# Aman Pathak v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 5 ILRA 1120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-28
- **Case number:** Writ-A No. 15485 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aman-pathak-v-state-of-u-p-ors-opp-parties-51971
- **Pages:** 7

## Headnote

(A) Service Law - Claim for compassionate
appointment - The U.P. Cooperative Cane
Service Regulations, 1975 - The Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules,
1974
-
existence
of
small
agricultural holdings does not necessarily
mean that the family has a steady income -
Objectivity
in
administrative
decision
making - Administrative decisions should
be
made
objectively,
without
being
influenced
by
judicial
commands
or
motivated by malice - Administrators must
not panic or retaliate when faced with a
judicial command asking them to perform
their duties.(Para - 12,14)

(C) Service Law - Comparative income
assessment/Relevant
factors
for
compassionate appointment (i) Income of
the deceased at the time of death (ii)
Family's income after demise from various
sources
(iii)
Terminal
benefits
(iv)
Liabilities (v) Age, dependency, and marital
status of family members (vi) Income from
other sources - authorities should prioritize
the financial condition of the deceased's
family at the time of their death as the
primary consideration. (Para -9 ,10)

Petitioner's father was a Stock Clerk in the
Establishment - passed away - minor - applied for
compassionate appointment - after attaining
majority - State Authority rejected petitioner's
claim for compassionate appointment - District
Cane Officer also rejected petitioner's claim.
(Para - 1 to 5)

HELD: - State Authority and District Cane Officer
rejected petitioner's claim for compassionate
appointment due to incomplete and inaccurate
information.
Decision
was
based
on
the
petitioner's delay due to his minority status and
the financial crisis his family faced after his
father's death. Order quashed - Remitted to State
Authority to decide afresh.(Para - 8,13,15)
5 All. Aman Pathak Vs. State of U.P. & Ors.
1121
Writ Petition Allowed. (E-7)

List of Cases cited:

St. of W.B. Vs Debabrata Tiwari & ors., 2023 SCC
OnLine SC 219

## Text

1120 INDIAN LAW REPORTS ALLAHABAD SERIES
a similar set of rights were to arise for
consideration.

10. In the result, this petition
succeeds and is allowed. The impugned
order dated 02.12.2023, passed by the
District Minority Welfare Officer, Prayagraj,
is hereby quashed. A mandamus is issued to
the respondents to sanction and calculate
gratuity to the petitioner, of course, taking
into account the total number of completed
years of service rendered by him before
prematurely retiring. The reckoning of the
petitioner's entitlement to gratuity shall be
done within a period of fifteen days hence
and gratuity determined shall be paid to the
petitioner within next fifteen days thereafter.

12. There shall be no order as to
costs.

13. Let this order be communicated
to
the
Additional
Chief
Secretary
(Secondary Education), U.P., Lucknow
through the Civil Judge (Senior Division),
Lucknow, the Joint Director (Pension),
Prayagraj Division, Prayagraj and the
District Minority Welfare Officer, Prayagraj
through the Civil Judge (Senior Division),
Allahabad by the Registrar (Compliance)
within 48 hours.
----------
(2024) 5 ILRA 1120
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 15485 of 2023

Aman Pathak ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Rajesh Kumar Yadav

Counsel for the Opp. Parties:
C.S.C., Ravindra Singh

(A) Service Law - Claim for compassionate
appointment - The U.P. Cooperative Cane
Service Regulations, 1975 - The Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules,
1974
-
existence
of
small
agricultural holdings does not necessarily
mean that the family has a steady income -
Objectivity
in
administrative
decision
making - Administrative decisions should
be
made
objectively,
without
being
influenced
by
judicial
commands
or
motivated by malice - Administrators must
not panic or retaliate when faced with a
judicial command asking them to perform
their duties.(Para - 12,14)

(C) Service Law - Comparative income
assessment/Relevant
factors
for
compassionate appointment (i) Income of
the deceased at the time of death (ii)
Family's income after demise from various
sources
(iii)
Terminal
benefits
(iv)
Liabilities (v) Age, dependency, and marital
status of family members (vi) Income from
other sources - authorities should prioritize
the financial condition of the deceased's
family at the time of their death as the
primary consideration. (Para -9 ,10)

Petitioner's father was a Stock Clerk in the
Establishment - passed away - minor - applied for
compassionate appointment - after attaining
majority - State Authority rejected petitioner's
claim for compassionate appointment - District
Cane Officer also rejected petitioner's claim.
(Para - 1 to 5)

HELD: - State Authority and District Cane Officer
rejected petitioner's claim for compassionate
appointment due to incomplete and inaccurate
information.
Decision
was
based
on
the
petitioner's delay due to his minority status and
the financial crisis his family faced after his
father's death. Order quashed - Remitted to State
Authority to decide afresh.(Para - 8,13,15)
5 All. Aman Pathak Vs. State of U.P. & Ors.
1121
Writ Petition Allowed. (E-7)

List of Cases cited:

St. of W.B. Vs Debabrata Tiwari & ors., 2023 SCC
OnLine SC 219

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against the order dated 30.09.2023 passed
by the District Cane Officer, District
Sambhal
and
the
resolution
dated
25.09.2023 issued by the State Cane Service
Authority (for short, 'the State Authority'),
rejecting
the
petitioner's
claim
for
compassionate appointment.

2. The petitioner's father was a
Stock Clerk in the Establishment of the
District Cane Officer, Chandausi, District
Sambhal. He passed away in harness on
13.11.2011. The deceased was survived by
his widow, a son and three daughters. It
appears that the petitioner at the time of his
father's demise was a minor. He moved an
application,
seeking
compassionate
appointment on 10.11.2020, after attaining
the age of majority. On 11.01.2021, the
District Cane Officer, Sambhal demanded
some documents, which the petitioner
provided on 25.10.2021. On 21.11.2021, the
petitioner submitted some other documents
to the District Cane Officer for the
consideration of his claim. The petitioner
claimed inaction on the respondents' part to
consider
his
case
for
compassionate
appointment and said that despite his
requests to the respondents to pass necessary
orders, no orders were made. Very recently,
again it is pleaded that the petitioner made
applications
dated
21.02.2023
and
17.07.2023 before the District Cane Officer,
urging his claim for a consideration for
compassionate appointment, but to no avail.
It is pleaded that the only source of
livelihood for the petitioner and his father's
family was the deceased's salary. After his
demise
on
13.11.2011,
neither
compassionate
appointment
has
been
offered by the District Cane Officer to the
petitioner nor post retiral dues released in his
favour. He is on the verge of starvation. The
respondents are sitting tight over the matter.
It is on these pleadings that the petitioner
initially sought a writ, order or direction in
the nature of mandamus directing the Cane
Commissioner, Lucknow, the District Cane
Officer, District Sambhal to pass appropriate
orders on the petitioner's application for
compassionate appointment. This Court
vide order dated 15.09.2023 issued a show
cause notice to the respondents in terms of
the following orders:

"The petitioner's father, who was a
Stock Clerk in the office of the District Cane
Officer, Chandausi, died in harness on
13.08.2011. The petitioner was a minor at
the time of his father's demise. He applied
for
compassionate
appointment
on
10.11.2020.
Let the District Cane Officer,
District-Sambhal file his personal affidavit
within ten days showing cause why the
petitioner's
claim
for
compassionate
appointment has not been considered so far.
Lay this writ petition as fresh on
03.10.2023.
Let this order be communicated to
the District Cane Officer, District-Sambhal
by the Registrar (Compliance) by Monday
i.e. 18.09.2023."

3. A counter affidavit was filed on
behalf of respondent No.3 on 03.10.2023.
Since it was not on record on that day, the
matter was adjourned to 11.10.2023. A
perusal of the counter affidavit shows that
the State Authority has passed a resolution
dated 25.09.2023, rejecting the petitioner's
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
claim for compassionate appointment. This
Court, accordingly, permitted the petitioner
on 11.10.2023 to move an application,
seeking to amend the writ petition and
challenge the order dated 25.09.2023. An
application for the purpose was moved in
Court on 20.11.2023, which was taken on
record and allowed by an order of the said
date. A supplementary affidavit was then
filed by the petitioner, in answer to which, a
supplementary counter affidavit was filed in
Court. The parties having exchanged
affidavits, when the matter came up on
11.12.2023, it was admitted to hearing,
which proceeded forthwith and concluded.
Judgment was reserved.

4. Heard Mr. Rajesh Kumar Yadav,
learned Counsel for the petitioner, Ms.
Jhanvi Singh, Advocate holding brief of Mr.
Ravindra Singh, learned Counsel appearing
on behalf of the District Cane Officer,
Sambhal and Mr. Girijesh Kumar Tripathi,
learned Additional Chief Standing Counsel
appearing
on
behalf
of
the
State
respondents.

5. A perusal of the impugned order
dated 25.09.2023 passed by the State
Authority shows that the petitioner at the
time of his father's demise was aged about 9
years. It is remarked that the application
moved on behalf of the petitioner for
compassionate appointment was forwarded
by the District Cane Officer, Sambhal to the
State Authority vide a memo No. 767/ Shee
dated 20.07.2021. It is recorded by the State
Authority that the case is being considered
under the U.P. Cooperative Cane Service
Regulations,
1975
(for
short,
'the
Regulations of 1975') by the Committee
appointed for the purpose, which has
resolved in terms that the Uttar Pradesh
Recruitment of Dependents of. Government
Servants Dying in Harness Rules, 1974 (for
short, 'the Rules of 1974') have been
enforced for the purpose of providing
immediate succour to the dependent family
of a deceased government servant. In this
case, Sanjay Pathak died on 13.08.2011 and
the family have managed to live through it
normally for ten years. At the time of his
demise, the deceased's dependent was his
widow, who could have applied for
compassionate appointment in order to
provide for the family immediately, but no
such application was made on her behalf.

6. The Committee inferred that the
widow not applying showed that after
Sanjay Pathak's demise, the family faced no
immediate financial crisis. Now, ten years
after his demise, his son has applied solely
for the purpose of securing employment. It
is also remarked in the order that his widow,
promptly after Pathak's death, did not make
an application that her son is a minor and
that his application may be considered as
soon as he attains majority. The Committee
also found that after the employee passed
away, the fact that his dependent family
members did not claim compassionate
appointment and did so after a lapse of about
10 years in order to secure employment,
shows that the case was one that did not fit
into
the
requirement
of
a
valid
compassionate appointment claim under the
Regulations of 1975 and the Rules of 1974.

7. It is also observed by the
Committee that the District Cane Officer,
Sambhal had evaluated the financial
circumstances of the deceased's family. He
found upon inquiry, which he has submitted
in the form of a report, that the deceased's
wife was employed as an Anganwadi
Karyakatri.
She
has
established
the
Anganwadi Kendra in her own house
together with the other family members of
the late Sanjay Pathak. It was also reported
5 All. Aman Pathak Vs. State of U.P. & Ors.
1123
that the deceased's wife, Smt. Sudha Pathak
and his son, Aman Pathak, hold an area of
0.498
hectares
and
0.405
hectares,
respectively of agricultural land, situate in
Village Bahat Karan and Gavan, Tehsil
Gunnaur, District Sambhal. It is observed by
the Committee that the fact that the
deceased's
wife
is
employed
as
an
Anganwadi Karyakatri, his heirs holding
agricultural land and the fact that the
deceased's family have been leading life
normally for 12 years since he passed away,
shows that it was not a case, where the claim
for compassionate appointment ought to be
accepted. It is on the basis of the said
reasoning of the Committee that the State
Authority rejected the petitioner's claim.
The rejection was formally communicated
to the petitioner through the order dated
30.09.2023 passed by the District Cane
Officer, Sambhal. Both these orders are
impugned in this petition.

8. Upon carefully hearing learned
Counsel for the parties and perusing the
record, this Court finds that the respondents
have not considered all relevant factors to
judge
the
petitioner's
claim
for
compassionate appointment. They might
have broadly examined the claim on some
relevant parameters, but left out of
consideration equally important relevant
material, which if considered, might have
led them to a contrary conclusion. The fact
that the deceased's widow did not apply
immediately
for
compassionate
appointment is relevant; the fact that she is
employed as an Anganwadi Karyakatri, has
a house of her own for the family, where she
runs the Anganwadi Centre are all relevant.
It is also relevant that the dependents of the
deceased, including his widow and the
petitioner, have some agricultural holding. If
from this relevant information a plausible
inference has been drawn, is quite another
matter. If a plausible inference has been
drawn, it is not for this Court to say if there
is an equally plausible view which the Court
would take and then substitute it for the
respondents' opinion. That is beyond the
province of a wednessbury review. At the
same time, if perverse conclusions have
been drawn from the material considered,
though the material is relevant, this Court
would have justification to interfere.

9. So far as the question of leaving
out of consideration relevant material bearing
on the issue of the petitioner's entitlement to
seek compassionate appointment, it must be
remarked that it nowhere figures, what was the
death-cum-retirement benefits that the family
received upon death of the employee. It has
not been considered at all what are the
investments of the family that yield income. It
has also not been considered what are the
liabilities of the family to be met. It has figured
that two of the deceased's daughters are
married, but one is still unmarried. These are
matters that are relevant, but omitted from
consideration altogether by the State Authority
and their Committee, who have examined the
petitioner's claim. The State Authority has
much depended on the fact that the family
have managed to survive for a period of 12
years and leading a normal life. It is true that
the family have not landed in an orphanage,
but between the family becoming a causality
of the civilization on account of the
breadwinner's
untimely
death
and
a
sufficiently prosperous or normal life is the
twilight zone, where they could be seen
struggling to make end's meet. It is for this
reason that in State of W.B. v. Debabrata
Tiwari and others, 2023 SCC OnLine SC
219, it was held:

"32. On consideration of the
aforesaid decisions of this Court, the
following principles emerge:
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
i.
That
a
provision
for
compassionate
appointment
makes
a
departure from the general provisions
providing for appointment to a post by
following
a
particular
procedure
of
recruitment. 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 and must
be resorted to only in order to achieve the
stated objectives, i.e., to enable the family of
the deceased to get over the sudden financial
crisis.
ii. Appointment on compassionate
grounds is not a source of recruitment. The
reason for making such a benevolent scheme
by the State or the public sector undertaking
is to see that the dependants of the deceased
are not deprived of the means of livelihood.
It only enables the family of the deceased to
get over the sudden financial crisis.
iii. Compassionate appointment is
not a vested right which can be exercised at
any
time
in
future.
Compassionate
employment cannot be claimed or offered
after a lapse of time and after the crisis is
over.
iv. That compassionate appointment
should be provided immediately to redeem
the family in distress. It is improper to keep
such a case pending for years.
v. In determining as to whether the
family is in financial crisis, all relevant
aspects must be borne in mind including the
income of the family, its liabilities, the
terminal benefits if any, received by the
family, the age, dependency and marital
status of its members, together with the
income from any other source.
34. As noted above, the sine qua non
for entertaining a claim for compassionate
appointment is that the family of the
deceased employee would be unable to
make two ends meet without one of the
dependants of the deceased employee being
employed on compassionate grounds. The
financial condition of the family of the
deceased, at the time of the death of the
deceased, is the primary consideration that
ought to guide the authorities' decision in the
matter."
(emphasis by Court)

10. The position of the law that then
appears is that what has to be compared is
the income of the deceased at the time of his
death and the family's income after his
demise from various sources. This would be
a safe index to assess, if indeed the family
have been plunged into a crisis or they still
have a reasonably normal life to lead, which
is not ridden by financial crisis. It must be
remarked that the State Authority and their
Committee have singularly omitted to
consider this very relevant material as to
what was the deceased's income, when he
passed away and the family's income when
the District Cane Officer Officer appraised
their circumstances.

11. The deceased's widow is no
doubt
employed
as
an
Anganwadi
Karyakatri, but that does not mean that the
family are not financially struggling. An
Anganwadi Karyakatri is not a government
employment. It is pleaded in paragraph No.6
of the supplementary affidavit that the
engagement as an Anganwadi Karyakatri is
a contractual job, for which no salary is paid.
The
petitioner's
mother
receives
an
honourarium in the sum of Rs.3250/- -
6500/- per month. It must the remarked that
a contractual employment that offers the
sum of money that the petitioner alleges is
hardly any reckonable financial resource to
guarantee a subsistence level of income for
the family. The fact that the petitioner's
mother receives an honourarium for her
engagement as an Anganwadi Karyakatri in
the sum of Rs.3250/- - 6500/- per month, has
5 All. Aman Pathak Vs. State of U.P. & Ors.
1125
not been denied in any of the two counter
affidavits filed on behalf of the respondents.
Therefore, the fact asserted in paragraph
No.6 of the supplementary affidavit has to
be accepted as correct. In fact, in the
supplementary counter affidavit, contents of
paragraph No.6 about the fact of what the
nature of engagement of an Anganwadi
Karyakatri is and what remuneration is
received, has not at all been denied or
pleaded to by the respondents.

12. Another factor that has been
taken into consideration by the respondents
is the existence of agricultural holdings.
Now, the agricultural holdings that have
been found with the petitioner and his
mother, are not lavish in size or big enough
to support a steady income. The impugned
order records that the holdings are situate in
two different villages, one in Village Bahat
Karan and the other in Gavan. The petitioner's
mother has a total of 0.498 hectares whereas
the petitioner has a holding of 0.409 hectares.
The Khatauni, that have been annexed with
the counter affidavit at pages 29, 30, 31, 32, 33
and 34, would show that the holdings are joint
with other co-sharers. The District Cane
Officer, Sambhal has not made any endeavour
to ascertain what is the yield from these small
holdings to the petitioner or his mother, that is
to say, the deceased's dependent family. By the
bare existence of an agricultural holding with
the petitioner and his mother of the sizes
noticed in two different villages, there cannot
be a plausible inference drawn that it yields
reckonable income to the petitioner or the
family, whom the deceased has left behind. To
do that, the District Cane Officer has to
undertake further inquiries and make a report
on the annual yield from these holdings to the
petitioner and his mother.

13. So far as the delay in making the
application for compassionate appointment
is concerned, it is obvious that the petitioner
was a 9 years old boy, when his father passed
away. He cannot be blamed for making the
application 9 years after his demise. He
apparently made the necessary application
as soon as he attained majority. There is
always adequate provision to consider the
case of minors, while exercising the power
to condone delay, in a deserving case by the
Appointing Authority, where the delay is
more than five years. The power of
condonation may be exercised by a higher
Authority and in this case, there could be no
higher Authority than the State Authority
itself. The State Authority seems to have
gone by the fact that the petitioner's widow
ought to have applied. They have not
inquired into her educational qualifications,
if at all she would be eligible to seek
employment in their establishment, even on
a Class-IV post. A contractual engagement
as an Anganwadi Karyakatri is on the basis
of very different qualifications, from which
no inference can ipso facto be drawn that she
too could have applied upon her husband's
demise for compassionate employment. The
respondents ought to have probed the issue
and sought information from the petitioner's
mother about reasons why she did not
choose
to
apply
for
compassionate
appointment before they reached the
conclusion that the widow not having made
a prompt application, the inescapable
inference is that there was no financial crisis
for the family. We do not approve of the
reasoning that the State Authority have
adopted to deal with the petitioner's case.
They ought to have done much more than
what they have done, while passing the
impugned order dated 25.09.2023.

14. This Court must remark that the
petitioner
made
his
application
for
compassionate appointment on 10.11.2020
and on the own showing of the State
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority, the application was received by
them from the District Cane Officer,
Sambhal on 20.07.2021. The impugned
order was passed on 25.09.2023. This order
came to be passed after we had passed
orders
on
15.09.2023,
asking
the
respondents to show cause in terms
indicated in that order, which we have
quoted
hereinabove
in
extenso.
In
administrative decision making, this Court
cannot lose sight of the fact that the primary
decision
maker,
the
Administrator,
sometimes loses his objectivity, the moment
he is visited with a judicial command to do
his duty. Either he is panicked into acting
erratically and taking a wrong decision or
turns malicious and motivated to teach the
man, who has brought a writ to him of any
kind. Administrators must not panic or
retaliate when faced with a judicial
command, asking them to perform their
duties. Sadly, they often do. Here, the Court
thinks that the very nonchalant and
halfhearted appraisal of the petitioner's
claim, which the State Authority have done
by the order impugned dated 25.09.2023,
could be the result of either of the two
possibilities that we have indicated above.
We are sure that in the sequence of things, it
is the result of one of the two; which one,
would be best known to the State Cadre
Authority themselves. We do not wish to
probe into it, but caution the State Authority
in this regard.

15. In the result, this petition
succeeds and is allowed. The impugned
order dated 25.09.2023 passed by the State
Authority and the order dated 30.09.2023
passed by the District Cane Officer,
Sambhal
are
hereby
quashed.
The
petitioner's application for compassionate
appointment stands remitted to the State
Authority, which they shall now decide
strictly in accordance with law, within a
period of one month, from the date of receipt
of this judgment, bearing in mind our
remarks.

16. Costs easy.

17. Let a copy of this judgment be
communicated to the District Cane Officer,
District Sambhal and the Adhyaksha, Rajya
Ganna Pradhikaran, Uttar Pradesh by the
Registrar (Compliance).
----------
(2024) 5 ILRA 1126
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 17262 of 2023

Yasmeen Talat Usmani ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Bhagwan Dutt Pandey

Counsel for the Opp. Parties:
C.S.C., Abhishek Srivastava

(A) Service law - Widow's claim for refund
of deducted gratuity amount from her
deceased husband's employment benefits -
The Payment of Gratuity Act, 1972 -
Section 4(6)(a) - Payment of gratuity -
gratuity of an employee may be forfeited to
the extent of damage or loss caused to the
employer, if his services have been
terminated for any act, willful omission or
negligence, causing any damage or loss to
or destruction of the employer's property -
employer
cannot
recover
alleged
embezzlement
amount
from
gratuity
without
following
due
process
-
Departmental
proceedings
or
judicial
proceedings pending against an employee
abate upon their death - No recovery can