# Akhilesh Pratap v. Registrar General, High Court of Judicature at Allahabad & Ors

- **Citation:** (2022) 1 ILRA 692
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-06
- **Case number:** Writ A No. 15678 of 2021
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-pratap-v-registrar-general-high-court-of-judicature-at-allahabad-ors-47498
- **Pages:** 8

## Headnote

Law
-
Compassionate
appointment - Uttar Pradesh Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974: Rule 5(1) -
The first requirement u/Rule 5 of Rules, 1974 is
that the spouse of the deceased should not be
already employed by the Central or State
Governments or by a Corporation owned or
controlled by them. From perusal of the record,
it is clear that the mother of the petitioner is
already in employment as Government Servant.
(Para 11, 12, 25)

B. Compassionate appointment is an
exception to the general provision and,
being an exception, it should not interfere
unduly with the rights of other persons.
(Para 15)

C. Scope of Article 14 - Citizens have
assumed wrong notions regarding the scope
of Article 14 of the Constitution which
guarantees equality before law to all citizens.
Benefits extended to some persons in an
irregular or illegal manner cannot be
claimed by a citizen on the plea of
equality as enshrined in Article 14 of the
Constitution by way of writ petition filed in
the High Court.

Writ petition dismissed. (E-4)

Precedent followed:

## Text

692 INDIAN LAW REPORTS ALLAHABAD SERIES
153 of the Rules and the Maternity Act,
which does not apply to the establishment
of the Basic Education Board or its
maintained
schools.
The
petitioner,
therefore, cannot claim any right founded
on the provisions of the Maternity Act in
derogation of Rule 153 of the Rules. The
submissions of learned Counsel for the
petitioner that assert rights based on
Section 27 of the Maternity Act must,
therefore, be rejected.

26. In view of what has been said above,
the answer to the question involved is that the
restriction on the Right to Maternity Leave of
a female government servant, with regard to
the birth of her child, would be reckoned with
reference to the number of children living at
the time she applies for maternity leave,
irrespective of the fact whether the two
children living were born before or after she
entered government service.

27. In the result, this petition fails and
stands dismissed.

28. Costs easy.
----------
(2022)01ILR A692
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ A No. 15678 of 2021

Akhilesh Pratap ...Petitioner
Versus
Registrar
General,
High
Court
of
Judicature at Allahabad & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Amardeo Singh
Counsel for the Respondents:
Sri Ashish Mishra, Sri Chandan Sharma

A.
Service
Law
-
Compassionate
appointment - Uttar Pradesh Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974: Rule 5(1) -
The first requirement u/Rule 5 of Rules, 1974 is
that the spouse of the deceased should not be
already employed by the Central or State
Governments or by a Corporation owned or
controlled by them. From perusal of the record,
it is clear that the mother of the petitioner is
already in employment as Government Servant.
(Para 11, 12, 25)

B. Compassionate appointment is an
exception to the general provision and,
being an exception, it should not interfere
unduly with the rights of other persons.
(Para 15)

C. Scope of Article 14 - Citizens have
assumed wrong notions regarding the scope
of Article 14 of the Constitution which
guarantees equality before law to all citizens.
Benefits extended to some persons in an
irregular or illegal manner cannot be
claimed by a citizen on the plea of
equality as enshrined in Article 14 of the
Constitution by way of writ petition filed in
the High Court.

Writ petition dismissed. (E-4)

Precedent followed:

1. Sushma Gosain & ors. Vs U.O.I. & ors.,
(1989) 4 SCC 468 (Para 13)

2. Umesh Kumar Nagpal Vs St. of Har. & ors.,
(1994) 4 SCC 138 (Para 14)

3. Director of Education (Secondary) & anr. Vs
Pushpendra Kumar & ors., (1998) 5 SCC 192
(Para 15)

4. General Manager (D&PB) & ors. Vs Kunti
Tiwary & anr., (2004) 7 SCC 271 (Para 16)

5. Punjab National Bank & ors. Vs Ashwini
Kumar Taneja, 2004 AIR SCW 4602 (Para 17)
1 All. Akhilesh Pratap Vs. Registrar General, High Court of Judicature at Allahabad & Ors.
693
6. National Hydroelectric Power Corporation &
anr. Vs Nanak Chand & anr., AIR 2005 SC 106
(Para 18)

7. Commissioner of Public Instructions & ors. Vs
K.R. Vishwanath, (2005) 7 SCC, 206 (Para 19)

8. State of Bihar Vs Kameshwar Prasad Singh,
AIR 2000 SC 2306 (Para 20)

9. Gursharan Singh & ors. Vs NDMC & ors.,
1996 (2) SCC page 459 (Para 21)

10. Secretary Jaipur Development Authority,
Jaipur Vs Daulat Mal Jain & ors., 1997 (1) SCC
35 (Para 22)

11. St. of Har. & ors. Vs Ram Kumar Mann,
1997 (3) SCC page 321 (Para 23)

Present petition challenges order dated
21.04.2018,
passed
by
Registrar
(J)
(S&A/Establishment)
High
Court,
Allahabad and order dated 21.08.2019
passed by Assistant Registrar, Accounts-D,
High Court, Allahabad.

(Delivered by Hon'ble Prakash Padia, J.)

1. Today when the matter is taken up,
learned counsel for the respondents placed
instruction in the matter, the same is taken
on record.

2. Heard learned counsel for the
petitioner and Sri Chandan Sharma, learned
counsel for the respondents.

3. The petitioner has preferred the
present writ petition with the prayer to
issue a writ in the nature of certiorari to
quash the order dated 21.04.2018 passed by
the respondent No.2 namely Registrar (J)
(S&A/
Establishment)
High
Court,
Allahabad and order dated 21.08.2019
passed by the respondent No.3 namely
Assistant Registrar, Accounts-D, High
Court Allahabad. A further prayer has
been made to issue a writ of mandamus to
consider the claim of the petitioner for
compassionate appointment.

4. Facts in brief as contained in the
writ petition that the father of the petitioner
was initially appointed on 15.03.1990 and
was posted as Review Officer in the High
Court at Allahabad. While working on the
aforesaid post he died on 21.08.2016.
Father of the petitioner left behind his
dependants as old parents, widow, two
unmarried
sons
and
one
unmarried
daughter. The petitioner claims to be
qualified
and
is
holding
educational
qualification of B.A. & Diploma Holder in
Computer from NIELIT. After the death,
the mother of the petitioner submitted an
application on 22.09.2017 before the
respondent No.1 by which a request has
been made to provide compassionate
appointment in favour of the dependant.
The respondent No.2 by its order dated
21.04.2018 has rejected the claim set up by
the petitioner on the ground that the spouse
of the deceased employee is already in
employment. The order passed by the
respondent No.2 dated 21.04.2018 is
reproduced below:-

"With reference to his application
dated 22.09.2017 and other supplementary
applications regarding appointment in this
Hon'ble High Court, on the post of Routine
Grade Clerk on compassionate ground
under U.P. Recruitment of Dependants of
Government Servants Dying in Harness
Rules 1974 (as amended upto date), Sri
Akhilesh Pratap, Son of Late Satyendra
Pratap, Ex-Review Officer, High Court,
Allahabad, is hereby informed that Hon'ble
the Court has declined it since the spouse
of the deceased employee is already
694 INDIAN LAW REPORTS ALLAHABAD SERIES
employed in government service as such
the applicant's claim is not covered under
''The
Uttar
Pradesh
Recruitment
of
Dependants of Government Servants Dying
In Harness Rules.'

5. After the aforesaid order was
passed another representation was made by
the mother of the petitioner before the
respondent No.1 on 14.02.2019, the same
was also rejected by the respondent No.3
vide order dated 21.08.2019. The aforesaid
order is reproduced below:-

"With
reference
to
her
representation dated 14.02.2019 seeking
appointment of her son Sri Akhilesh
Pratap, Son of Late Satyendra Pratap, ExReview Officer, High Court, Allahabad,. In
this Hon'ble High Court, on compassionate
ground
under
U.P.
Recruitment
of
Dependants of Government Servants Dying
In Harness Rules, 1974 (as amended upto
date), Smt. Lakshmi Devi. Wife of Late
Satyendra Pratap, Ex Review Officer (Emp.
No.3342), High Court, Allahabad, is
hereby informed that Learned Registrar
General vide hs order dated 19.08.2019
has rejected it in light of resolution dated
10.04.2018
of
Hon'ble
Recruitment
Committee."

6.
 Subsequently,
the
petitioner
himself made a representation dated
06.02.2020
through
proper
channel
addressed to Hon'ble the Chief Justice of
this court for providing compassionate
appointment.

7. It is argued that on the same set of
facts,
certain
persons
were
given
appointment on compassionate ground. It is
argued that the order passed by the
respondents which are under-challenge in
the present writ petition are absolutely
illegal and are liable to be set aside.

8. On the other hand, it is argued by
learned
counsel
appearing
for
the
respondents that the claim set up by the
petitioner was rightly rejected by the
respondent No.2 while passing the order
dated
24.02.2018.
Counsel
for
the
respondent relied upon Rule 5(1) of Uttar
Pradesh Recruitment of Dependants of
Government Servants Dying in Harness
Rules, 1974. The aforesaid rule is quoted
below:-

Rule 5(1) - Recruitment of a
member of the family of the deceased. -

(1) 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 or a Corporation
owned or controlled by the Central
Government or a State Government, one
member of his family who is not already
employed under the Central Government or
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 a post except the
post which is within the purview of the
Uttar Pradesh Public Service Commission,
in relaxation of the normal recruitment
rules, if such person-

(i)
fulfils
the
educational
qualifications prescribed for the post,

(ii) is otherwise qualified for
Government service, and
1 All. Akhilesh Pratap Vs. Registrar General, High Court of Judicature at Allahabad & Ors.
695

(iii) makes the application for
employment within five years from the date
of the death of the Government servant:

Provided that where the State
Government is satisfied that the time limit
fixed for making the application for
employment causes undue hardship in any
particular case, it may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a just
and equitable manner."

9. As per aforementioned Rules, the
petitioner does not fulfil the condition laid
down in Sub Rule (1) of Rules 5 of the
Rules 1974 as the spouse of the deceased
employee was already under employment
as Government Servant. It is stated in the
instructions that the matter was placed
before the Committee in its meeting dated
10.04.2018
wherein
the
request
was
"declined" by the Committee after due
deliberation.
Consequently
after
the
aforesaid resolution, the order in question
has been issued by the respondent No.2.

10. Heard learned counsel for the
parties and perused the record.

11. From perusal of the record, it is
clear that the mother of the petitioner is
already in employment as Government
Servant. It is clearly provided under Rule
5(1) of the Rules 1974 that member of the
family of the deceased could only be given
appointment in case a government servant
dies during service and the spouse of the
deceased Government servant is not
already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government.

12. The first requirement under
Rule 5 of Rules, 1974 is that the spouse of
the deceased should not be already
employed
by
the
Central
or
State
Governments or by a Corporation owned or
controlled by them.

13. The Hon'ble the Apex Court In
the case of Sushma Gosain & Ors. Vs.
Union of India & Ors., reported in (1989)
4 SCC, 468, 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
envisages specifically otherwise, to state
that as and when such minor becomes a
major he can be appointed without any
time consciousness or limit. The above view
was reiterated in Phoolwati (Smt.) v. Union
of India and Ors., reported in (1991) Supp
(2) SCC, 689 and Union of India and Ors.
v. Bhagwan Singh, repoted in (1995) 6
SCC, 476. In Director of Education
(Secondary) and Anr. v. Pushpendra
Kumar and Ors, (1998) 5 SCC 192, it was
observed that in matter of compassionate
appointment there cannot be insistence for
a
particular
post.
Out
of
purely
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,
provisions are made for giving appointment
to one of the dependants of the deceased
who may be eligible for appointment. Care
has, however, to be taken that provision for
grant of compassionate employment which
696 INDIAN LAW REPORTS ALLAHABAD SERIES
is in the nature of an exception to the
general
provisions
does
not
unduly
interfere with the right of those other
persons who are eligible for appointment to
seek appointment against the post which
would have been available, but for the
provision enabling appointment being
made on compassionate grounds of the
dependant of the deceased-employee. As it
is in the nature of exception to the general
provisions it cannot substitute the provision
to which it is an exception and thereby
nullify the main provision by taking away
completely the right conferred by the main
provision."

14. In Umesh Kumar Nagpal Vs.
State of Haryana & Ors., reported in
(1994) 4 SCC, 138, the Supreme Court
explained the basic purpose of providing
compassionate
appointment
to
the
dependent of a deceased employee who has
died in harness:

"The object is not to give a
member of such family a post much less a
post for post held by the deceased. What is
further, mere death of an employee in
harness does not entitle his family to such
source of livelihood. The Government or
the public authority concerned has to
examine the financial condition of the
family of the deceased, and it is only if it is
satisfied, that but for the provision of
employment, the family will not be able to
meet the crisis that a job is to be offered to
the eligible member of the family. The posts
in Classes III and IV are the lowest posts in
non-manual and manual categories and
hence they alone can be offered on
compassionate grounds, the object being to
relieve
the
family,
of
the
financial
destitution and to help it get over the
emergency. ... For these very reasons, the
compassionate
employment
cannot
be
granted after a lapse of reasonable period
which must be specified in the rules. The
consideration for such employment is not a
vested right which can be exercised at any
time in future. The object being to enable
the family to get over the financial crisis
which it faces at the time of the death of the
sole
breadwinner,
the
compassionate
employment cannot be claimed and offered
whatever the lapse of time and after the
crisis is over."

15. In Director of Education
(Secondary) & Anr. Vs. Pushpendra
Kumar & Ors., reported in (1998) 5
SCC, 192, the Supreme Court held that
compassionate appointment is an exception
to the general provision and, being an
exception, it should not interfere unduly
with the rights of other persons. The
Supreme Court held thus:

"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
1 All. Akhilesh Pratap Vs. Registrar General, High Court of Judicature at Allahabad & Ors.
697
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. The Supreme Court in the case of
General Manager (D&PB) & Ors. Vs. Kunti
Tiwary & Anr., reported in (2004) 7 SCC, 271
held that under the Scheme which had been
adopted by the Indian Banks Association, the
terminal benefits received by the family of the
deceased employee had to be considered
together with the income of the family,
employment of other members, the size of the
family and liabilities, if any. The Supreme Court
in that case held that the family of the deceased
employee had not been left in penury or without
any means of livelihood and its income was not
such as to lead to the conclusion that the family
was living hand to mouth.

17. The same view was followed in
Punjab National Bank & Ors. Vs. Ashwini
Kumar Taneja, reported in 2004 AIR
SCW, 4602.

18. In National Hydroelectric Power
Corporation & Anr. Vs. Nanak Chand &
Anr., reported in AIR 2005 SC, 106, the
principle was formulated as follows:

"It is to be seen that the
appointment on compassionate ground is
not a source of recruitment but merely
an exception to the requirement regarding
appointments
being
made
on
open
invitation of application on merits. Basic
intention is that on the death of the
employee concerned his family is not
deprived of the means of livelihood. The
object is to enable the family to get over
sudden financial crises."

19. 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 person concerned
for appointment on compassionate ground is
based on the premises that he was dependent
on the deceased employee. Strictly this claim
cannot be upheld on the touchstone of Article
14 or 16 of the Constitution of India.
However, such 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."

20. Insofar as the arguments made by
learned counsel for the petitioner is that the
petitioner is entitled for the similar benefit
as has been provided to the several other
persons it is clear that if any wrong order
698 INDIAN LAW REPORTS ALLAHABAD SERIES
was passed earlier, petitioners can't seek the
benefit of the same. There is no concept of
negative equality under Article 14 of the
Constitution of India. The Hon'ble Supreme
Court in the case of State of Bihar v
Kameshwar Prasad Singh AIR 2000 SC
2306 held that:-

"The concept of equality as
envisaged
under
Article
14
of
the
Constitution is a positive concept which
cannot be enforced in a negative manner.
When any authority is shown to have
committed any illegality or irregularity in
favour of any individual or group of
individuals other cannot claim the same
illegality or irregularity on ground of
denial thereof to them. Similarly wrong
judgment
passed
in
favour
of
one
individual does not entitle others to claim
similar benefits."

21. In this regard the Hon'ble
Supreme Court in the case of Gursharan
Singh & Ors. v. NDMC & Ors. 1996 (2)
SCC page 459 held that citizens have
assumed wrong notions regarding the scope
of Article 14 of the Constitution which
guarantees equality before law to all
citizens. Benefits extended to some persons
in an irregular or illegal manner cannot be
claimed by a citizen on the plea of equality
as
enshrined
in
Article
14 of
the
Constitution by way of writ petition filed in
the High Court. The Court observed:

"Neither
Article
14
of
the
Constitution conceives within the equality
clause this concept nor Article 226
empowers the High Court to enforce such
claim of equality before law. If such claims
are enforced, it shall amount to directing to
continue
and
perpetuate
an
illegal
procedure or an illegal order for extending
similar benefits to others. Before a claim
based on equality clause is upheld, it must
be established by the petitioner that his
claim being just and legal, has been denied
to him, while it has been extended to others
and in this process there has been a
discrimination."

22. Again in the case of Secretary,
Jaipur Development Authority, Jaipur v.
Daulat Mal Jain & Ors. 1997 (1) SCC
page 35 the Hon'ble Supreme Court
considered the scope of Article 14 of the
Constitution and reiterated its earlier
position regarding the concept of equality
holding:

"Suffice it to hold that the illegal
allotment founded upon ultra vires and
illegal policy of allotment made to some
other persons wrongly, would not form a
legal premise to ensure it to the respondent
or to repeat or perpetuate such illegal
order, nor could it be legalised. In other
words, judicial process cannot be abused to
perpetuate the illegalities. Thus considered,
we hold that the High Court was clearly in
error in directing the appellants to allot the
land to the respondents."

23. The similar view was again taken
by the Hon'ble Supreme Court in the case
of State of Haryana & Ors v. Ram Kumar
Mann 1997 (3) SCC page 321 wherein it
was observed that:

"The doctrine of discrimination is
founded upon existence of an enforceable
right. He was discriminated and denied
equality as some similarly situated persons
had been given the same relief. Article 14
would
apply
only
when
invidious
discrimination is meted out to equals and
similarly
circumstanced
without
any
rational basis or relationship in that behalf.
The respondent has no right, whatsoever
1 All. Kamaluddin Vs. State of U.P. & Ors.
699
and cannot be given the relief wrongly
given to them, i.e., benefit of withdrawal of
resignation. The High Court was wholly
wrong in reaching the conclusion that there
was invidious discrimination. If we cannot
allow a wrong to perpetrate, an employee,
after committing mis-appropriation of
money, is dismissed from service and
subsequently that order is withdrawn and
he is reinstated into the service. Can a
similarly
circumstanced
person
claim
equality
under
Section
14
for
reinstatement? The answer is obviously
"No". In a converse case, in the first
instance, one may be wrong but the wrong
order cannot be the foundation for
claiming equality for enforcement of the
same order. As stated earlier, his right
must be founded upon enforceable right to
entitle him to the equality treatment for
enforcement thereof. A wrong decision by
the Government does not give a right to
enforce the wrong order and claim parity or
equality. Two wrongs can never make a
right."

24. After the death of Sri Satyendra
Pratap,
the
petitioner
submitted
an
application for considering his case for
compassionate appointment, rejected by
order
dated
21.04.2018
passed
by
respondent No.2 & 21.08.2019 passed by
respondent No. 3 on the ground that his
mother is already working in a State
Government establishment.

25. In the facts and circumstances of
the case and taking into consideration of all
the aspects of the matter, it is not disputed
that the mother of the petitioner is already
in
employment
and
is
working
as
Government Servant.

26. In this view of the matter, this
Court is of the opinion that no relief could
be granted. The writ petition lacks merits
and the same is liable to be dismissed and
is hereby dismissed.

27. No Order as to costs.
----------
(2022)01ILR A699
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 17042 of 2021

Kamaluddin ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Syed Mohammad Abbas Abdy, Sri Arshi
Abdy, Sri Neeraj Kant

Counsel for the Respondents:
C.S.C., Sri Arun Kumar, Sri Vijay Bahadur
Maurya

A. Service Law - Pension - The record
reflects that petitioner has been engaged as
daily wager Clerk on 14.06.1989. It also
transpires from the record that since the date of
engagement of petitioner as daily wager, he
was continuously working till his services was
regularised
by
order
dated
22.09.2008,
therefore, in view of the judgment of Apex
Court in the case of Prem Singh (infra) as well
as judgment of this Court in the case of Kaushal
Kishore Chaubey (infra), the services rendered
as daily wager is liable to be counted for the
purpose of grant of pensionary benefit after
retirement, and if that be so, obviously the date
of appointment of petitioner would be treated to
be 14.06.1989. Hence, the services of the