# Akhilesh Kumar Verma v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 868
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007
- **Case number:** Civil Misc. Writ Petition No.48622 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-verma-v-state-of-u-p-and-others-41107
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.
226Compassionate appointment-petitioner's
father a civil constable died in harnessafter getting majority-applied and was
given appointment-on class 4th postpetitioner refused to join and put further
claim on the post of Constable (M)
ignoring the physical standard of fitnessheld-not entitled-when the petitioner
has means to survive and continue the
education for years together-financial
cries
over-can
not
be
treated
as
reservation
or
another
mode
of
recruitment.

Held: Para 16

It is thus apparent from the record that
the petitioner did not feel necessary to join
the employment and get wages so as to
earn his livelihood. He was not at all
interested to join the offered post on his
own volition and was ready to wait till he
is given a post of his choice. In view of the
fact that the compassionate appointment
is not the scheme for providing status to
the person, in my view the petitioner has
erred in refusing to accept the class-IV
post and insisting for his recruitment to
the
post
of
Constable
(M).
The
respondents have rightly considered the
matter and in accordance with the rules.
Admittedly, petitioner did not fulfil the
qualification
for
the
recruitment
of
constable and, therefore, he was rightly
offered for the post of class IV but he
failed to join the same.
Case law discussed:
1994 (68) FLR-1191 (SC), 1998 (5) SCC-192,
2000 (10) SC J.T.-156, 2002 LLJ-173, 2005
(107) FLR-153

## Text

868 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
18. This again leaves the Court with
a question about the reasonable cost of
constructions, which are required to be
paid to the defendant-respondent to claim
possession
over
the
land
and
the
constructions. In the judgment dated 11th
August 1952 the Addl. Civil Judge,
Azamgarh in Suit No.1 of 1949 found an
admission on the part of Shri Durga
Prasad-the defendant that he had raised
constructions of house and Bara at a cost
of Rs.6505 and 7 anas 6 paisa and this
was the amount offered by learned
counsel for the appellant to the defendantrespondent in First Appeal No.394 of
1952. The High Court at that stage did not
comment upon the adequacy of the officer
as the respondents were not represented
and there was nothing to show that the
defendants were entitle get any interest on
the amount.

19. In this suit the plaintiff claimed
the defendant to be licensee and has
prayed for decree of eviction on payment
of Rs.2064·and 13 ana 9 pai or any
amount, which the Court may deem fit
after accounting.

20. By registered notice dated
1.3.1971 the license was revoked and that
under
the
contract
the
defendantrespondents are entitled to cost of
construction
for
eviction
from
the
premises.

21. The-litigation initiated in the
year 1927 has not ended as yet. Taking
into account the admissions made by the
defendant first set in Original Suit No.1 of
1949 decided on 11th August, 1952, the
Court find that a sum of Rs.6505 and 7
ana 6 paisa with simple interest at the rate
of 12% per annum would be the fair and
reasonable
cost
with
interest
compensating the capital expenses. The
Court is not taking into consideration any
improvement as no such plea was taken
by the defendant nor any evidence was
led by the defendant to prove the same.
The constructions must be old but then no
such argument was advanced by learned
counsel for the appellant to reduce the
cost of constructions claimed by the
defendant-respondent.

22.

The
second
appeal
is
consequently allowed. The judgment and
decree of the District Judge, Azamgarh
dated 17.10.1979 is set aside and the
judgment and decree dated 31.7.1978
passed in Suit No.15 of 1974 is restored
with modification that the defendant first
set shall vacate the property in dispute
after the plaintiff-appellant deposits in
trial Court a sum of Rs.6506 with 12%
simple interest per annum, with effect
from 11th August 1952 to the benefit of
the defendant-respondent and on payment
of the Court fees on Rs.6506/- with 12%
simple interest per annum in Court
calculating the same upto the date of
filing of the suit.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2007

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.48622 of 2004

Akhilesh Kumar Verma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.S. Pandey
3 All] Akhilesh Kumar Verma V.State of U.P. and others
869
Counsel for the Respondents:
Sri Prakash Singh
S.C.

Constitution
of
India,
Art.
226Compassionate appointment-petitioner's
father a civil constable died in harnessafter getting majority-applied and was
given appointment-on class 4th postpetitioner refused to join and put further
claim on the post of Constable (M)
ignoring the physical standard of fitnessheld-not entitled-when the petitioner
has means to survive and continue the
education for years together-financial
cries
over-can
not
be
treated
as
reservation
or
another
mode
of
recruitment.

Held: Para 16

It is thus apparent from the record that
the petitioner did not feel necessary to join
the employment and get wages so as to
earn his livelihood. He was not at all
interested to join the offered post on his
own volition and was ready to wait till he
is given a post of his choice. In view of the
fact that the compassionate appointment
is not the scheme for providing status to
the person, in my view the petitioner has
erred in refusing to accept the class-IV
post and insisting for his recruitment to
the
post
of
Constable
(M).
The
respondents have rightly considered the
matter and in accordance with the rules.
Admittedly, petitioner did not fulfil the
qualification
for
the
recruitment
of
constable and, therefore, he was rightly
offered for the post of class IV but he
failed to join the same.
Case law discussed:
1994 (68) FLR-1191 (SC), 1998 (5) SCC-192,
2000 (10) SC J.T.-156, 2002 LLJ-173, 2005
(107) FLR-153

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri B.S. Pandey, learned
counsel for the petitioner and learned
Standing Counsel.
2. Petitioner is aggrieved by order
dated 12.10.2004 (Annexure 14 to the
writ
petition)
whereby
the
Deputy
Inspector
General
of
Police
(Establishment) U.P. Police Head Quarter
Allahabad has rejected the representation
of the petitioner for recruitment to the
post of constable (M) as he did not fulfill
the requisite physical standards prescribed
under the Rules at the relevant time and
also that he was already given benefit of
appointment on compassionate basis on a
Class IV post but he failed to join the said
post.

3. The petitioner's father Panch Ram
Verma was enrolled in Civil Police as a
Constable and he died in harness on
15.6.1997 leaving his widow Smt. Shobha
Devi, and minor children, i.e. the
petitioner
Akhilesh
Kumar
Verma,
Krishna Kumar Verma, Km Rewati
Raman Verma and Km. Anita Verma.
Petitioner's date of birth is 1.7.1982 and
he was minor at the time of death of his
father. After attaining the age of majority,
the petitioner made an application for the
post of constable (M), which was
recommended by the Superintendent of
Police, Basti. After considering the case
of the petitioner Deputy Inspector General
of Police (Establishment) U.P. Police
Head Quarter Allahabad issued an order
on 29.8.2001 that the petitioner did not
fulfill the requisite physical standard
required for the appointment to the post of
Constable (M) and, therefore, he should
be appointed as Class-IV employee by
Superintendent of Police, Basti. The
petitioner filed a representation before
respondent no.3 claiming that he should
be considered for the post of Constable
(M), in view of the fact that State
Government by order dated 6th December,
2001 has clarified that for recruitment to
870 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the post of police Constable (M) in the
police
establishment,
the
physical
standards shall not be applied. His claim
was recommended by Superintendent of
Police, Bast vide letter later 4.7.2002 but
since no action was taken by D.I.G., U.P.
Police Headquarter, Allahabad, he filed
writ petition no.3384 of 2003, which was
disposed of by this Court, on 6.11.2003,
with the following direction :-

"In view of the fact that after the
Government order dated 6th December
2001, the petitioner has submitted his
representation
to
Deputy
Inspector
General (Establishment) U.P. Police Head
Quarter Allahabad and the Superintendent
of Police, Basti has also recommended the
case of the petitioner by letter dated 4th
July 2002 for considering to Deputy
Inspector General of Police U.P. Police
Head Quarter, Allahabad. It is appropriate
that
claim
of
the
petitioner
as
recommended
by
Superintendent
of
Police, Basti vide letter dated 4th July
2002, be considered by respondent no.2
expeditiously preferably, within a period
of three months from the date of
production of a certified copy of this
order.
The writ petition is disposed of with
the aforesaid direction."

4. Pursuant to the aforesaid
direction, respondent no.2, vide the
impugned order has held that the State
Government's letter dated 6th December,
2001 is prospective and would not be
applicable to the petitioner, whose case
was considered much earlier to the
issuance of letter and he was offered
appointment in accordance with eligibility
and qualification as per Rules applicable
on the said date and respondent no.2
consequently
rejected
claim
of
the
petitioner for the post of Constable (M).

5. Learned counsel for the petitioner
contended that eligibility condition of
physical standard was relaxed by G.O.
dated 6th December, 2001 and thus
respondent no.2 was directed by this
Court to reconsider his claim for the post
of Constable (M) under the Rules, yet he
has failed to consider the matter by
applying G.O. dated 6.12.2001.

6. Having heard learned counsel for
the petitioner and learned Standing
Counsel and perusing the record, in my
view, the writ petition deserves to be
dismissed. I do not find any error in the
order passed by respondent no.2. The
recruitment/appointment on the basis of
compassionate ground is exception and no
person has any right to claim appointment
on the post of a particular status. The
intention
is
to
provide
immediate
financial help to the bereaved family of
the deceased employee who has demised
in harness leaving the family in penury.
The compassionate appointment is not a
regular source of recruitment and the
employee cannot claim that he should be
conferred or is entitled as a matter of
right, a particular post of a particular
status.

7. The object and purpose of
compassionate appointment is to provide
assistance to the bereaved family of the
deceased employee, who has suffered a
shock and financial scarcity due to sudden
demise of the sole bread-earner. Neither
the
provisions
pertaining
to
compassionate appointment confers any
status nor provides reservation of a
vacancy as it is not a source of
recruitment where under a person as and
3 All] Akhilesh Kumar Verma V.State of U.P. and others
871
when become eligible may apply and
claim appointment.

8. In the case of Umesh Kumar
Nagpal Vs. State of Haryana and
others, 1994 (68) FLR 1191 (SC), it was
held that as a Rule, in public service,
appointment should be made strictly on
the basis of open invitation of applications
on
merit.
The
appointment
on
compassionate ground is not another
source of recruitment, but merely an
exception to the aforesaid recruitment
taking into consideration the fact of the
death of employee while in service
leaving his family without any means of
livelihood. In such cases the object is to
enable the family to get over sudden
financial crisis. But such appointments on
compassionate ground have to be made in
accordance with the Rules, Regulations or
Administrative instructions taking into
consideration the financial condition of
the family of the deceased.

9. Again in Director of Education
(Secondary)
and
another
Vs.
Pushpendra Kumar and others 1998 (5)
SCC 192, the Apex Court observed as
under:

"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-earned
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 the
ends meet, a provision is made for giving
gainful appointment to one of the
dependants 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. Care
has, therefore to be taken that a provision
for grant of compassionate employment,
which is in the nature of an exception to
general provision, does not unduly
interfere with the right of other persons
who are eligible for appointment to seek
employment against the post which would
have been available to them, but for the
provision enabling appointment being
made on compassionate grounds for the
dependant of a deceased employee."

10. In Sanjay Kumar Vs. State of
Bihar and others, Judgment Today
2000 (10) SC 156, the Apex Court
reiterated
that
the
compassionate
appointment is provided only to enable
the family of the deceased employee to
tide over sudden crises resulting due to
the death of sole bread-earner who had
left family in penury without any means
of livelihood but it cannot be treated to be
a reserved vacancy for the dependants of
the deceased Government servant who
died in harness.

11. In the case of Haryana State
Electricity Board Vs. Krishna Devi,
2002 LLJ 773, the Apex Court while
reiterating the objective of compassionate
appointment as laid down in the earlier
cases further observed that the application
made at a belated stage cannot be
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
entertained for the reason that by lapse of
time, the purpose of making such
appointment stands evaporated.
12. Recently in the case of
Commissioner public instructions and
others Vs. K.R. Vishwanath 2005 (107)
FLR 153, the Apex Court has observed as
under:

"The
purpose
of
providing
appointment on compassionate ground is
to mitigate the hardship due to death of
the bread-earner in the family. Such
appointments
should,
therefore,
be
provided immediately to redeem the
family in distress. The fact that the ward
was a minor at the time of death of his
father is no ground, unless the scheme
itself envisage specifically otherwise, to
state that as and when such minor
becomes a major he can be appointed
without any time consciousness or limit."

13. If the family has sufficient
means to survive for years together and
can take care of the minors who have
turned
into
major
after
undergoing
educational qualification etc. that itself
would be evident to show that now the
family is not in financial crises as it could
have at the time of sudden demise of the
deceased
necessitating
compassionate
appointment at a late stage i.e. after
several years.

14. This Court cannot be oblivious
of the fact that unemployment is a major
problem in our country. Lacs and millions
educated
unemployed
persons
are
wandering for employment and even for a
single petty Class IV vacancy, hundreds
and thousands apply which includes not
only those who possesses the minimum
qualification of secondary levels or less
but even graduate and post-graduate. At
times it has been seen that even persons
having doctorate have applied for the
lowest class of service i.e. Class IV. In
such a situation, public employment must
be available to eligible and suitable
persons to be filled in by competition and
all who are willing should be given an
opportunity of consideration. Asking for a
vacancy to be kept reserve so as to be
filled-in future on the basis of notional
extended distress to the family continuing
for years together would amount to denial
of such right of consideration to other
similarly placed unemployed and destitute
persons whose only fault is that their
ancestors could not get the opportunity of
employment and, therefore, they should
also
suffer
the
same
misfortune.
Compassionate appointment in fact has an
element of an immediate help to the
family of the deceased employee. The
heirs in distress lacking sufficient and
reasonable means to survive with some
honour must request for such help
immediately or within a reasonable time.
To some extent, no doubt, it is a condition
of service and the benefit available to
employee in general but extension of such
conditions of service to an unreasonable
extent would or may erode the difference
between valid and invalid and any such
stretch may render the provisions of the
compassionate appointment to be judged
on the anvil of Article 16 of the
Constitution of India which confers right
of
equal
opportunity
in
public
employment to all persons. The Court
cannot shut its eyes to the fact that still
majority of people are continuing to be
tiny, poor, starving, little Indians and still
are below poverty line. Their distress and
penury appears to be ever lasting, as if
they are bound to live in distress
permanently. Their misery and destitute is
not the result of sudden demise of the sole
3 All] Ashwani Kumar Tiwari and others V.State of U.P. and others
873
bread-earner but is caused by their fate
and for the reason of non availability of
employment. They are not in a position,
even though they are alive, to earn two
times simple bread what to talk of bread
and butter. The distress of such persons is
neither negligible nor can be ignored. In a
pragmatic society, efforts had to be made
to
read
and
apply
law
wherever
permissible
which
will
extend
an
opportunity of equal consideration for
public employment to public at large
irrespective of their lineage ancestral
hierarchy etc.

15. It is not disputed that as long
back as on 29th August 2001, the
department
issued
an
order
for
appointment of petitioner for class-IV
post but he did not join the same. This
fact has also been noticed by this Court in
its earlier judgment where this Court has
observed:-

"The counsel for the petitioner
specifically stated that petitioner has not
joined on Class IVth post nor is working."

16. It is thus apparent from the
record that the petitioner did not feel
necessary to join the employment and get
wages so as to earn his livelihood. He was
not at all interested to join the offered post
on his own volition and was ready to wait
till he is given a post of his choice. In
view of the fact that the compassionate
appointment is not the scheme for
providing status to the person, in my view
the petitioner has erred in refusing to
accept the class-IV post and insisting for
his recruitment to the post of Constable
(M).
The
respondents
have
rightly
considered the matter and in accordance
with the rules. Admittedly, petitioner did
not fulfil the qualification for the
recruitment of constable and, therefore, he
was rightly offered for the post of class IV
but he failed to join the same.

17. Therefore, in the aforementioned
circumstances, this writ petition lacks
merit and is dismissed. No order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2007

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE RAKESH TIWARI, J.

Special Appeal No.[910] of 2007
Along with:
Special Appeal No.[911] of 2007,
and
Special Appeal No.[927] of 2007
and
Special Appeal No.1368 of 2007
and
Special Appeal No.[951] of 2007

Ashwani Kumar Tiwari and others

 ...Appellants
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Udai Shankar Mishra,
Sri Irshad Ali,
Sri Manoj Gautam,
Sri A.K. Malviya,
Sri P.K. Ganguli

Counsel for the Respondents:
Sri Abhinav Upadhya
S.C.

Constitution of India, Art. 226-Admission
in
Special
B.T.C.
course-appellant
obtained
B.Ed.
Degree
from
the
university/College prior to equivalence
from N.C.T.E.-held not eligible as per