# Abhishek Mishra v. Hon'ble High Court of Judicature at Allahabad & Ors

- **Citation:** (2022) 9 ILRA 219
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-15
- **Case number:** Writ A No. 14029 of 2022
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-mishra-v-hon-ble-high-court-of-judicature-at-allahabad-ors-48994
- **Pages:** 5

## Headnote

Law
-
Compassionate
Appointment - Dying in Harness Rules -
"suitable appointment" so indicated in Rule
5 should be understood with the reference
to the post held by the deceased employee
and in the present case since the deceased
employee
was
holding
Class-III
post,
therefore, any suitable appointment to his
dependent should be given in the same
category if the petitioner is having all
required qualifications. (Para 13)
Liberty be given to the petitioner to furnish all
required documents before the opposite parties
including any document/certificate relating to his
knowledge of Urdu as well as of Hindi & English
typing with required speed within a period of two
weeks from the date of this order supporting with
an
exhaustive
representation
and
if
such
representation along with the required documents
is produced before the concerned opposite party,
the appropriate decision shall be taken in favour of
the petitioner in view of what has been considered
and directed and any suitable appointment shall be
provided to the petitioner strictly in accordance
with law with expedition preferably within a period
of four weeks thereafter. (Para 15, 16)

Writ Petition allowed. (E-4)

Precedent followed:

## Text

9 All. Abhishek Mishra Vs. Hon'ble High Court of Judicature at Allahabad & Ors.
219
forwarded by the Senior Superintendent of
Police, Varanasi to the Police Radio
Establishment Board for its consideration,
the Police Radio Establishment Board had
of its own come to the conclusion that
indeed it was not conducive to the
discipline of unit incharge of safety and
security of a highly sensitive place i.e. Shri
Kashi
Vishwanath
Temple/Gyanvapi
Mosque, Varanasi for such a person as the
petitioner to continue to be posted there.
Such an order cannot be faulted with.

15. The writ petition is dismissed as
being devoid of merit. No order as to costs.
----------
(2022) 9 ILRA 219
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ A No. 14029 of 2022

Abhishek Mishra ...Petitioner
Versus
Hon'ble High Court of Judicature at
Allahabad & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nikhil Kumar, Sri Prashant Kanha

Counsel for the Respondents:
Sri Ashish Mishra, Sri Rahul Agarwal

A.
Service
Law
-
Compassionate
Appointment - Dying in Harness Rules -
"suitable appointment" so indicated in Rule
5 should be understood with the reference
to the post held by the deceased employee
and in the present case since the deceased
employee
was
holding
Class-III
post,
therefore, any suitable appointment to his
dependent should be given in the same
category if the petitioner is having all
required qualifications. (Para 13)
Liberty be given to the petitioner to furnish all
required documents before the opposite parties
including any document/certificate relating to his
knowledge of Urdu as well as of Hindi & English
typing with required speed within a period of two
weeks from the date of this order supporting with
an
exhaustive
representation
and
if
such
representation along with the required documents
is produced before the concerned opposite party,
the appropriate decision shall be taken in favour of
the petitioner in view of what has been considered
and directed and any suitable appointment shall be
provided to the petitioner strictly in accordance
with law with expedition preferably within a period
of four weeks thereafter. (Para 15, 16)

Writ Petition allowed. (E-4)

Precedent followed:

1. Suneel Kumar Vs St. of U.P. & ors., 2022 Live
Law (SC) 675 (Para 8)

Present writ petition assails report dated
22.02.2022,
passed
by
Chairman,
Consultative
Committee/1st
Additional
District Judge, Agra and letters/orders
dated 03.03.2022 and 16.08.2022, issued by
District Judge, Agra.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Nikhil Kumar, learned
counsel for the petitioner and Sri Rahul
Agarwal, learned counsel for the High
Court/respondents.

2. The prayer of this petition is as
under:

(a) issue a writ order or direction
in the nature of certiorari calling for the
record of the case and quashing the
impugned order dated 16.08.2022 passed
by the Respondent no. 2 and letter no.
1378/I Agra dated 03.03.2022 written by
the respondent no. 2 to respondent no. 1
and report dated 22.02.2022 submitted by
220 INDIAN LAW REPORTS ALLAHABAD SERIES
the Committee headed by the respondent
no. 3 (Annexure 1,2 & 3 to the Writ
Petition).

(b) issue a writ, order or
direction in the nature of mandamus
commanding the respondent no. 2 to
consider the appointment of the petitioner
on any suitable class III post on the
compassionate ground as expeditiously as
possible preferably within a period of one
month or as may be fixed by this Hon'ble
Court and pay salary regularly every
month to the petitioner.

(c) issue a writ, order or direction
in the nature of mandamus commanding the
respondent
no.
1
to
decide
the
representation of the petitioner dated
18.05.2022 in accordance with law as
expeditiously as possible preferably within
a period of one month or as may be fixed
by this Hon'ble Court."

3. The order under challenge is the
impugned order dated 16.8.2022 issued by
the opposite party no. 2 (Annexure no. 1)
offering an appointment to the petitioner on
Class-IV post on compassionate ground on
the recommendation report of opposite
party no. 3 dated 22.2.2022 (Annexure no.
3). The petitioner has also assailed the
order dated 3.3.2022 issued by the opposite
party no. 2 addressing to the opposite party
no. 1 seeking approval of appointment of
the petitioner on Class III post. Precisely,
the request of the petitioner for seeking
appointment under Dying in Harness Rules
was placed before the opposite party no 3
i.e. Consultative Committee at Agra which
submitted its report on 22.2.2022 before the
District Judge, Agra. The District Judge,
Agra placed such report before this Court
through Registrar General vide letter dated
3.3.2022
seeking
approval
of
the
appointment of the petitioner on Class-IV
post and thereafter the District Judge, Agra
issued an offer of appointment to the
petitioner vide letter dated 16.8.2022.
Therefore, the foundation of impugned
orders dated 3.3.2022 and 16.8.2022 is the
report of the Committee dated 22.2.2022.

4. As per the impugned report dated
22.2.2022, though the petitioner has not
produced 'CCC Certificate' but he is having
qualification of B.C.A. (Bachelor of
Computer Application), therefore, it may be
presumed that he is having sufficient
knowledge of computer application but the
petitioner has not produced any document
or certificate to show that he is having
knowledge of Urdu and Hindi / English
typing with the speed of 20/30 words per
minute, therefore, his candidature may not
be presumed to be sufficient for offering
him
appointment
on
Class-III
post.
Therefore, the petitioner has been offered
an appointment on Class-IV post.

5. The precise facts of the case is that
the father of the petitioner was serving on
the post of 'Personal Assistant' in the office
of opposite party no. 2 and after his demise
the petitioner approached the competent
authority
to
provide
any
suitable
appointment under the Dying in Harness
Rules.

Undoubtedly, the petitioner is
otherwise eligible to be appointed on
Class-III post as he is having other
requisite qualifications but he could not
produce any document / certificate to show
that he is having knowledge of Urdu and
typing certificate showing his knowledge of
Hindi / English typing with the speed of
20/30
words
per
minute
so,
such
appointment has not been offered to him
and he has been offered appointment on
Class-IV post. Though the impugned report
says that the petitioner has not produced
9 All. Abhishek Mishra Vs. Hon'ble High Court of Judicature at Allahabad & Ors.
221
any document relating to the knowledge of
typing but such document has been filed
with this petition which may be perused
and considered by the opposite parties.

6. Learned counsel for the petitioner
has shown result of petitioner, which is
enclosed as Annexure no. 5, relating to the
'Master in Computer Application' (MCA).
He has also shown the document /
certificate showing that the petitioner has
completed the course of English and Hindi
typing. So far as the certificate relating to
the knowledge of Urdu is concerned the
petitioner has clearly indicated in para 15
of the writ petition that the petitioner is
having special knowledge of Urdu. In para
15 the petitioner has indicated the reason as
to why such certificate has not been
produced. As per the petitioner since those
documents were not required to be filed,
therefore,
he
could
not
file
those
documents. For convenience para 15 reads
as under :

"15.
That,
it
is
respectfully
submitted that the petitioner is having special
knowledge of Urdu and the petitioner is also
having certificate of typing of Hindi/English
as required by the respondent no. 2, however,
since no demand of any certificate of typing
and special knowledge of Urdu was made
from the petitioner and as such, he could not
supply the certificate of typing and special
knowledge of Urdu. Although, the petitioner
supplied the copy of certificate of typing test
later on when he obtained the certificate from
the Unique Computer Solution, but it appears
that the respondent no. 3 has not taken into
consideration the certificate of typing course
submitted by the petitioner."

7. So as to substantiate the aforesaid
arguments
learned
counsel
for
the
petitioner has drawn attention of this Court
towards para 19 explaining the relevant
portion of the Rule wherein it has not been
indicated that those documents should be
produced before the competent authority.
For the convenience para 19 is being
reproduced herein below :

"19. That, as per the Uttar
Pradesh State District Court Service Rules,
2013 for appointment on the post of Junior
Assistant
following
qualifications
is
prescribed :-

Intermediate with maths with
special knowledge of Urdu and Hindi along
with a CCC Certificate issued by DOEACC
Society and 25/30 words per minute for
Hindi/English typing on computer, (as per
G.O.
No.
1595/VII-Nyaya-2-201168G/2011 dated 17.02.2012 (Arithmetic
mensuration) elementary land Surveying
and Mapping, Order XXVI of Act No. V of
1908 and Rules (Civil) relating to the work
and duties of the Junior Assistant."

8. Sri Nikhil Kumar, learned counsel
for the petitioner has drawn attention of this
Court towards the dictum of Apex Court in
re: Suneel Kumar vs. State of U.P. &
others reported in 2022 Live Law (SC) 675
referring para 10 which reads as under :

"10. At the same time, as far as
the question relating to the entitlement as it
were of the appellant to be considered to
the post of Gram Panchayat Officer is
concerned, it is without doubt a post borne
in Class-III. The father of the appellant was
working as a Sweeper borne in Class-IV
post. We have noticed the view taken by this
Court in Premlata (supra). In other words,
the law as declared is to the effect that the
words "suitable employment" in Rule 5
must be understood with reference to the
post held by the deceased employee. The
superior qualification held by a dependent
222 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot determine the scope of the words
"suitable employment".

 [Emphasis Supplied]

9. Per contra, the learned counsel for
the High Court has submitted that the
opposite party nos. 2 and 3 has taken a
liberal approach considering the other
qualifications of the petitioner sufficient
but since he could not produce any
document
/
certificate
showing
his
knowledge of Urdu and typing in Hindi and
English, therefore, he may not be provided
any appropriate appointment in Class III
post.

10. On being confronted the learned
counsel for the High Court on the point that
if the petitioner produces those documents
with expedition, as to whether any
appropriate
decision
may
be
taken
considering his qualification and suitability
in the light of dictum of Apex Court in re:
Suneel Kumar (supra), learned counsel for
the High Court has submitted that if the
petitioner would be fulfilling all requisite
conditions bringing on record the required
documents, the competent authority may
consider his case strictly in accordance
with law, if this Court so directs.

11. Heard learned counsel for the
parties and perused the material available
on record.

12. Notably, it it not disputed that the
petitioner is otherwise eligible to be
considered for appointment on Class- III
post
so
he
may
be
offered
such
appointment under Dying in Harness Rules
in view of the dictum of Apex Court in re:
Suneel Kuamr (supra).

13. The analogy of para 10 of the
judgment in re: Suneel Kumar (supra) is
that the term "suitable appointment" so
indicated in Rule 5 should be understood
with the reference to the post held by the
deceased employee and in the present case
since the deceased employee was holding
Class-III post, therefore, any suitable
appointment to his dependent should be
given in the same category if the petitioner
is having all required qualifications.

14. The qualification of the petitioner
is Masters in Computer Application (MCA)
and he has got knowledge of Hindi and
English typing. As per learned counsel for
the petitioner he can produce the document
/ certificate showing that he has got
knowledge of Urdu.

15. In view of the specific recital vide
para 15 and 19 of the petition, the required
documents, so enclosed with the writ
petition as well as the dictum of Apex
Court in re: Suneel Kumar (supra), I find it
appropriate that the liberty be given to the
petitioner to furnish all required documents
before the opposite parties including any
document / certificate relating to his
knowledge of Urdu as well as of Hindi &
English typing with required speed within a
period of two weeks from today supporting
with an exhaustive representation and if
such representation along with the required
documents
is
produced
before
the
concerned opposite party, the appropriate
decision shall be taken in favour of the
petitioner in view of what has been
considered and directed above and any
suitable appointment shall be provided to
the petitioner strictly in accordance with
law with expedition preferably within a
period of four weeks thereafter.

16. In view of the aforesaid
observations and directions, I also find it
appropriate that the impugned report dated
9 All. Surendra Kumar Gupta Vs. State of U.P. & Ors.
223
22.2.2022 passed by the opposite party no.
3 i.e. Chairman, Consultative Committee /
1st Additional District Judge, Agra as well
as the consequential letters / orders dated
3.3.2022 and 16.08.2022 are hereby set
aside and quashed and a fresh decision
shall be taken strictly in accordance to law
in terms of the aforesaid directions within
aforesaid stipulated time.

17. Accordingly the writ petition is
allowed.

18. No order as to costs.
----------
(2022) 9 ILRA 223
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 55825 of 2015

Surendra Kumar Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Gupta

A. Service Law
- UP Intermediate
Education
Act,
1921
-
Regulations
framed under the Act of 1921 - Reg. 32
&
33
-
UP
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
other
Employees) Act, 1971 - Punishment of
withholding two increments - Prior
approval of the Board not obtained, how
far
invalidate
punishment
-
Held,
assuming
that
the
punishment
of
withholding two increments, has been
inflicted in accordance with Law, after
following
the
procedure
prescribed
under the Regulations contained in
Chapter III of the Regulations framed
under the Act of 1921, the punishment
would still be void, unless there was
prior approval thereof by the Board
constituted under the Act of 1982. (Para
23)
B. Service Law - Regulations framed
under the Act of 1921 - Reg. 72 & 73 -
Entitlement of promotion and promotion
grade salary - Adverse entry in service
book - Non-communication of adverse
entry to the teacher - No opportunity to
represent against it - Effect - Held,
recording adverse entries behind the
petitioner's back, which were never
communicated to him, contrary to the
provisions of Regulation 72, cast a
shadow
of
grave
doubt
about
the
authenticity the resultant validity of the
adverse
entries,
on
which
the
respondents rely
- Uncommunicated
adverse ACRs/entries cannot be relied
upon for the purpose of consideration
for promotion. (Para 38 and 39)
C.
Service
Law
-
Promotion
-
Entitlement - Pendency of criminal case
- Effect - Held, the Law relating to
promotion, grant of promotion pay scale
etc. against an employee, who is facing
disciplinary
proceedings
or
criminal
charges, is not that such an employee is
not to be considered for the grant of
promotion or promotion pay scale at all.
(Para 42)
D. Interpretation of Statute - Mandate
of statute - Mala fide in Law - If
statutory
regulations
require
a
particular thing to be done in a specified
manner, it has to be done in that manner
- If a mandatory provision in a statutory
regulation,
that
has
adverse
civil
consequences
on
the
rights
of
an
employee, is observed in breach, there is
a clear case of mala fides in Law. (Para
38)
Writ petition allowed. (E-1)