# Ajay Kumar Sharma v. State Govt. of U.P. and others

- **Citation:** (2000) 2 ILRA 20
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-sharma-v-state-govt-of-u-p-and-others-39438
- **Pages:** 2

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
20
In view of the above discussion the appeal
fails and is dismissed without any order as to
costs.
---------
25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( $. <2*-
7+( +21·%/( $. <2*-
&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

$MD\ .XPDU 6KDUPD
«3HWLWLRQHU
9HUVXV
6WDWH
*RYHUQPHQW
RI
83
DQG
RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 6$ 6KDK
6KUL %6 .XOVKUHVKWKD
6KUL %& 1DLN
6KUL 6& 'ZLYHGL
6KUL 3& 6LQJK
&RXQVHO IRU WKH 5HVSRQGHQWV
6&.

'\LQJ LQ +DUQHVV 5XOHV 7HUPLQDWLRQ
RUGHU
FRPSDVVLRQDWH
DSSRLQWPHQW
WHUPLQDWLRQ
RI
VHUYLFH
UHO\LQJ
XSRQ
WKH
SURYLVLRQV RI 83 7HPSRUDU\ *RYHUQPHQW
HPSOR\HHV
WHUPLQDWLRQ
RI
VHUYLFH
5XOHV

+HOG LOOHJDO
+HOG
LPSXJQHG RUGHU VKRZV WKDW WKH DXWKRULW\
SDVVLQJ WKH LPSXJQHG RUGHU KDV UHOLHG XSRQ
WKH SURYLVLRQ RI 83 7HPSRUDU\ *RYHUQPHQW
(PSOR\HHV 7HUPLQDWLRQ RI 6HUYLFH UXOHV
 $V VWDWHG DERYH DQG QRW GLVSXWHG RQ
EHKDOI
RI
WKH UHVSRQGHQW WKH LPSXJQHG
RUGHU RI WHUPLQDWLRQ FRXOG QRW EH SDVVHG
XQGHU DIRUHVDLG 5XOHV LQ WKH IDFWV RI WKH
LQVWDQW FDVH LQ DV PXFK DV RI WKH SHWLWLRQHU LV
WR EH WUHDWHG DV SHUPDQHQW 3DUD
&DVH ODZ GLVFXVVHG.
 $/-
By the Court

1. One Shyam Bihari Lal Sharma was an
employee on Class-III post as Village
Development Officer alleged to be civil post
of government of U.P. at Block Bahadarabad,
District Haridwar. Unfortunately he died on
9.2.90 leaving behind him the petitioner (Ajay
Kumar Sharma) and three other sons as
mentioned in para 4 of the writ petition.

2. In the writ petition it has been
categorically stated that petitioner was given
appointment on compassionate ground under
relevant 'dying in harness rules, 1974' which
were applicable to the facts of the instant case.
This fact has not been disputed by the
respondent in the counter affidavit. A copy of
the appointment letter has been filed on
25.05.90 which has been filed as annexure-1
to the writ petition. In pursuance of the
aforementioned
appointment
letter,
the
petitioner joined the post of peon on 7.6.90,
the appointment letter however, mentioned
that appointment of the petitioner was
temporary.

3. By the order dated 26.9.95, filed as
annexure -3 to the petition issued by Block
Development Officer, Banadarabad, District
Haridwar indicates that the petitioner was
appointed on 7.6.90. and thereafter he was
given benefit of annual increment in salary
uninterruptedly.
Another
order
of
Jt.
Development Commissioner dated 14.1.97
(annexure-4) to the writ petition shows that
petitioner was sought to be transferred.

4. The aforesaid facts have not been
disputed in the counter affidavit as also
admitted to the learned standing counsel. In
view of the above it appears that petitioner
was treated as temporary employee but he was
treated as purely temporary employee. Even
otherwise this court in the decision reported in
1997 ALJ 834 held that compassionate
appointment cannot be for short- term.

5. Needless to mention that appointment
in dying in harness rules cannot and should
2All] Ajay Kumar Sharma V. State Govt. of U.P. and others
21
not be temporary or adhoc as it will
frustrate the very purpose of the rules 'namely
to save the family from distress'.

6. Ajay Kumar Sharma (petitioner), son of
the deceased employee Shyam Bihari Lal
Sharma, has filed this petition challenging the
validity of the impugned order of termination
of service dated 7.7. 97 passed by the District
Development Officer Haridwar (annexure-5)
to the writ petition.

7. The impugned order shows that the
authority passing the impugned order has
relied upon the provision of U.P. Temporary
Government
Employees
(Termination
of
Service) rules 1975. As stated above and not
disputed on behalf of the respondent, the
impugned order of termination could not be
passed under aforesaid rules in the facts of the
instant case in as much as the petitioner is to
be treated as permanent. Further, the counter
affidavit (para-8) shows that the termination
of the petitioner cannot be justified on the
ground that it cast stigma if the 'veil' is lifted
and true nature of the termination is being
ascertained. It is well settled, now that court
can always x-ray the facts and find out the
correct nature of the termination order and if
it is found that it is penal in nature, the same
cannot be sustained if passed in violation of
principle of natural justice or the relevant
rules requiring opportunity of hearing or
termination is or punishment to the delinquent
employee.

8. In view of the above impugned order
dated 7.7.97 (annexure-5) passed by the
respondent
no.3
(District
Development
Officer, Haridwar) is nearby set-aside, the
respondents are directed to ignore the
impugned order as being ab-initio treat the
petitioner in service continuously and pay
salary as well as arrears as may be due in
accordance with law giving benefit of
increment etc. within two months of the
receipt of a certified copy of this judgement
and continue to pay few salary month by
month as is being paid to other similarly stress
employee in the department. It is further made
clear that it any person has been appointed on
the post held by the petitioner, he shall not be
thrown on street and will be adjusted in
accordance with law. If there is no post a
supernumerary post shall be sanctioned to
safeguard the interest of a person who is not
before this court. This order is passed in
consonance with the order dated 13.8.97
passed by this court on the writ petition which
provided that any appointment made on the
post held by the petitioner shall be subject to
the final result of the writ petition.

9. Petitioner shall be entitled to the salary
only with effect from the date of actual
joining of the duty in pursuance to this
Judgement, copy of this Judgement be filed
before the concerned authorities within six
weeks from today. The question of arrear of
salary for absentee period may be considered
by the authorities in accordance with law,
namely whether he has been employed
gainfully or not during the period in question.

The writ petition stands allowed subject to
the observations made above. No order as to
costs.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

9HG 3UDNDVK 7\DJL
3HWLWLRQHU
9HUVXV
,VW $'- 3LOLEKLW DQRWKHU «5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL .. $URUD
&RXQVHO IRU WKH 5HVSRQGHQWV
6&
6KUL $. *R\DO