# Amit Kumar Singh v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 72
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-05
- **Case number:** Civil Misc. Writ Petition No. 46983 of 2004
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-singh-v-state-of-u-p-and-others-40382
- **Pages:** 3

## Headnote

Rules,
1974Compassionate
appointment-Petitioner
accepted appointment on class IV postThus his claim for appointment under
Dying in Harness Rules stood exhaustedTherefore, held, relief of his adjustment
on class III post after already having
availed
benefit
of
compassionate
appointment cannot be granted.

Held: Para 5

The Government Order dated 28.5.2004
would also not help the petitioner. It
only
provides
that
compassionate
appointment should not be given on a
higher post than the one on which the
deceased employee was working. The
same cannot be interpreted to mean that
such an appointment should necessarily
be made on a post equivalent to the one
on which the deceased employee was
working. Since the same only provides
that such appointment cannot be given
on a higher post, it would not mean that
the
dependent
cannot
be
given
appointment on a lower post. In the
present case the petitioner was offered
appointment on a class IV post and on
his acceptance of the same, his claim for
appointment under the Dying in Harness
Rules stood exhausted. In the absence of
any provision for re-considering his claim
for appointment on a higher post when it
falls vacant, in my view, the relief for
adjustment on a class III post after
already having once availed the benefit
of
appointment
on
compassionate
ground, cannot now be granted.
Case law discussed:
(1994) 6 SCC 560
2000 (3) UPLBEC 2522

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
72
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2004

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 46983 of 2004

Amit Kumar Singh

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

Counsel for the Petitioner:
Sri Deepak Jaiswal
Sri R.L. Singh

Counsel for the Respondents:
C.S.C.

Dying
in
Harness
Rules,
1974Compassionate
appointment-Petitioner
accepted appointment on class IV postThus his claim for appointment under
Dying in Harness Rules stood exhaustedTherefore, held, relief of his adjustment
on class III post after already having
availed
benefit
of
compassionate
appointment cannot be granted.

Held: Para 5

The Government Order dated 28.5.2004
would also not help the petitioner. It
only
provides
that
compassionate
appointment should not be given on a
higher post than the one on which the
deceased employee was working. The
same cannot be interpreted to mean that
such an appointment should necessarily
be made on a post equivalent to the one
on which the deceased employee was
working. Since the same only provides
that such appointment cannot be given
on a higher post, it would not mean that
the
dependent
cannot
be
given
appointment on a lower post. In the
present case the petitioner was offered
appointment on a class IV post and on
his acceptance of the same, his claim for
appointment under the Dying in Harness
Rules stood exhausted. In the absence of
any provision for re-considering his claim
for appointment on a higher post when it
falls vacant, in my view, the relief for
adjustment on a class III post after
already having once availed the benefit
of
appointment
on
compassionate
ground, cannot now be granted.
Case law discussed:
(1994) 6 SCC 560
2000 (3) UPLBEC 2522

(Delivered by Hon'ble Vineet Saran, J.)

1. The father of the petitioner was
Senior clerk (a Class III post) in Nagar
Panchayat, Phoolpur, Azamgarh. He died
in harness on 20.7.1998. The petitioner
thereafter applied for appointment on
compassionate ground under the Dying in
Harness Rules, 1974. By an order dated
13.12.1999 the petitioner was given
appointment on a class IV post as Peon in
Nagar Panchayat Phoolpur, Azamgarh.
The petitioner now claims that since he is
qualified for being appointed on a class
III post, which was not vacant at the time
when he was given appointment on
compassionate ground in the year 1999
and has now fallen vacant on 10.12.2003,
he should be adjusted on such class III
post. In support of his contention he relies
on a Government Order dated 28.5.2004
wherein in Paragraph 3 it has been stated
that the dependents of the employee who
die in harness should not be appointed on
a higher post than that on which the
deceased
employee
was
working.
According to the petitioner the dependent
of an employee thus ought to be given
employment on such post on which the
deceased employee was working if he has
the
requisite
qualifications
for
appointment on such post. He thus
contends that since the petitioner has the
requisite qualification for appointment on
http://www.allahabadhighcourt.nic.in
1All] Amit Kumar Singh V. State of U.P. and others
73
a class III post, he should be adjusted on
such post which has now fallen vacant.

2. Having heard learned counsel for
the petitioner as well as learned Standing
counsel
appearing
for
the
StateRespondents and considering the facts
and circumstances of this case, I do not
find that the petitioner is entitled to the
reliefs claimed in this writ petition.

3.

The
appointment
on
compassionate ground is given to tide
away the sudden financial crisis which is
suffered by the family members on
account of death of the sole bread earner.
Once such appointment has already been
offered to, and accepted by, the dependent
of such deceased employee, the purpose
of
giving
such
appointment
on
compassionate
ground
is
achieved.
Appointment on compassionate ground
cannot be treated as an alternate source of
recruitment
or
employment.
Such
appointment is provided for a specific
purpose which is to give immediate
financial relief to the family members of
the deceased employee.

4. Following the decision of the
Apex court in State of Rajasthan vs.
Umrao Singh 1994 (6) S.C.C. 560 a
Division Bench of this Court in the case
of Dinesh Chandra Sharma vs. District
Inspector of Schools, Meerut 2000(3)
UPLBEC 2522 has held that no person is
entitled to claim the benefit of Dying in
Harness Rules more than once. In the
present case, admittedly there was no
class III post vacant at the time when
appointment had been given to the
petitioner on a class IV post. The
petitioner having once accepted such
appointment on compassionate ground,
cannot now after more than four years
claim adjustment on a class III post when
it later falls vacant. The law does not
provide for a person to be given the
benefit of compassionate appointment
more than once. As such no mandamus
can be issued to the respondent authorities
directing them to provide employment to
the petitioner on a class III post when it
falls vacant after four years of the
petitioner having already availed the
benefit of appointment under the Dying in
Harness Rules. He would be entitled to
promotion on such post, in accordance
with law, or else if the post is to be filled
up by direct recruitment, he can compete
with other candidates and seek such
appointment if he is otherwise found
eligible and entitled for such appointment.

5. The Government Order dated
28.5.2004 would also not help the
petitioner.
It
only
provides
that
compassionate appointment should not be
given on a higher post than the one on
which
the
deceased
employee
was
working. The same cannot be interpreted
to mean that such an appointment should
necessarily be made on a post equivalent
to the one on which the deceased
employee was working. Since the same
only provides that such appointment
cannot be given on a higher post, it would
not mean that the dependent cannot be
given appointment on a lower post. In the
present case the petitioner was offered
appointment on a class IV post and on his
acceptance of the same, his claim for
appointment under the Dying in Harness
Rules stood exhausted. In the absence of
any provision for re-considering his claim
for appointment on a higher post when it
falls vacant, in my view, the relief for
adjustment on a class III post after already
having once availed the benefit of
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
74
appointment on compassionate ground,
cannot now be granted.

The writ petition is, accordingly,
dismissed. No order as to cost.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2004

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 6104 of 2003

Ram Singh

...Petitioner
Versus
U.P. State Road Transport Corporation
and others

 ...Respondents

Counsel for the Petitioner:
Sri O.N. Tripathi
Sri A.K. Verma

Counsel for the Respondents:
Sri M.P.S. Niranjan
Sri C.P. Tripathi
Sri Sameer Sharma
S.C.

Constitution of India, Article 226-Writ
Petition to quash impugned order passed
by Managing Director of Corporation
denying petitioner relief of inclusion of
period during which he worked as work
charge
employee
for
purposes
of
payment
of
pension-held,
petitioner
having opted for Employees Provident
Fund Scheme and having accepted the
amount under said scheme, cannot after
more than two decodes, be permitted to
switch over to pension scheme.

Held: Para 6

In the case of V.K. Ramamurthy vs.
Union of India (1997) 1 UPLBEC 439 the
Apex Court has held that once an
employee has opted for the Employees
Provident
Fund
Scheme
and
has
withdrawn the entire amount, then such
employee cannot be permitted to switch
over to the pension scheme. The ratio of
the said decision would squarely apply to
the facts of this case. The petitioner
herein having opted for the Employees
Provident Fund Scheme and having
accepted the amount under the said
scheme, cannot now, specially in this
case after more than two decades, be
permitted to switch over to the pension
scheme. The offer of refund of the
amount
already
paid
under
the
Employees Provident Fund Scheme also
cannot be accepted.
Case law discussed:
(1997) 1 U.P.L.B.E.C. 439 (SC)

(Delivered by Hon'ble Vineet Saran, J.)

1. I have heard Sri O.N.Tripathi,
learned counsel for the petitioner as well
as Sri Sameer Sharma, learned counsel
appearing on behalf of the Respondents
and have perused the record. Counter and
rejoinder affidavits have been exchanged
and with the consent of the learned
counsel for the parties this writ petition
has been heard and is being finally
disposed of at this stage.

2. It is the admitted case that the
petitioner retired from service in the year
1979. It was for the first time in the year
2001 he filed an application to the
respondent-authorities for inclusion of the
period during which he worked as a workcharge employee for the purposes of
payment
of
pension.
Thereafter
he
approached this Court by filing Civil
Misc. Writ petition No. 27784 of 2002
which was disposed of by this court on
23.7.2002
with
a
direction
to
the
Respondent-Corporation to decide his
representation
dated
8.11.2001,
in
accordance with law. By the impugned