# Akash Srivastava v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-16
- **Case number:** Writ A No. 7622 of 2024
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akash-srivastava-v-state-of-u-p-ors-54642
- **Pages:** 5

## Headnote

A. Service Law - UP Dying in Harness
Rules, 1974 - Rule 5 (1) - Compassionate
appointment - Mother of deceased was
already in Government Service - Effect -
Held, appointment on compassionate
ground is not a source of recruitment
but
merely
an
exception
to
the
requirement regarding appointment on
merits.
The
basic
premise
behind
compassionate appointment is the word
"compassion". It is to be provided when
the family of the deceased employee is
deprived of the means of livelihood and
its object is to enable the family to get
over the sudden financial crisis - The
mother of the petitioner is also a
government servant and thereby the
family is not deprived of means of
livelihood. (Para 12 and 13)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

162 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 10 ILRA 162
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.10.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 7622 of 2024

Akash Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Abhinav Trivedi, Parimal Bhatt

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Dying in Harness
Rules, 1974 - Rule 5 (1) - Compassionate
appointment - Mother of deceased was
already in Government Service - Effect -
Held, appointment on compassionate
ground is not a source of recruitment
but
merely
an
exception
to
the
requirement regarding appointment on
merits.
The
basic
premise
behind
compassionate appointment is the word
"compassion". It is to be provided when
the family of the deceased employee is
deprived of the means of livelihood and
its object is to enable the family to get
over the sudden financial crisis - The
mother of the petitioner is also a
government servant and thereby the
family is not deprived of means of
livelihood. (Para 12 and 13)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Special Appeal No. 73 of 2016; Kumari
Vanshika Nigam Vs St. of U.P. and 3 others

2. Sumit Kumar Sharma Vs U.O.I.& ors..; 2021
SCC OnLine All 854

3. Director of Education (Secondary) & Anr. Vs
Pushpendra Kumar & ors..; (1998) 5 SCC 192

4. Commissioner of Public Instructions & ors.. Vs
K.R. Vishwanath; (2005) 7 SCC 206

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Parimal Bhatt, learned
counsel for the petitioner as well as Sri
Indrajeet Shukla, learned Additional Chief
Standing
counsel
appearing
for
the
respondents.

2. By means of the present writ
petition the petitioner has assailed the
validity of the order dated 24.5.2024 passed
by Director, Directorate of Electrical
Safety, Government of U.P. wherein the
application for compassionate appointment
preferred by the petitioner has been
rejected. It is during pendency of the
petition that respondent No.2 has passed a
fresh order after being directed by this
Court on 19.9.2024 where the case of the
petitioner
was
again
considered
and
rejected has also been assailed in the
present writ petition.

3. The facts in brief as stated by the
petitioner are that the mother of the
petitioner, namely Smt. Manju Srivastava
was appointed and working on the post of
Junior Clerk in the office of Director,
Directorate
of
Electrical
Safety,
Government of U.P., Regional Office,
Lucknow since 1983 and unfortunately
died on 28.12.2021. Father of the petitioner
was also a government servant and was
working on the post of Review Officer in
the office of Government Advocate in
Lucknow Bench of the Allahabad High
10 All. Akash Srivastava Vs. State of U.P. & Ors.
163
Court and had attained the age of
superannuation on 10.10.2022.

4. It is on death of the mother of the
petitioner
on
28.12.2022
that
an
application was given to opposite party
No.2 seeking compassionate appointment.
After due consideration of the case of the
petitioner Director, Directorate of Electrical
Safety, Government of U.P. rejected the
application
of
the
petitioner
for
compassionate appointment on 6.12.2022.
The petitioner being aggrieved of the said
order of rejection has preferred a writ
petition before this Court bearing writ A
No.1427 of 2023 which was allowed by
means of judgment and order dated
15.2.024 and this Court had relied upon the
Division Bench judgment in the case of
Kumari Vanshika Nigam Vs. State of U.P.
and 3 others passed in Special Appeal
No.73 of 2016 and was of the view that
respondent
No.2
while
rejecting
the
representation of the petitioner had not
considered
the
relevant
facts
and
circumstances necessary for consideration
of the application for appointment on
compassionate ground and consequently
quashed the rejection order dated 6.12.2022
further directing him to reconsider the
application of the petitioner.

5. It is in pursuance of the directions
of this Court dated 16.2.2024 that the
impugned order dated 24.5.2024 was
passed by opposite party No.2. Opposite
party No.2 while passing the said order had
taken into consideration the provisions of
Rule 5 (1) of Uttar Pradesh Dying in
Harness Rules, 1974 (hereinafter referred
to as the Rules of 1974) which provides
that in case a Government servant dies in
harness after the commencement of these
rules and the spouse of the deceased
Government
servant
is
not
already
employed under the Central Government or
a State Government, one member of his
family who is not already employed under
the Central Government or a a State
Government or a Corporation owned or
controlled by the Central Government or a
State Government shall, on making an
application for the purposes, be given a
suitable employment in Government
service. On applying these rules in the case
of the petitioner it was found that his father
was working on the post of Review Officer
in the office of Government Advocate in
Lucknow High Court and the mother was
also
in
government
service
and
consequently the petitioner was not entitled
for being appointed on compassionate
grounds. It is during pendency of the
present writ petition that this Court had
passed an interim order on 12.9.2024
giving liberty to opposite party No.2 to
revisit the order . Even after revisiting its
previous order, the authority opposite party
No.2 was of the view that the petitioner
could not have been grant the benefit of
compassionate appointment considering the
bar of Rule 5 (1) of the Rules of 1974.

6. Learned counsel for the petitioner
submits that even if father of the petitioner
was employed in Government service it
would not be a bar for grant of
compassionate
appointment
to
the
petitioner. He submits that on the date of
death of his mother his father was a
government servant but on the date of when
the application was given by the petitioner
father of the petitioner had retired and
submits that only in case father of the
petitioner was in active service could the
bar created under Rule 5(1) operate against
the petitioner for grant of compassionate
appointment. He has relied upon the
judgment of this Court in the case of Sumit
Kumar Sharma Vs. Union of India and
164 INDIAN LAW REPORTS ALLAHABAD SERIES
others, 2021 SCC OnLine All854 where
this Court has held that eligibility condition
of an individual have to be considered on
the
date
of
considerations
of
his
application. He submits that on the date of
submission of his application his father had
already superannuated and consequently
the rigor of Rule 5 (1) of the Rules of 1974
would not operate against the petitioner.

7. Learned Standing counsel, on the
other hand, has opposed the writ petition.
He
submits
that
appointment
on
compassionate grounds is not a routine or
regular mode of employment but is granted
on contingencies of the fact that the
government servant has died during harness
and to prevent the dependent family members
of the government servant to fall into penury
the beneficial piece of rules have been made
for granting appointment to such an
individual. He submits that accordingly the
provisions of the Rules of 1974 are as a
measure
of
exception
to
the
regular
recruitment
and
are
supposed
to
be
interpreted in a strict manner with regard to
the eligibility of the person who has to be
considered for appointment under Dying in
Harness Rules. He submits that rule 5 (1)
clearly creates a bar for appointment on
compassionate ground to a person in such a
situation where both the parents are in
government employment or employed in a
corporation governed or controlled by the
government. Accordingly, he has supported
the impugned orders passed by opposite party
No.2 and prayed for dismissal of the writ
petition.

8. This Court has given its anxious
considerations to the arguments raised by the
petitioner as well as by the Standing counsel.

9. The facts in the present case are not
disputed in as much as both the parents of
the petitioner were in employment of the
State Government and accordingly the
issue before this Court in the present
controversy is that whether bar under Rule
5(1) of the Rules of 1974 would operate
against the petitioner for consideration of
grant of compassionate appointment ?

10. From a bare perusal of Rule 5(1) it
is clear that wherever the spouse of the
deceased government servant employed
under Central or State Government or
Corporation, owned or controlled by the
Central or State Government, he cannot
avail of the provisions of compassionate
appointment. In the present case, clearly on
the date of death which would be relevant
date for consideration of the case of the
petitioner for grant of compassionate
appointment father of the petitioner was
employed in the office of Government
Advocate of this Court and in such a
situation, the petitioner was clearly disentitled for being granted the benefit of
compassionate appointment.

11. This Court in the case of Sumit
Kumar Sharma (Supra) was considering the
eligibility conditions of the applicant
pertaining to age of the applicant for
appointment and accordingly it is in those
circumstances it was held that individual's
application has to be considered and all the
eligibility conditions on the date of
consideration of the said application. In that
case the issue before this Court was as to
whether the applicant was over-aged on the
date of consideration and it is in those
circumstances that this Court was of the
view that on the date his application was
considered he had exceeded the age
prescribed for appointment to the said post.
Accordingly, the facts of the said case were
distinguishable from the issue in the
present as in the present case the case of the
10 All. Akash Srivastava Vs. State of U.P. & Ors.
165
petitioner would be fully guided and
controlled by the provisions of Section 5
(1) of the Rules of 1974. Undoubtely, the
bar of the aforesaid rule would operate
against the petitioner in as much as both of
the parents of the petitioner were in
government service.

12. It is to be seen that appointment on
compassionate ground is not a source of
recruitment but merely an exception to the
requirement regarding appointment on
merits.The
basic
premise
behind
compassionate appointment is the word
?compassion?. It is to be provided when the
family of the deceased employee is
deprived of the means of livelihood and its
object is to enable the family to get over the
sudden financial crisis.

13. In the aforementioned case, the
mother of the petitioner is also a
government servant and thereby the family
is not deprived of means of livelihood. The
provision of compassionate appointment
cannot be misused to see employment
under the central government or State
government or any corporation owned by
them.

14. While dismissing similar petitions,
Hon?ble the Apex court has elaborated the
purpose of compassionate appointment in
various cases which clarifies the object
behind such appointments.

15.
In
Director
of
Education
(Secondary) & Anr. vs. Pushpendra
Kumar & Ors., reported in (1998) 5 SCC
192, the Supreme Court has held:

"The
object
underlying
a
provision for grant of compassionate
employment is to enable the family of the
deceased employee to tide over the sudden
crisis resulting due to death of the bread
earner which has left the family in penury
and without any means of livelihood. Out of
pure
humanitarian
consideration
and
having regard to the fact that unless some
source of livelihood is provided, the family
would not be able to make both ends meet,
a provision is made for giving gainful
appointment to one of the dependents of the
deceased who may be eligible for such
appointment. Such a provision makes a
departure from the general provisions
providing for appointment on the post by
following a particular procedure. Since
such a provision enables appointment
being made without following the said
procedure, it is in the nature of an
exception to the general provisions. An
exception
cannot
subsume
the
main
provision to which it is an exception and
thereby nullify the main provision by taking
away completely the right conferred by the
main provision. Care has, therefore, to be
taken that a provision for grant of
compassionate employment, which is in the
nature of an exception to the general
provisions, does not unduly interfere with
the right of other persons who are eligible
for appointment of seek employment
against the post which would have been
available to them, but for the provision
enabling appointment being made on
compassionate grounds of the dependent of
a deceased employee."

16. In Commissioner of Public
Instructions & Ors. Vs. K.R. Vishwanath,
reported in (2005) 7 SCC 206, the
following principles were laid down by the
Supreme Court:

"...the
claim
of
the
person
concerned
for
appointment
on
compassionate ground is based on the
premises that he was dependent on the
166 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased employee. Strictly this claim
cannot be upheld on the touchstone of
Article 14 or 16 of the Constitution of
India. However, such a claim is considered
as reasonable and permissible on the basis
of sudden crisis, occurring in the family of
such employee who has served the State
and dies while in service. That is why it is
necessary for the authorities to frame rules,
regulations or to issue such administrative
orders which can stand the test of Articles
14 and 16. Appointment on compassionate
ground cannot be claimed as a matter of
right.....High Courts and Administrative
Tribunals
cannot
confer
benediction
impelled by sympathetic considerations to
make
appointments
on
compassionate
grounds when the regulations framed in
respect
thereof
do
not
cover
and
contemplate such appointments."

17. Accordingly we do not find any
infirmity in the impugned orders dated
24.5.2024 and 6.12.2022. The petition
being devoid of merits is dismissed.
----------
(2024) 10 ILRA 166
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.10.2024

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE DONADI RAMESH, J.

Writ A No. 7743 of 2019

Justice Vinod Chandra Misra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Prakash Chandra Shukla, Sri V.K. Singh, Sr.
Advocate

Counsel for the Respondents:
C.S.C.

A. Service Law - UP St. Law Commission
Act, 2010 - Section 4 - UP St. Law
Commission (Salaries and Allowances and
Conditions of Service of Chairperson)
Rules, 2011 - Rules 4, 5 & 14 - Pension -
Retired from the post of Chairman of UP
St. Law Commission - Entitlement of
interest on delayed payment - Held,
payment of pension is a statutory right
arising from services rendered. That right
existed from before. Since there was no
conduct offered by the petitioner as may
have
delayed
the
computation
and
payment of higher pension to which he
was entitled and since there never existed
any legal impediment or doubt in that
payment, we find the stand of the St.
Government untenable insofar as interest
has not been paid on arrears of correct
pension computed with delay. The St.
must compensate for the loss of time in
making the due payment - High Court
issued direction to pay interest @ 8%.
(Para 22 and 42)

B. Service Law - High Court Judges
(Salaries and Conditions of Service) Act,
1954 - Sections 2(g), 2(gg) & 17A -
Family pension - Entitlement of the
spouse
of
retired
Chairman
of
Law
Commission - Held, under the Judges Act
and the Judges Rules 'family pension' is
included
in
'pension'
entitlement
-
'Pension' payable to a Chairperson of a St.
of Law Commission necessarily includes
within it the 'family pension' that may
become payable to the spouse of such
Chairperson, if that contingency arises -
Held further, while the petitioner demitted
office as a Judge of this High Court, he
became entitled to receive and is receiving
higher pension than payable to a retired
Judge of a High Court by virtue of his
having served as a Chairperson of the St.
Law Commission, upon application of
Section 4(5) of the Act read with Rules
4(5) of the Rules read with the Judges Act
and the Judges Rules - Spouse of the
petitioner may not be treated differently
with respect to the payment of family