The Allahabad High Court has held that the right of consideration for regularization does not come to an end with the death of the employee and survives through his legal representatives, where the regularization exercise had been set in motion in his lifetime.

It held that such consideration must be undertaken, if necessary notionally, so that the consequential service benefits reach the legal heirs.

While awarding cost of Rs. 50,000 in favour of the petitioner-son of the deceased workman who was a minor at the time of the death of his father, Justice Indrajeet Shukla held,

“..the deceased employee shall be deemed to have been regularized from the date on which he became eligible for such benefit. All consequential entitlement, including monetary and otherwise, shall accordingly be made over to the legal heirs, who today stand not merely as a claimant to the financial dues, but as representatives of a moral wrong seeking redress. Justice, even if delayed, must be seen to repair what was broken not only in legality, but in principle.”

Petitioner's father was engaged as a Junior Assistant in the Work Charge Establishment of the Rural Engineering Department, Block Hardoi. A seniority list drawn up on 7th July 2005 under the U.P. Regularization of Daily Wages Appointment on Group-C Posts (Outside the purview of the Uttar Pradesh Public Service Commission), Rules, 1998 carried his name at serial no. 58.

After 172 Group-C posts were sanctioned by Government Order dated 21st June 2012, a Selection Committee was constituted and such employees were called to appear before it on 30^th August 2012. Petitioner's father died on 11^th August 2012. Others similarly situated were regularized in the exercise, which concluded in January 2013.

Petitioner's mother approached the High Court in 2017. Her petition was disposed of directing the second respondent, the Director and Chief Engineer of the department, to first consider the deceased employee's regularization in the light of the Division Bench decision in State of U.P. and others Vs. Kuldeep Thakur, and only thereafter her claim under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974.

The claim was rejected on grounds that the father had died before the regularization process concluded and that the 1974 Rules made no provision for dependants of work charge employees.

That order was set aside with a direction that if persons junior to the deceased employee had been regularized, the same benefit was to be extended to him. The second respondent then passed the order impugned in the present petition, refusing regularization on substantially the reasoning his predecessor had adopted.

Since the order impugned was not passed in accordance with the orders passed by the High Court on multiple occasions and reasoning already set aside had been repeated, the Court held that

“the order impugned dated 17.03.2023 is nothing but a standing monument of the stubborn attitude of respondent authorities, attempting and endeavoring to defy the majesty of this Court, which is ex-facie contemptuous.”

It further held,

“The right of consideration for notional regularization continues to exists even after death of an employee for purposes of computing benefits devolved upon legal heirs/successors of deceased employee...This Court cannot allow the technicalities to subvert the spirit of justice. The right of regularization when accrued, travels with the person and in their absence, survives through their legal representatives. The State, being a model employer, is bound to uphold not merely the letter of the contract, but the spirit of fairness, equality and compassion.”

Censuring the second respondent with a warning for the future, the Court held that the long service rendered by the deceased employee could not be allowed to go in vain on the caprice of authorities who had regard neither for the law nor for its orders.

Referring to Ratnagiri Gas and Power Private Limited vs RDS Projects and others and West Bengal State Electricity Board Vs. Dilip Kumar Ray, it observed that malice in law does not import personal ill-will or spite, but denotes action taken without lawful justification, for an unauthorised purpose, or in disregard of the statutory scheme.

The Court noted that the Allahabad High Court in State of U.P. and others Vs. Kuldeep Thakur, had held that where an employee's right to regularization had crystallized under the applicable Government Order and was pending consideration, that right would not stand extinguished by his untimely demise. It held that the authority was first required to decide the regularization claim before turning to the dependant's claim.

“The recognition of the right of regularization qua service rendered by the deceased employee was under constitutional mandate and was covered by the statutory scheme…. Thus, the long service, particularly 18 years rendered by the deceased employee, could not be permitted to go in vain on the caprice, whims and stubborn attitude of respondents who neither have any regard for law nor the orders passed by this Court.”

Noting that the petitioner was minor at the time of his father's death and non-consideration of his claim would lead to hostile discrimination by the State, the Court held

“This Court cannot allow the technicalities to subvert the spirit of justice. The right of regularization when accrued, travels with the person and in their absence, survives through their legal representatives. The State, being a model employer, is bound to uphold not merely the letter of the contract, but the spirit of fairness, equality and compassion.”

On the finding that nobody junior to the deceased employee had been regularized, the Court held that an employee had an independent right of consideration irrespective of whether any junior had been regularized. It held that the finding was in any event vague, the order disclosing neither the serial number nor the name of the last person regularized from the seniority list.

Observing that it rarely directs that an employee be treated as regularized, it declined to remit the matter afresh as the only reason ever advanced for refusal being the death of the employee before the exercise could conclude which was already set aside and attained finality.

“Accordingly, this Court holds that the deceased employee shall be deemed to have been regularized from the date on which he became eligible for such benefit. All consequential entitlement, including monetary and otherwise, shall accordingly be made over to the legal heirs, who today stand not merely as a claimant to the financial dues, but as representatives of a moral wrong seeking redress.”

The second respondent was directed to consider the petitioner's claim and, if it lay outside his competence on account of delay or any other valid reason, to forward it to the State Government under Rule 5(iii) read with Rule 10, within two months.

Accordingly, the writ petition was allowed with costs of Rs 50,000 awarded in favour of the petitioner.

Case Title: Hasan Ahmad v. State of U.P. Thru. Secy. Rural Engineering Deptt. U.P. Lko. and 2 others

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