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

- **Citation:** (2024) 2 ILRA 1559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-19
- **Case number:** Writ-A No. 1201 of 2024
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akash-yadav-v-state-of-u-p-ors-51295
- **Pages:** 4

## Headnote

Law
-
U.P.
Recruitment
of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 5 -
Compassionate
Appointment
-
Petitioner
challenged rejection orders dated 27.04.2022
and
06.05.2022
denying
compassionate
appointment - Held, petitioner's father, a
Constable,
died
on
23.10.2004;
mother's
application
for
compassionate
appointment
(26.08.2006)
rejected
on
12.05.2009,
unchallenged - Petitioner, attaining majority on
02.07.2014, applied on 15.09.2016 (over 11
years after father's death, 2 years after
majority) - Rule 5 allows relaxation of 5-year
limitation period, but application filed after 11
years and 10 months deemed unreasonable -
Malaya
Nanda
Sethy
Vs
St.
of
Orissa
distinguished, as it pertains to applicable rules
at time of death, not delay - Anit Kumar Yadav
Vs St. of U.P. inapplicable, as applicant there
applied within 12 days of majority, unlike
petitioner's 2-year delay to pursue preferred
post - Umesh Kumar Nagpal Vs St. of Haryana
and Sanjay Kumar Vs St. of Bihar followed,
holding compassionate appointment aims to
address immediate financial crisis, not provide
vested right exercisable after long delay -
Petitioner's delay to qualify for preferred post
(Constable) contravenes Rules' purpose
-
Rejection
orders
upheld,
no
interference
warranted. (Para 9-17)

Writ petition dismissed.

List of Cases Cited:

## Text

2 All. Akash Yadav Vs. State of U.P. & Ors.
1559
----------
(2024) 2 ILRA 1559
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ-A No. 1201 of 2024

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

Counsel for the Petitioner:
Deepak Singh

Counsel for the Respondent:
C.S.C.

Service
Law
-
U.P.
Recruitment
of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 5 -
Compassionate
Appointment
-
Petitioner
challenged rejection orders dated 27.04.2022
and
06.05.2022
denying
compassionate
appointment - Held, petitioner's father, a
Constable,
died
on
23.10.2004;
mother's
application
for
compassionate
appointment
(26.08.2006)
rejected
on
12.05.2009,
unchallenged - Petitioner, attaining majority on
02.07.2014, applied on 15.09.2016 (over 11
years after father's death, 2 years after
majority) - Rule 5 allows relaxation of 5-year
limitation period, but application filed after 11
years and 10 months deemed unreasonable -
Malaya
Nanda
Sethy
Vs
St.
of
Orissa
distinguished, as it pertains to applicable rules
at time of death, not delay - Anit Kumar Yadav
Vs St. of U.P. inapplicable, as applicant there
applied within 12 days of majority, unlike
petitioner's 2-year delay to pursue preferred
post - Umesh Kumar Nagpal Vs St. of Haryana
and Sanjay Kumar Vs St. of Bihar followed,
holding compassionate appointment aims to
address immediate financial crisis, not provide
vested right exercisable after long delay -
Petitioner's delay to qualify for preferred post
(Constable) contravenes Rules' purpose
-
Rejection
orders
upheld,
no
interference
warranted. (Para 9-17)

Writ petition dismissed.

List of Cases Cited:

1. Malaya Nanda Sethy Vs St. of Orissa; Civil
Appeal
No.
4103
of
2022,
decided
on
20.05.2022

2. Anit Kumar Yadav Vs St. of U.P.; Service
Single No. 6439 of 2021, decided on 02.12.2021

3. Umesh Kumar Nagpal Vs St. of Har.; (1994) 4
SCC 138

4. Sanjay Kumar Vs St. of Bihar; 2000 SCC
(L&S) 895

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard learned counsel for the
petitioner and Ms. Deepshikha, learned
Chief Standing Counsel assisted by Mr.
Sandeep Sharma, learned Standing Counsel
for the opposite parties/respondents.

2. The present writ petition has been
preferred for quashing of the impugned
order
dated
27.04.2022
passed
by
respondent no.1 and the impugned order
dated 06.05.2022 passed by the Senior
Superintendent of Police, Etah whereby the
claim of the petitioner for compassionate
appointment under U.P. Recruitment of
Dependents of Government Servants Dying
in
Harness
Rules,
1974
(hereinafter
referred as 'Rules of 1974') has been
rejected.

3. Learned counsel for the petitioner
has submitted that the father of the
petitioner had expired on 23.10.2004 while
he was working on the post of Constable
(Civil Police). After the demise of the
father of the petitioner, the mother of the
petitioner i.e. Smt. Usha Yadav, wife of the
1560 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased, had moved an application for
compassionate appointment on 26.08.2006,
which
was
rejected
by
the
Senior
Superintendent of Police, Etah by its order
dated 12.05.2009.

4. It is further submitted that
thereafter the petitioner, after attaining the
age of majority, had moved an application
on
15.09.2016
for
compassionate
appointment but the authorities without
considering the case of the petitioner
regarding the hardship had rejected the
application arbitrarily.

5. It is further submitted that the
candidature
of
the
petitioner
for
compassionate
appointment
has
been
rejected by the State Government by
passing
the
impugned
order
dated
27.04.2022 and the consequential order has
been passed by the Senior Superintendent
of Police, Etah by impugned consequential
order dated 06.05.2022 i.e. after more than
about 5 years from the date of moving an
application by the petitioner which is not
permissible. Such a delay on the part of the
respondents in taking decision, makes the
decision bad in the eyes of law and in
support of his submission the learned
counsel for the petitioner has relied upon
the judgment dated 20.05.2022 of the
Hon'ble Apex Court in the case of Malaya
Nanda Sethy Vs. State of Orissa and
Others, passed in Civil Appeal No.4103 of
2022.

6. It is further submitted that the delay
of more than 11 years cannot be a ground
for rejection of the claim of the petitioner
and in support of his submission learned
counsel for the petitioner has relied upon
the judgment of this Court in the case of
Anit Kumar Yadav Vs. State of U.P. and
Others, Service Single No.6439 of 2021,
where the application was preferred after
more than 8 years of the demise of father of
the petitioner in the said writ petition.

7. On the other hand, learned counsel
for the State has submitted that the
petitioner after attaining the age of majority
on 02.07.2014 had applied after more than
2 years for compassionate appointment by
moving an application on 15.09.2016.

8. It is further submitted that the
impugned order dated 27.04.2022 has been
passed in the light of the judgments of the
Hon'ble Supreme Court hence there is no
illegality in the impugned orders which are
under challenge in the present writ petition.

9. After hearing the learned counsel for the
parties and going through the record of the
case and the judgments relied by the
learned counsel for the parties, the position
which emerges out in the present case is
that earlier the mother of the petitioner had
applied after 1 year 10 months and 3 days
of the demise of her husband i.e. father of
the petitioner. Her claim was rejected vide
order dated 12.05.2009. The said rejection
order was never challenged by the mother
of the petitioner/ wife of the deceased.

10. The learned counsel for the
petitioner has very fairly admitted this fact
that the petitioner had attained the age of
majority on 02.07.2014 i.e. after about 11
years of the demise of his father and moved
the application after more than 2 years 2
months from the date of attaining majority
as he was pursuing the intermediate course
so he could apply against the post of
Constable.

11. In totality, the representation made
by the petitioner after the expiry of more
than 11 years and 10 months from the date
2 All. Akash Yadav Vs. State of U.P. & Ors.
1561
of demise of his father and Rule 5 of the
Rules of 1974 empowers the State
Government to relax the period of 5 years
from the date of demise of the deceased
employee.

12. The judgment in the case of
Malaya Nanda Sethy (supra) relied by the
learned counsel for the petitioner is not
applicable on the facts of the present case
as the said judgment is on the point that the
rules which were existing at the time of the
demise of the deceased employee would be
applicable or by subsequent amended Rules
and it has been held by the Hon'ble
Supreme Court that the candidature would
be considered as per the rule which were in
existence at the time of the demise of the
deceased employee not the rules amended
during the pendency of the application
moved by any family member of the
deceased employee. It is further held that
the
delay
which
was
taken
into
consideration by the Hon'ble Apex Court in
taking decision on the application of the
petitioner is to be read with the issue i.e.
applicability of the rules.

13. The judgment relied by the
learned counsel for the petitioner dated
02.12.2021 passed in Anit Kumar Yadav
(supra) is also not applicable in the present
case. As in the case of Anit Kumar Yadav
(supra), after the demise of the father of
Anit Kumar on 03.04.2008, he had left
behind his widow, 2 minor sons and minor
daughters, due to which the mother of the
petitioner went into depression and was
unable
to
apply
for
compassionate
appointment.

14. The petitioner i.e. Mr. Anit Kumar
after attaining the age of majority on
10.07.2016 had immediately moved an
application on 22.07.2016 i.e. within 12
days after attaining majority whereas the
petitioner of the present writ petition had
waited for more than 2 years just to get the
appointment on the post of his choice.

15. The judgment relied by the
learned counsel for the State which has
been mentioned in the impugned order in
the case of Umesh Kumar Nagpal Vs. State
of Haryana and Others with Anil Malik Vs.
State of Haryana and Others, reported in
(1994) 4 SCC 138, wherein the Hon'ble
Supreme
Court
has
held
that
the
employment cannot be granted after lapse
of reasonable period which must be
specified in the rules and in the Rules of
1974 that period has been provided as 5
years.

16. The another judgment relied by the
learned counsel for the State which has
been mentioned in the impugned order in
the case of Sanjay Kumar Vs. State of
Bihar and Others, reported in 2000 SCC
(L&S) 895, wherein it has been held that
the compassionate appointment is intended
to enable the family of the deceased
employee to tied over the sudden crisis.
The petitioner was minor and was not
eligible for appointment and there cannot
be any reservation of vacancy till such as
petitioner becomes a major after number of
years, unless there are some specific
provisions.

17. It has further been held by the
Hon'ble Supreme Court that employment is
not a vested right which can be exercised at
any time in future as the object is to enable
the family to get over the financial crisis
which it faces at the time of death of the
sole bread earner, the compassionate
appointment cannot be demanded and
offered whatever be the lapse of time and
after the crisis is over. In the present case,
1562 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner moved an application after
more than 11 years and 10 months and
more than 2 years after attaining the age of
majority, meaning-hereby, he had unduly
waited for a very long time. On attaining
the age of majority the petitioner was
eligible to be appointed on Class-IV post
but he chose not to apply at the appropriate
time and took more than 2 years thereafter
to better qualify himself educationally to
procure a job of his choice, which is not
aim and purpose of Rules of 1974.

18. In view of the discussion made
here-in-above, the present writ petition is
devoid of merit and hence, no interference
is required. Therefore, the writ petition is
dismissed.
----------
(2024) 2 ILRA 1562
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 6568 of 2018

Jitendra Kumar Chaudhary ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Budhi Ram Gupta, Sri Madan Mohan

Counsel for the Respondent:
C.S.C., Sri Yogendra Singh Bohra

Service Law - Intermediate Education Act,
1921
-
U.P.
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
Other
Employees) Act, 1971 - Code of Criminal
Procedure, 1973 - Sections 125 & 128 -
Protection of Women from Domestic Violence
Act, 2005 - Section 20 - Unauthorized Notice by
District Inspector of Schools - Petitioner
challenged notice dated 29.08.2017 issued by
District Inspector of Schools (DIOS) directing
compliance with Family Court's maintenance
order dated 16.09.2016, threatening salary
deduction - Held, DIOS lacked authority under
Intermediate Education Act, 1921 or Payment of
Salaries Act, 1971 to enforce Family Court's
order or entertain Pvt. complaints for execution
- Execution of maintenance orders under
Section 125 Cr.P.C. governed by Section 128
Cr.P.C., and under Section 20 of Domestic
Violence Act, enforceable by Magistrate, not
DIOS - Regulations 46-52 of Intermediate
Education Act and Section 3 of Payment of
Salaries
Act
prohibit
unauthorized
salary
deductions except as per law or court orders -
Notice per se illegal, quashed - DIOS's
subsequent order dated 08.03.2018 stopping
deduction upheld - Pvt. respondents to pursue
execution before appropriate forum - Petitioner
may seek adjustment of any recovered amount
in maintenance proceedings. (Para 6-11)

Writ petition allowed.

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Budh Ram Gupta,
learned counsel for the petitioner, learned
Standing Counsel for the State respondents
and Sri Y.S. Bohra, learned counsel for
respondent nos. 5,6 and 7.

2. The petitioner before this Court is
aggrieved of the notice issued by the
District Inspector of Schools on 29th
August, 2017 whereby he was required to
comply the judgment and order of the
Principal
Judge,
Family
court
dated
16.09.2016 in maintenance case no. 495 of
2008 failing which recovery shall be
proceeded with from his salary.

3. The argument advanced by learned
counsel for the petitioner is that District
Inspector of Schools does not enjoy any
authority to act as an executing authority of
an order of court of law. He submits that as