# Aditya Kumar Singh v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-22
- **Case number:** Writ A No. 1834 of 2001
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditya-kumar-singh-v-state-of-u-p-ors-49936
- **Pages:** 4

## Headnote

Law
-
Extension
of
Appointment/Regularization - Payment of
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Salary - Long standing service of the
petitioner is liable to be regularized in
view of the said set of facts and grounds.

It is evident that Sri Rajendra Bahadur Singh
went on leave on 17.09.1997. Almost 26 years
have passed and he has not come back to join
the post. Meaning thereby, he is not interested
to come back and join the post. The petitioner is
continuously discharging his duty on the post of
Assistant Teacher in the vacancy due to leave
granted to Sri Rajendra Bahadur Singh. Time to
time approval has also been accorded by the
District Basic Education Officer for extension of
service of the petitioner. Lastly, vide order dated
23.06.2002 direction was issued by the District
Basic Education Officer to permit continuance of
the petitioner till further order passed by him.
(Para 10)

Accordingly, this writ petition is finally disposed
of with a direction to the District Basic Education
Officer,
Unnao
to
pass
an
order
for
regularization of service of the petitioner within
a period of six weeks from the date of
production of a certified copy of this order.
However, the petitioner shall be permitted to
continue on the post of Acting Headmaster and
to pay regular monthly salary month by month.
(Para 12)

Writ petition disposed of. (E-4)

## Text

3 All. Aditya Kumar Singh Vs. State of U.P. & Ors.
133
Regulations of 1975 and the definition of
family included the daughter but excluded
married daughter.

13. This Court in the aforesaid Full
Bench has not accepted the stand of the
State which proceeds on a paternalistic
notion of the position of a woman in our
society and particularly of the position of
a
daughter
after
marriage.
The
assumption
that
after
marriage,
a
daughter cannot be said to be a member
of the family of her father or that she
ceases to be dependent on her father
irrespective
of
social
circumstances
cannot be countenanced. The test in
matters of compassionate appointment is
a test of dependency within defined
relationships. There are situations where
a son of the deceased government servant
may not be in need of compassionate
appointment because the economic and
financial position of the family of the
deceased are not such as to require the
grant of compassionate appointment on a
preferential basis. But the dependency or
a lack of dependency is a matter which is
not determined a priori on the basis of
whether or not the son is married.
Similarly, whether or not a daughter of a
deceased
should
be
granted
compassionate appointment has to be
defined with reference to whether, on a
consideration of all relevant facts and
circumstances, she was dependent on the
deceased government servant. Excluding
daughters purely on the ground of
marriage
would
constitute
an
impermissible
discrimination
and
be
violative of Articles 14 and 15 of the
Constitution.

14. Accordingly, it is held that
exclusion of married daughter from the
ambit of family in the Note appended in
sub clause (V) in Regulation 104 of the
Regulations
of
1975
is
illegal,
unconstitutional and violative of Articles
14 and 16 of the Constitution of India.
Accordingly, the word 'unmarried' in the
said Note is struck down.

15. The
impugned
orders
dated
29.6.2021 and 1.7.2022 passed by opposite
party No.2 are quashed.

16. A direction is issued to the
respondents to consider the claim of the
petitioner for compassionate appointment
again in light of the decision of the Full
Bench in the case of Vimla Srivastava
(supra) as well as the directions issued
hereinabove and the case of the petitioner
would not be rejected merely on the ground
that she is a married daughter.

17. In light of the above, the writ
petition stands allowed.
----------
(2023) 3 ILRA 133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2023
BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ A No. 1834 of 2001

Aditya Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
H.G.S. Parihar, Meenakshi Singh Parihar

Counsel for the Respondents:
C.S.C., Ghaus Beg, R.K. Katiyar, Rajiv Singh
Chauhan

A.
Service
Law
-
Extension
of
Appointment/Regularization - Payment of
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Salary - Long standing service of the
petitioner is liable to be regularized in
view of the said set of facts and grounds.

It is evident that Sri Rajendra Bahadur Singh
went on leave on 17.09.1997. Almost 26 years
have passed and he has not come back to join
the post. Meaning thereby, he is not interested
to come back and join the post. The petitioner is
continuously discharging his duty on the post of
Assistant Teacher in the vacancy due to leave
granted to Sri Rajendra Bahadur Singh. Time to
time approval has also been accorded by the
District Basic Education Officer for extension of
service of the petitioner. Lastly, vide order dated
23.06.2002 direction was issued by the District
Basic Education Officer to permit continuance of
the petitioner till further order passed by him.
(Para 10)

Accordingly, this writ petition is finally disposed
of with a direction to the District Basic Education
Officer,
Unnao
to
pass
an
order
for
regularization of service of the petitioner within
a period of six weeks from the date of
production of a certified copy of this order.
However, the petitioner shall be permitted to
continue on the post of Acting Headmaster and
to pay regular monthly salary month by month.
(Para 12)

Writ petition disposed of. (E-4)

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Ms. Meenakshi Parihar
Singh, learned counsel for the petitioner,
learned Standing Counsel for respondent
nos.1,
Shri
Madhukar
Dixit,
learned
counsel for respondent no.2 and Shri Rajiv
Singh Chauhan, learned counsel for the
respondent no.3.

2. By means of the present writ
petition, the petitioner has prayed for
issuance of a writ in the nature of
Mandamus commanding the respondents to
allow the petitioner to work on the post of
Assistant Teacher and pay him salary
regularly each and every month without
any break till Sri Rajendra Bahadur Singh
is on leave.

3. Factual matrix of the case is that Sri
Rajendra Bahadur Singh, Assistant Teacher
proceeded on leave without pay on
17.9.1997. The petitioner was granted
appointment under Rule 20 of the Rules
against the vacancy which was caused due
to leave granted to Sri Rajendra Bahadur
Singh on 13.11.1997. The appointment of
the petitioner was approved by the District
Basic Education Officer for a period of six
months from 13.11.1997 vide order dated
20.12.1997. The District Basic Education
Officer
approved
the
extension
of
appointment of petitioner for a period of six
months from 1.7.1998 vide order dated
25.5.1998.

The District Basic Education
Officer again approved the extension of
appointment of petitioner for a period of six
months upto 20.5.1999 vide order dated
21.12.1998.
The
Committee
of
Management took decision for extension of
appointment of petitioner upto 30.6.2007as
the leave without pay of Rajendra Bahadur
Singh was sanctioned by the Committee of
Management
upto
30.6.2007
vide
resolution dated 15.5.1999. Letter was sent
by the Management seeking approval of the
District
Basic
Education
Officer
for
extension of appointment of petitioner upto
30.6.2007 vide covering letter dated
17.5.1999. In response to the letter dated
17.5.1999, the District Basic Education
Officer
accorded
approval
to
the
appointment of
petitioner
only
from
1.7.1999 to 31.12.1999.

The Manager of the Committee
of Management again wrote letter to
District
Basic
Education
Officer
for
approval of extension of appointment of the
3 All. Aditya Kumar Singh Vs. State of U.P. & Ors.
135
petitioner upto 30.6.2007. In response to
the letter dated 12.11.1999 the District
Basic Education Officer accorded approval
to the extension of the petitioner only for a
period of six months i.e. upto 30.6.2000
vide order dated 31.12.1999. The Manager
of the Committee of Management again
wrote letter dated 27.5.2000 to the District
Basic Education Officer for extension of
appointment of petitioner upto 30.6.2007.

The District Basic Education
Officer
vide
letter
dated
27.5.2000
approved the extension of the petitioner
only for a period of six months. Approval
of the extension of the appointment of
petitioner from 1.1.2001 to 20.5.2001 has
been
granted
by
the
District
Basic
Education Officer and artificial break is
being made in the service of the petitioner
and his appointment is being extended only
in piece meal only for a period of six
months and artificial break has been given
from 18.5.1998 to 30.6.1998 and 21.5.1999
to 30.6.1999. Feeling aggrieved, the
petitioner has filed the present writ petition.

4. This Court vide order dated
20.4.2001 passed the following order:

"Issue notice.

Notices on behalf of respondents
no.1 and 2 has been accepted by the
learned Chief Standing Counsel and notice
on behalf of respondent No.3 has been
accepted by Sri R.K. Katiyar, Advocate. Sri
Rajiv Sharma, learned STanding Counsel
prays for and is granted four weeks time to
file counter affidavit after serving its
duplicate on the counsel for the petitioner,
who may, if he so desires to file rejoinder
affidavit within next two weeks.

Issue notice to respondent No.4 to
show cause as to why writ petition be not
admitted and if possible be not disposed of
finally on the date of time of admission.

Petitioner shall take steps for
notice on respondent no.4 by registered
post and also by speed post and for
purpose of dasti summons be issued to the
learned counsel for the petitioner within
three days.

List in the first week of July,
2001. Till the next date of listing status-quo
exists as on today, shall be maintained by
the parties to the writ petition."

5. In compliance of the order of this
Court, the District Basic Education Officer
passed an order on 23.6.2002 whereby it
has been directed that the status quo shall
be maintained till further orders of this
Court. In compliance of the order of this
Court as well as order of the District Basic
Education Officer dated 23.6.2002, the
petitioner is continuously discharging his
duty and has been paid salary in pursuance
thereof.

6. Supplementary affidavit has been
filed by the petitioner enclosing copy of the
order of the Finance & Accounts Officer,
Basic Education, Unnao dated 1.7.2017 as
Annexure No.A-1 wherein it has been
stated that since 8.12.1997, benefits of
regular salary, annual increment, G.P.F
Deduction and Group Insurance etc. have
been granted keeping in view past 19 years'
satisfactory services of the petitioner. Vide
order dated 8.12.1997 (Annexure A-2 to the
supplementary affidavit), selection grade
was provided with effect from 18.11.2007
and now, he is officiating Headmaster of
the Junior Highschool.

7. Submission of learned counsel for
the
petitioner
is
that
taking
into
consideration the long standing service of
the petitioner as Assistant Teacher in the
institution, his service is liable to be
regularized. She next submits that the
136 INDIAN LAW REPORTS ALLAHABAD SERIES
person who went on leave, has not come
back since 1997, therefore, the service of
the petitioner is liable to be regularized.
Her last submission is that the long
standing service of the petitioner is liable to
be regularized in view of the said set of
facts and grounds.

8. On the other hand, learned Standing
Counsel for the respondent nos.1 and 2 and
Shri Rajiv Singh Chauhan, learned counsel
for the respondent no.3 submit that the
appointment of the petitioner was made
under Rule 20 for a period of six months,
but due to non-availability of the teacher
who went on leave, the service of the
petitioner
was
extended
and
he
is
continuously discharging his duty. The
vacancy has not become substantive,
therefore, the claim for regularization is not
available to the petitioner.

9. I have considered the submissions
advanced by learned counsel for the
parties and perused the material available
on record.

10. On its perusal, it is evident that
Sri Rajendra Bahadur Singh went on
leave on 17.9.1997. Almost 26 years have
passed and he has not come back to join
the post. Meaning thereby, he is not
interested to come back and join the post.
The
petitioner
is
continuously
discharging his duty on the post of
Assistant Teacher in the vacancy caused
due to leave granted to Sri Rajendra
Bahadur Singh. Time to time approval
has also been accorded by the District
Basic Education Officer for extension of
service of the petitioner. Lastly, vide
order dated 23.6.2002 direction was
issued by the District Basic Education
Officer to permit continuance of the
petitioner till further order passed by him.

11. In view of the above, there is no
justification to keep this writ petition
pending any more.

12. Accordingly, this writ petition is
finally disposed of with a direction to
District Basic Education Officer, Unnao to
pass an order for regularization of service
of the petitioner within a period of six
weeks from the date of production of a
certified copy of this order. However, the
petitioner shall be permitted to continue on
the post of Acting Headmaster and to pay
regular monthly salary month by month.
----------
(2023) 3 ILRA 136
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.03.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ A No. 3979 of 2022

Uday Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Avinash Tiwari

Counsel for the Respondents:
C.S.C., Shubham Tripathi

A.
Education/Service
Law
-
Recruitment/Selection/Appointment
-
Sanjay Gandhi Post Graduate Institute of
Medical Sciences Act, 1983 - The proper
and appropriate remedy in a situation
where enforcement of the right depends
upon the acceptance of a policy of
examination
for
admission
in
any
particular language to the Institution on
that basis, is a matter of policy and cannot
be appropriately dealt with u/Article 32 of
the Constitution. It is difficult to accept
that in not holding entrance examination