deceased employees
were neither in permanent cadre nor were they appointed on
a temporary basis - Judgments of High Court directing the
department to consider the claims of writ petitioners for
compassionate appointments set aside. E
Constitution of India, 1950
, 'f Articles 14 and 16 - Appointment on a regular vacancy
- Held: A regular vacancy cannot be filled up except in terms
of recruitment rules as also on compliance of the F
constitutional scheme of Enquality - Article 14 carries with it
a positive effect - Equality clause cannot apply in a case of
illegality - A circular cannot prevail over statutory rules - Uttar.
Pradesh Recruitment of Dependents of Government Servants
I
,,--I Dying In Harness Rules, 1974 - Uttaranchal Public Works G'
• Department circular. dated 21.3.2002.
Judgment:
Retrospective operation of judgment - Held: JudiCial
..
791 H
792 SUPREME COURT REPORTS [2009] 9 S.C.R.

A decisions unless otherwise specified, are retrospective in
operation.

The husband of the respondent in Civil Appeal No.
3065 of 2009 and the father of the respondent ·in Civil
Appeal No. 3606 of 2009 worked on daily wage basis in
8
U.P. Jal Sansthan. They were transferred to Kumaun Jal
Sansthan on 16.4~1991 and 1.10.1990 respectively. They
died in such service. The respond,ents made
representations for compassionate appointment which
was declined by the Department. However, the High
C Court directed to consider their cases for appointment.
Aggrieved, the Department filed the appeals. ·

It was contended for the respondents thatJn view of
Clause (3) of r.2 (a) of the U.P. Recruitment of Dependents
D of Government Servants Dying in Harness Rules, 1974,
the deceased employees having rendered more than 3
years continue service were Government servants and,
further the Uttaranchal Public Works Department Circular
dated 21.3.2002 provided for compassionate
E appointments on daily wage to dependents of such daily
rated workers who had rendered 10 years of such service
prior to their death while in service.

Allowing the appeals, the Court held: y

F HELD: 1.1~ Daily wage employees are not covered in
the definition of Government employees and, therefore,
in their case question of applicability of the Uttar Pradesh
Recruitment of Dependents of Government Servants
Dying in Harness Rules, 1974 does not arise. Before a
G person can claim status of a Government servant, not
only his appointment must be made in terms of the
recruitment rules, but he must also otherwise fulfill the
criterion therefor. Appointment made in violation of the
constitutional scheme is a nullity. Rendition of service for
H a long time does not confer permanency. It is furthermore
GENERALMANAGER,UTTARANCHALJALSANSTHANv. 793
LAXMI DEVI AND ORS.
not a mode of appointment. [Para 24, 27 and 28] [807-G- A
H; 808-F-H]

1.2. 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 8
not is essentially a qusetion 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. c
A regular vacancy is which arises within the cadre
t strength. It is a trite law 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. [Para 16] [801-F-H; 802-A] 0
Secretary, State of Kamataka vs. Uma Devi (3) 2006 (4)
SCC 1; Indian Drugs & Pharmaceuticals Ltd. vs. Workmen
2007 (1) SCC 408; National Institute of Technology vs. Niraj
Kumar Singh 2007 (2) SCC 481; I. G. (Karmik) vs. Prahalad
Mani Tripathi 2007 (6) SCC 162; State Bank of India vs. E
Jaspal Kaur 2007 (9) SCC 571 and Khagesh Kumar vs.
Inspector General of Registration 1995 Supp. (4) 182,
referred to.

1.3. Indisputably the deceased were neither F
permanent employees nor were they appointed on
temporary basis. At the relevant time a complete ban was
imposed on appointment of daily wagers. The fact that
there was a regular need of duties would not meant that
there was a regular vacancy. A distinction must be made G
between a need of regular employees and existence of
regular vacancies. It may be that one of the deceased
employee was drawing salary on a regular scale of pay,
but the same would not mean that there existed a regular
H
794 SUPREME COURT REPORTS [2009] 9 S.C.R.
~ ....
A vacancy. The High Court, therefore, was not correct in
allowing the writ petition filed by the respondents on the
premise that the deceased had worked for a long time.
[Para 15, 20 and 21] [801-0-E; 803-G-H; 804-A-C]

B 1.4. Assuming that the Circular dated 21.3.2002
issued by Uttaranchal Public Works Department can be
taken into consideration, it is wholly irrelevant. Apart from .....
~
the fact that such a contention has not been ·raised by
the respondents before the High Court, a mere circular
c which has no force of law cannot prevail over the
statutory rules. [Para 26] [808-C-D]
r
ODA vs. Joginder S. Monga 2004 (2) SCC 297; referred _....
to.

D 2.' Judicial decisions unless otherwise specified are
retrospective. They would only be prospective in nature >. ....
if it has been so provided therein. Such is clearly not the
case in Uma Devi. Accordingly, even though the cause
of action would have arisen in 2002 but the decision of
E Uma Devi would squarely be applicable to the facts and
circumstances of the case. [Para 24] (807-F-G]

3. As regards the submission that persons similarly
'. situated \.
have been appointed, apart from the fact that the
y
...._
F High Court in its judgment did not proceed on that basis,
Article 14 of the Constitution carries with it a positive
··~ effect. Equality clause cannot apply in a case where it
arises out of illegality. Moreover, grant of appointment on
compassio_nate ground has it own limitations as it is an
exception to the mode of regular appointment. [Para 29
G ...
-
~
and 30] [809-A-C]

4. The judgments of the High Court cannot be
sustained and are set aside. [Para 31] [809-C]
,.,
H
· GENERAL MANAGER, UTIARANCHAL JAL SANSTHAN v. 795
LAXMI DEVI AND ORS.
Case Law Reference: A
2004 (2) sec 297 referred to Para 19
2006 (4) sec 1 referred to Para 22
2001 (1) sec 408 referred to Para 22
B
2001 (2) sec 481 referred to Para 22
2001 (6) sec 162 referred to Para 22
2001 (9) sec. s11 referred to Para 22
1995 Supp. (4) 182 referred to Para 25
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3605 of 2009. ·

From the Judgment & Order dated 21.02.2006 of th High o
Court of Uttaranchal at Nainital in Special Appeal No. 63 of
2005 and order dated 09.05.2005 in Writ petition No. 1119 (S/
S) of 2002.

WITH
E
C.A. No. 3606 of 2009.

Jatinder Kumar Bhatia for the Appellant.

Rachana Joshi lssar, Shailendra Kumar, Nidhi Tewari,
Saurabh Soman Sinha and Gaurav Agrawal for the F
Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted. G
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.
H
796 SUPREME COURT REPORTS [2009] 9 S.C.R. .
•
+- ·~,

A 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. tiusband of respondent No.1 he'"ein, late Balam Sir:-igh
B had been working as a Cho~kidar 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 Kumaari Jal Sansthan,
i
Some time around 2001 the decease.d filed a writ petition
c No.• 997 "
(SS) of 2001 seek.ing 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
D minimum pay scales as is being paid to the similarly
situated persons and consider the case ·at the petitioners .~ :~

for regularization"

However, soon thereafter, on or about 25th April, 2002 he
E died. Admittedly he had worked for more than 12 years till the
time of his death as a daily wage labourer.

5. Respondent No.1 thereafter approached the petitioner j
,.__
General Manager, Kumaon Jal Sanstha for her appointment on
compassionate grounds in place of her deceased husband
" '-

F 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 0f
G late Balam Singh being neither permanent nor was he regularly ~ T ,

appointed. His appointment was also not against a regular ..,;

vacancy.
- r
6. Respondent No.1 filed a writ petition before High Court
H ~-
GENERAL MANAGER, UTIARANCHAL JAL SANSTHAN v. 797
LAXMI DEVI AND ORS. [S.S. SINHA, J.]
"'r' +
which was allowed by a learned Single Judge by his order A
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 8
order stood dismissed by the impugned judgment.

{
Appeal arising out of SLP © No. 2737 of 2007

8. Father of the respondent late Leelladhar Pandey had
been engaged on daily wage basis in the UP Jal Nigam. On c
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
D
regularization of his services in the Uttranchal Jal Sansthan. The
, .. ,A 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 E
however rejected in view of the Government order dated
28.05.2002
y
,;. 9. Aggrieved, the respondent filed a writ petition No. 238/
2003 (S/B) before the High Court of Uttranchal at Nanital
F
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 the appointment under the provisions
of the Rules on compassionate ground within a period of six G
. ~
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 H
798 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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
8
were only daily wagers.
I--
,__
In arriving at its finding, the High Court inter alia considered -c~

its earlier decision to opine that as the deceased were in the '
employment of the appellant for a long time, the prayer of the
C writ petitioners for appointment on compassionate ground l
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
0 309 of the Constitution of India. Rule 2 provides for definitions.
'Government servant" has been defined in clause (a) thereof
·to mean:

"(a) 'Government servant' means a Government servant

E
employed in connection with the affairs of Uttar
Pradesh who -
. I

)

(i) was permanent in such employment ; or
¥
(ii) though temporary had been regularly appointed ~

F
in such employment ; or
r-i
(iii) through no regularly appointed had put in three
years' continuous service in regular vacancy in such •r-
employment. r
I
G Explanation- "Regularly appointed" means appointed in
~,.
accordance with the procedure laid down for recruitment
to the post or service, as the case may be ;" t
r
Rule 3 provides that the Rules would be applied to

H
GENERALMANAGER,UTTARANCHALJALSANSTHAN~ 799
LAXMI DEVI AND ORS. [S.B. SINHA, J.]
+
recruitment of dependants of the deceased government A
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. B
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 c
the commencement of these rules and the spouse of the
deceased Government servant 1s not already employed
.... under the Central Government or a State Government or
a Corporation owned or c·ontrolled by the Central
Government or a State Government, one member of his D
J.
) 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 E
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, F

(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: G
~ -I
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
H
800 SUPREME COURT REPORTS [2009] 9 S.C.R.

A may consider necessary 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."
B
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
C 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 :
D
"Kiridly 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.
E
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
F Cadre has been terminated from the Department for future.

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.
G 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
H
GENERAL MANAGER, UTTARANCHAL JAL SANSTHAN v. 801
LAXMI DEVI AND ORS. [S.B. SINHA, J.]
" ...
to the dependents on death of such Daily Rated Workers A
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 B
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 c
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.
D
.. )
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 E
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
G
.. -1. 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
H
802 SUPREME COURT REPORTS [2009] 9 S.C.R.

A consideration. A regular vacancy is which arises within the
cadre strength. It is a trite law 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
8
the purpose of this case we would, however, assume that such
regular appointment was not necessarily to be taken recourse
to. !n such an event sub-clause (iii) of clause (a) as also the
explanation appended thereto would be rendered
unconstitutional.
c
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
D 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.

E 19. Mrs. Rachana Joshi lssar, 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.

F Strong reliance in this behalf has been placed in this regard
on Workmen v. Bhurkunda Colliery of Central Coalfields Ltd.,
[ (2006) 3 sec 297 ], wherein it was held :-

"·17. This Court in State of Haryana v. Piara Singl1 held
G 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,
H
GENERAL M,\NAGER, UTTARANCHAL JAL SANSTHAN v. 803
LAXMI DEVI AND ORS. [S.B. SINHA, J.]
~
..
if any, prescribed for the post and subject also to A
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 B
feasibility of his regularisation. While doing so, the
authorities ought to adopt a positive approach
/r 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
c
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 D
.. unemployed person or the person concerned, as the case
* may be .... Where a temporary or ad 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 E
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 F
worker but not as to the existence of a reg~lar 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
G
~ -t 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.
H
804 SUPREME COURT REPORTS [2009] 9 S.C.R.

.. ...,
A 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.
B
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
c 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 Kamataka v. Umadevi (3), [ (2006) 4 SCC 1 ], opined
D that any appointment through side door would be violative of
OU[ 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
•E 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

F
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
4
-
employment, this Court while laying down the Jaw, 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 appointment, the
G
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
H
GENERALMANAGER,UTTARANCHALJALSANSTHAN~ 805
LAXMI DEVI AND ORS. [S.B. SINHA, J.]
claim to be made permanent on the expiry of his term of A
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 B
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 c
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 hau 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 rnust 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 the constitutional and statutory
mandates.
This Court in Indian Drugs & Pharmaceuticals Ltd. v.
806 SUPREME COURT REPORTS [2009] 9 S.C.R.

A Workmen, [(2007) 1 SCC 408] has held :-

"17. Admittedly, the employees in question in court had not
been appointed by following tre regular procedure, and
instead they had been appointed only due to the pressure
and agitation of the union and on compassionate grounds.
B
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
c 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,
D (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 comme'nsurate with the constitutional
scheme of equality.
E

16. All public appointments must be in consonance
with Article 16 of the Constitution of India. Exceptions
F carved out therebre 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
G become a destitute. No appointment, therefore, on
compassionate ground can be granted to ~ person other
than those for whose benefit the exception has been
carved out. Other family member.s of the deceased
employee would not derive any benefit thereunder."

H
(
4 GENERAL MANAGER, UTIARANCHAL JAL SANSTHAN v. 807

..
'
:,.,
LAXMI DEVI AND ORS. [S.B. SINHA, J.]

This Court in /.G. (Karmik) v. Prahalad Mani Tripathi, [ A
(2007) 6 sec 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
B
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
c
achieve, the idea being not to provide for endless
~ compassion."

{See also State Bank of India 1/. Jaspal Kaur, [(2007) 9
sec 571 J }. D
'!''
1 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 E

(b) a distinction must be made between the
appointment on ad hoc basis and appointment on
,, Jr
compassionate ground.
F
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 G
.. ~
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
-- H
808 SUPREME COURT REPORTS [2009] 9 S.C.R.

A criterion therefor. Appointment made in violation of the
~ .. t

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.

25. Reliance plQted on Khagesh Kumar v. Inspector
8
General of Registration, [1995 Supp (4) SCC 182 ] for the
propos.ition 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
c 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 s~me can be taken into
D consideration, is in our opinion wholly irrelevant. Apart from the
fact that such a contention h!'.'d not been raised by the ·~
1
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.
E
Respondents themselves have relied upon the decision of
this Court in DOA v. Joginder S. Monga, [ (2004) 2 SCC 297],
wherein it was held that executive instructions cannot run
contrary to the statutory provisions. ~
rr

F 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. lssar urged that the daily wagers are not excluded
G
from the purview of the Rules. The said question, in our opinion, ~ ,.
f
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.
H
- GENERALMANAGER,UTTARANCHALJALSANSTHAN~ 809
LAXMI DEVI AND ORS. [S.S. SINHA, J.]
29. Submission of the learned counsel that persons A
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 B ,
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.
c
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.
D
R.P. Appeals allowed.