Appointment Didn't Comply With Drivers Service Rules, Allahabad HC Denies Government Servant Status To Special Sugar Fund Employee

Background Facts

The Special Sugar Fund was created from the Uttar Pradesh Sugar Cane (Purchase Tax) Act, 1961 (Act of 1961) in the year 1974. The Cane Commissioner, Uttar Pradesh was delegated with the power to act as the Appointing Authority of the employees engaged under the Special Sugar Fund. In the year 1987, the Special Sugar Fund purchased certain motor vehicles and certain drivers were appointed for the same. The respondent was appointed on the post of driver vide order dated 19.02.1990. He continued as an employee of the Special Sugar Fund. The salary was paid from the Special Sugar Fund. The bonus was disbursed to the respondent after deducting the contributory provident fund. The relation between the State and the respondent was that of employer who employed the respondent for the Special Sugar Fund. The respondent was never granted any benefit nor he was ever treated as a government servant.

The Special Sugar Fund was repealed from 1st of July, 2017 due to the enactment of the Goods and Service Tax (GST) Act, 2016. The State Government absorbed all employees who were appointed under the Special Sugar Fund, in different Cane Development Councils. Therefore on 07.03.2019, the service of the respondent was absorbed. Later the respondent was transferred to the Cane Development Council, Nawabganj, District Gonda and during his service at Gonda, the respondent expired on 21.05.2021.

The respondent's legal heir filed a writ petition to allow the respondent to be treated as a Government Servant, having been appointed in the office of Cane Commissioner, Uttar Pradesh with all consequential service benefits. The petition was allowed by the single judge by passing an order dated 01.05.2019 directing the State to consider the respondent's claim.

Aggrieved by the same, the State preferred an appeal against the single judge order.

It was contended by the state that the respondent was never appointed in the office of Cane Commissioner. The appointment of the respondent was under the Special Sugar Fund. It was further contended that the appointment of a Government driver is governed by the Uttar Pradesh Sugar Department Drivers Service Rules, 1984. And the Rule 3(a) of these rules specifically provide for an Appointing Authority which was not the case with the respondent. Therefore the respondent was always an employee of Special Sugar Fund and not of the State Government.

On the other hand it was contended by the respondent that the appointment and regularization order of the respondent was passed by the Cane Commissioner. It was never indicated that the respondent was appointed under the Special Sugar Fund. It was further argued that the Cane Commissioner was covered under the Rules 3(a) of the Rules of 1984, hence the respondent was appointed in accordance of the Rules of 1984. It was further argued that no post of a driver was sanctioned in the Special Sugar Fund, hence, the appointment of the respondent was in the Sugar Cane Department of the State of U.P.

Findings of the Court

It was observed by the court that the appointment made by the Cane Commissioner was on behalf of an authorized nominated member of the Special Sugar Fund Committee constituted under Section 3(12) of the Act of 1961. The Cane Commissioner was not acting in his capacity as an Appointing Authority under the Drivers Service Rules, 1984. It was observed that the contributory provident fund was being deducted from the salary of the respondent during his service, and the GPF was never deducted at any point of time.

It was further observed by the court that the Special Sugar Fund did not have any sanctioned post of a driver, so the respondent was engaged on temporary and daily wages to work as a driver and the salary was being paid from the said fund. Therefore the respondent was not appointed as a driver by the Cane Commissioner under the Drivers Rules of 1984. It was further observed that the service of the respondent was made under the Special Sugar Fund.

It was held by the court that the respondent could not be treated as a Government employee as his appointment was not against a sanctioned post in terms of the Drivers Service Rules, 1984. It was further held by the court that the Single Judge erred in holding that the Cane Commissioner could confer the status of a government servant to the respondent. The order passed by the Single Judge was set aside by the court.

With the aforesaid observations, the appeal was allowed.

Case No. : SPECIAL APPEAL No. 283 of 2019

Counsel for the Appellant : Gaurav Mehrotra, Tushar Mittal, Shreiya Agarawal

Counsel for the Respondents : Ajai Kumar Srivastava