Employees Of District Rural Development Agency Not Govt Employees But Rules For Compassionate Appointment Are Applicable To Them: Allahabad High Court [FB]

A Full Bench of Justices Ramesh Sinha, Chandra Dhari Singh and Manish Mathur held thus in view of paragraph 2(9) of the Government Order dated March 17, 1994, which provides that in respect of matters of employment of DRDA employees, for which there is no specific provision in the said Government Order, such employees would ordinarily be governed by provisions as are applicable upon employees of the State Government.

"A perusal of the Government Order does make it evident that the service rules applicable upon Government servants with regard to appointment, seniority, promotion, reservation etc. have been made applicable upon employees of the DRDA," the Bench observed.

Background

The Full Bench was answering a reference made by a Single Bench in a writ petition challenging an order dated May 22, 2017, whereby claim for grant of compassionate appointment under the 1974 Rules was rejected on the ground that the same are inapplicable in the case of employees of the DRDA.

The Single Judge noticed that a Division Bench in State of UP & Ors. v. Pitamber (2010) had held the DRDA to be 'State' within meaning of Article 12 of the Constitution of India but at the same time it was also held that the employees of DRDA do not hold any civil post either under the State or the Central Government and do not, therefore, come within purview of the definition 'government employees'.

It was held that merely because an Association falls under the expression 'instrumentality of State' within the meaning of Article 12 of the Constitution, it would not make its employees come within the definition of government employees

It is on this latter reasoning that another Division Bench in State of UP v. Ajeet Kumar Shahi rejected the claim for compassionate appointment to dependent of an employee of DRDA holding that the 1974 Rules are applicable only upon Government employees.

Findings

Pervasive State Control

The Full Bench observed that the State Government has all pervasive control over the administration of the DRDA.

For instance, the office memorandum which led to creation of DRDAs provide that they shall be controlled and governed by the State Government and it will be headed by the Collector/Deputy Commissioner in each district.

Further, Rule 14 of the bye-laws provide that every employee of DRDA body shall be governed by Service Conduct Rules of the State Government.

Furthermore, even though the governing body of the DRDA is the appointing authority of its employees but, the same would be subject to the directions issued by the Central or the State Government.

Doctrine of 'Occupied Field'

The Bench applied the doctrine of 'occupied field' to hold that the void pertaining to conditions of service of employees of the DRDA, has been filled by issuance of Government Order dated March 17, 1994.

It noted that even though no specific service condition has been indicated in the Government Order pertaining to compassionate appointment. However, a reading of paragraph 2 (9) of the Government Order indicates that other matters which are not covered specifically with the Government Order or any other special order pertaining to employees of the DRDA would be regulated by such rules, regulations and orders which generally apply to Government servants serving with regard to affairs of the State.

'Approbate & Reprobate'

The Court was informed that except for the provisions of compassionate appointment, rest of the service conditions indicated in the Government Order have been implemented in the DRDAs throughout the State.

Taking exception to this, the Full Bench opined that the principle of approbate and reprobate would be applicable in the present circumstance and the opposite parties cannot be permitted to repudiate the conditions of service which are beneficial to the employees of the DRDA while applying other similar such service conditions.

"A reading of the aforesaid paragraph 2(9) of the Government Order makes it evident that there is no specific exclusion of compassionate appointment being granted to employees of the DRDA in terms of the 1974 Rules. On the contrary, the said provision clearly indicates that matters which are not specifically covered in the Government Order would be regulated and applicable as per the rules, regulations and orders generally applicable upon Government servants serving with regard to State affairs. As such, it is clear that compassionate appointment under the 1974 Rules would be covered under the said paragraph 2(9) of the Government Order," the order stated.

Providing benefits of 1974 Rules to DRDA Employees would not give them status of Government Servants

The State counsel had argued that the employees of the DRDA have already been held not to be government servants since they are not holding any civil posts under either the Central or the State Governments and, therefore, providing benefit of the 1974 Rules to employees of the DRDA would amount to giving them the status of Government servants.

Rejecting this argument, the Full bench held,

"By extending the benefit of 1974 Rules upon employees of the DRDA, it cannot be said by any stretch of imagination that it would confer the status of Government employees upon them. Incorporation of the said Rules by reference merely amounts to providing the benefit of a beneficial legislation. As such, extending the benefit of compassionate appointment under the 1974 Rules upon the employees of the DRDA would only have the effect of providing the said beneficial benefit and not granting them the status of Government servants."

Ajeet Kumar Shahi (supra) Overruled

The Full Bench also noted that the decision in State of UP v. Ajeet Kumar Shahi requires reconsideration since the same was passed in ignorance of a Government Order dated July 18, 2016 as per which- employees of the DRDA throughout the State of UP have been absorbed in the department of Rural Development of the State Government.

"Considering the aforesaid factors, the reference has to be answered regarding applicability of the 1974 Rules upon employees of DRDA appointed or working prior to issuance of Government Order dated 18.07.2016 since the said employees after absorption already have the status of State Government employee upon whom the 1974 Rules are automatically applicable now," the Full Bench held.

It added, "The judgment of Division Bench in Ajeet Kumar Shahi (Supra) having been passed in ignorance of Government Order dated 17.03.1994 is held not to be a good law and is, therefore, overruled."

Case Title: Kalyani Mehrotra v. State of UP & Ors.

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