Allahabad HC Deems Work Charge Employee Regularised Posthumously, Awards ₹50,000 Costs for Repeated Defiance of Court Orders

The Lucknow Bench held that the right to regularisation survives an employee's death, directing compassionate appointment consideration for his son and censuring the Rural Engineering Department for flouting court mandates across multiple rounds of litigation.

The Lucknow Bench of the Allahabad High Court has held, in Hasan Ahmad v. State of U.P. and Others, that the right to be considered for regularisation does not perish with an employee's death when that right had already crystallised during his lifetime. Justice Indrajeet Shukla, sitting singly, deemed the late Rifakat Hussain — a work charge employee of the Rural Engineering Department who died in August 2012 before a regularisation drive could reach him — to have been regularised from the date he became eligible. The court directed the department to consider compassionate appointment for his son, the petitioner Hasan Ahmad, under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, and imposed costs of ₹50,000 after finding the department had repeatedly recycled reasoning that this court had already set aside.

The Dispute Before the High Court

Rifakat Hussain was engaged as a Junior Assistant in the Work Charge Establishment of Rural Engineering Department, Block Hardoi, on 1 November 1985. He served the department for more than eighteen years. In 2005, the State carved out a seniority list for regularisation 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; Rifakat Hussain's name appeared at serial number 58.

On 21 June 2012, the State Government sanctioned 172 Group-C posts for regularisation of daily wage, work charge, and court case employees in the pay band of ₹5,200–20,200 with Grade Pay of ₹1,900. A Selection Committee was constituted and by letter dated 14 August 2012 directed the Executive Engineer, Block Hardoi, to certify requisite records so that employees could appear before the committee on 30 August 2012.

Rifakat Hussain died on 11 August 2012 — three weeks before that appearance date. Other similarly situated employees were regularised when the drive concluded in January 2013. His family was left with nothing.

Rifakat Hussain's widow, Smt. Zahida Begum, first approached this court by way of Writ Petition No. 10144(SS) of 2017. That petition was disposed of on 23 March 2018 directing the Director and Chief Engineer, Rural Engineering Department, to first consider the deceased's regularisation claim and, if it found favour, to then process the widow's compassionate appointment claim under the 1974 Rules. The operative direction took note of the Division Bench judgment in State of U.P. and others v. Kuldeep Thakur, reported as 2017 (4) ADJ 94 (DB).

Instead of following that direction in substance, the second respondent passed an order dated 8 October 2018 refusing regularisation on the single ground that Rifakat Hussain had died before the regularisation process was completed. The order also held that the 1974 Rules contained no provision for appointment of dependants of work charge employees, rejecting the widow's claim entirely.

Smt. Zahida Begum challenged that order in Writ-A No. 3792 of 2019. This court, by judgment dated 27 January 2023, set aside the October 2018 order and issued a clear mandate: if persons junior to the deceased had been regularised, the same benefit was to be extended to him, and only thereafter was the compassionate claim to be processed. The authority was given six weeks.

The department responded with an order dated 17 March 2023 — the order now impugned — repeating, almost verbatim, the same reasoning that had been set aside in January 2023. The petitioner Hasan Ahmad, son of the deceased, filed the present Writ-A No. 4739 of 2024, seeking quashing of the March 2023 order and regularisation with consequential compassionate appointment.

The Legal Questions

Justice Shukla identified a fundamental question at the outset: “whether a person's legal right perishes with his death, more particularly when they devolve upon the surviving legal heirs, especially right of consideration of regularization”.

Two interlocking issues arose. First, whether the right to be considered for regularisation had crystallised in Rifakat Hussain's favour before his death, such that his demise did not extinguish it. Second, whether the consequential claim for compassionate appointment under the 1974 Rules could be considered in favour of his dependant, given that the 1974 Rules ordinarily apply only to “Government servants” and the Full Bench of this court in Pawan Kumar Yadav v. State of U.P., (2010) 8 ADJ 664, had held that daily wage and work charge employees are not Government servants within Rule 2(a)(iii) of those Rules.

The State respondents raised additional objections: the writ petition was barred by delay and laches; the lis pursued by the mother could not be carried forward by the son as a new claim; and Rifakat Hussain, not being a confirmed employee, fell outside the definition of “Government servant” under the 1974 Rules altogether.

How the Bench Reasoned

On the Kuldeep Thakur exception, the court noted that the Division Bench in that case had recognised a distinct rule: where an employee's entitlement to regularisation had crystallised and the consideration process was already in motion, a fortuitous death does not absolve the State of its obligation to decide the regularisation claim. The Kuldeep Thakur bench had drawn on the Supreme Court's reasoning in Prem Ram v. Managing Director, Uttarakhand Pay Jal & Nirman Nigam, where regularisation benefits were directed even after an employee's retirement because juniors had been regularised, engaging Articles 14 and 16 of the Constitution.

The court found the present facts squarely within that exception. Rifakat Hussain's name appeared at serial number 58 in the seniority list prepared in 2005. The State had itself sanctioned 172 posts and constituted a Selection Committee that had already written to the Executive Engineer directing production of his records. His claim was therefore “under active consideration” when he died. Other similarly placed employees were regularised; the undisputed material showed junior employees had received the benefit.

On the impugned order's finding that no person junior to Rifakat Hussain had been regularised before the drive concluded, Justice Shukla held that assertion to be “vague and uncertain” for purposes of judicial review because the order did not disclose the serial number or name of the last person regularised from the seniority list. The court further held that even independent of whether any junior had been regularised, each employee had an independent right of consideration for regularisation.

On malice in law, the court applied the doctrine drawn from the Supreme Court's decisions in Ratnagiri Gas and Power Private Limited v. RDS Projects and Others, 2013 (12) SCC 786, and West Bengal State Electricity Board v. Dilip Kumar Ray, 2007 (14) SCC 568. Justice Shukla held that malice in law does not require personal ill-will; it is made out when an authority acts without lawful justification or in disregard of the statutory scheme. The department had been told, through a final order that had attained finality, that its reasoning was unsustainable. Recycling the identical reasoning in the impugned order was, the court found, an act taken without lawful justification. The absence of any denial in the counter affidavit to the petitioner's specific allegation that dependants of similarly placed work charge employees had been granted compassionate appointment in the same department was treated as attracting malice in law.

The court also referred to a Coordinate Bench decision in Pawan Kumar v. State of U.P. and Others (Writ-A No. 5519 of 2023, decided 23 July 2024), which followed Kuldeep Thakur to hold that authorities' failure to take a timely decision on regularisation could not defeat an accrued right to consideration. That bench had also cited Nikhil Bharadwaj v. State of U.P. and Others to the effect that prolonged retention without consideration of regularisation violates a vested right.

On whether the deceased should be treated as notionally regularised rather than remanded again, Justice Shukla was categorical. Multiple rounds of litigation — across three sets of writ petitions — had produced nothing but the same rejected reasoning. Each time the court set that reasoning aside, the department revived it unchanged. In those circumstances, a fifth opportunity for consideration would, the court held, not serve the interests of justice. The court expressly stated that it rarely directs an employee to be treated as regularised, but found no other valid impediment had ever been offered.

The court invoked the Latin maxim nullus commodum capere potest de injuria sua propria — no person can take advantage of his own wrong — to hold that the State could not benefit from its own prolonged inaction. It also observed that Hasan Ahmad was a minor at the time of his father's death and that his mother had already surrendered her claim after facing what the court described as hostile discrimination. The right of regularisation, when accrued, “travels with the person and in their absence, survives through their legal representatives.”

On the compassionate appointment claim under the 1974 Rules, the court acknowledged the Full Bench bar in Pawan Kumar Yadav. However, following Kuldeep Thakur, it held that if the deceased employee is found entitled to regularisation, the Full Bench judgment is not an impediment. Since the court had now directed that Rifakat Hussain be deemed regularised, the threshold condition for the 1974 Rules was met.

The court further noted that more than a decade had passed since the 2012 death, well beyond the five-year limit in Rule 5(iii) of the 1974 Rules for making a compassionate appointment application. However, Rule 5(iii) contains a proviso permitting the State Government to dispense with or relax the time limit where the limit causes undue hardship, provided the applicant explains the delay in writing with supporting documents. Rule 10 additionally empowers the State Government to remove difficulties in giving effect to the Rules. Justice Shukla held that the chequered litigation history constituted precisely the kind of circumstance that those provisions were designed to address.

Conduct of the Second Respondent

The court's language regarding the Director and Chief Engineer, Rural Engineering Department, was unusually sharp. The bench recorded that the impugned order of 17 March 2023 had been passed “in the teeth of the mandate issued by this Court” in a judgment that had attained finality. It described the March 2023 order as “nothing but a standing monument of the stubborn attitude of respondent authorities.” The conduct was described as ex-facie contemptuous, and the bench recorded that it “censures the conduct of the second respondent with clear stipulated warning to caution in future.”

The court noted that since a counter affidavit had been filed to defend the same repeated reasoning, no separate personal hearing was needed before recording the rebuke. It directed the order to be communicated to the Secretary, Rural Engineering Department, Government of U.P., and the Director and Chief Engineer through the Chief Judicial Magistrate, Lucknow, by the Registrar (Compliance) within 24 hours of the order.

Order

The writ petition was allowed. Justice Shukla made the following directions:

• Rifakat Hussain is deemed to have been regularised from the date on which he became eligible for such benefit. All consequential entitlements, monetary and otherwise, are to be made over to his legal heirs.
• The second respondent is commanded to consider Hasan Ahmad's claim for compassionate appointment under the Dying-in-Harness Rules, 1974. If the delay or any other valid reason places the matter beyond the second respondent's competence, it is to be forwarded to the State Government for consideration under Rule 5(iii) read with Rule 10 of the 1974 Rules.
• The entire exercise is to be completed within two months from the date a certified copy of the order is produced before the authority concerned.
• Costs of ₹50,000 are awarded in favour of the petitioner.
• The order is to be communicated to the Secretary, Rural Engineering Department, and the Director and Chief Engineer through the Chief Judicial Magistrate, Lucknow, by the Registrar (Compliance) within 24 hours.