# Amrawati and another v. State of U.P

- **Citation:** (2009) 2 ILRA 338
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-12
- **Case number:** Civil Misc. Writ Petition No. 60638 of 2008
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amrawati-and-another-v-state-of-u-p-41380
- **Pages:** 3

## Headnote

(Termination of Service) Rules, 1975Petitioner-working as warder in jailappointed on Compassionate -during
training period on ground certain -
allegation-two show cause notice given
duly
replied
by
petitioner-
without
holding
disciplinary
enquiry
without
charge sheeted termination order passed
2 All] Nagesh Katariya V. State of U.P. and others
339
in
the
garb
of
Rules
1975-heldCompassionated
appointment
always
treated
regular
appointment-
termination order wholly illegal.

Held: Para 7

After hearing counsel for the parties, I
am of the opinion that the appointment
under Dying in Harness Rules of the
dependant of a Government Servant,
who was working on a permanent post,
is permanent appointment as has been
held by the Division Bench in the case of
Ravi Karan Singh (supra). Hence his
services could not have been terminated
treating his appointment to be on
temporary basis. If the petitioner was
not performing his duties properly, it
was open to the authority to initiate
disciplinary proceedings against him for
the purpose of terminating his services.
Case Law discussed:
1999(2) AWC 976, [2001 (1) LB. E.S.R. 116
(Alld.)]

## Text

338 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
made
in
the
impugned
FIR,
the
allegations are disclosing the commission
of a cognizable offence and there is no
ground for quashing the FIR and its
investigation, therefore, the prayer for
quashing the FIR and its investigation is
refused.

7. However, considering the facts,
circumstances of he case and academic
career of the petitioner, it is directed that
in case petitioner appears before the court
concerned within 30 days from today and
applies for bail, the same shall be heard
and disposed of in view of Smt.
Amrawati and another Vs. State of U.P,
2005 Cr.L.J. 755 has been specifically
approved in this decision. In this regard
the Full bench has held in Amrawati:

1. Even if a cognizable offence is
disclosed in the FIR or complaint the
arrest of the accused is not a must,
rather: the police officer should be
guided by the the decision, of the
Supreme Court in Joginder Kumar
Vs. State of U.P. 1994 Cr.L.J. 1981,
before deciding whether to make an
arrest or not.
2. The High Court should ordinarily not
direct any Subordinate Court to
decide the bail application the same
day as that would be interfering with
the judicial discretion of the court
hearing
the
bail
application.
However, as stated above, when the
bail application is under section 437
Cr. P .C. ordinarily the Magistrate
should himself decide the bail
application the same day, and if he
decides in a rare and exceptional case
not to decide it on the same day, he
must record his reasons in writing.
As regards the application under
section 439 Cr.P.C. it is in the
discretion of the learned sessions
judge, considering the facts and
circumstances whether to decide the
bail application the same day or not,
and it is also in his discretion to grant
interim bail the same day subject to
the final decision on the bail
application later.

8. The same has been approved by
the
Hon'ble
Apex
Court
in
Lal
Kamlendra Pratap Singh Versus State
of U.P. on 23.3.2009 in Criminal Appeal
No. 538 of 2009.

9. With this direction, this petition is
finally disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 60638 of 2008

Nagesh Katariya

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

Counsel for the Petitioner:
Sri Ashok Khare
Sri Siddharth Khare

Counsel for the Respondents:
Sri Nipendra Tripathi
S.C.

U.P. Temporary Government Servant
(Termination of Service) Rules, 1975Petitioner-working as warder in jailappointed on Compassionate -during
training period on ground certain -
allegation-two show cause notice given
duly
replied
by
petitioner-
without
holding
disciplinary
enquiry
without
charge sheeted termination order passed
2 All] Nagesh Katariya V. State of U.P. and others
339
in
the
garb
of
Rules
1975-heldCompassionated
appointment
always
treated
regular
appointment-
termination order wholly illegal.

Held: Para 7

After hearing counsel for the parties, I
am of the opinion that the appointment
under Dying in Harness Rules of the
dependant of a Government Servant,
who was working on a permanent post,
is permanent appointment as has been
held by the Division Bench in the case of
Ravi Karan Singh (supra). Hence his
services could not have been terminated
treating his appointment to be on
temporary basis. If the petitioner was
not performing his duties properly, it
was open to the authority to initiate
disciplinary proceedings against him for
the purpose of terminating his services.
Case Law discussed:
1999(2) AWC 976, [2001 (1) LB. E.S.R. 116
(Alld.)]

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel appearing for petitioner
assisted by Sri Nipendra Tripathi and
Standing Counsel who has accepted
notice on behalf of the respondent no. 1 to
4.

2. The facts of the case in brief are
that Surendra Katariya, father of the
petitioner was employed in permanent
capacity as Ambulence Driver. He died
during service on 5.7.2008. Petitioner
thereafter
applied
for
compassionate
appointment in place of his father and was
appointed as Warder in district Jail,
Meerut by Senior Superintendent of Jail,
Meerut. While he was undergoing training
at Training Institute at Lucknow, a notice
dated 2.10.2008 was issued calling for
explanation for not performing his duties
during training period and reiterating the
fact that he was Mess In-charge, he was
not serving food properly upto standard.
Petitioner
replied
both
the
notices.
Another
show
cause
notice
dated
7.10.2008 was issued to the petitioner
again calling for explanation in which he
was
communicated
by
the
Deputy
Director that he was failed in training and
was required to undergo further training
after availing two days leave.

3. It appears that by the impugned
order
dated
6/7.11.2008
Senior
Superintendent of Jail, Meerut terminated
the services of the petitioner, as his
services are no longer required, in
purported exercise of powers under U.P.
Temporary
Government
Servant
(Termination of Services) Rules 1975.
Aggrieved, petitioner has filed this writ
petition.

4. The contention of counsel for the
petitioner is that the compassionate
appointment is permanent appointment.
However, from the letter of appointment
dated 7.7.2008 (Annexure 1 to the writ
petition) it appears that the petitioner was
appointed on temporary basis, hence his
services have been terminated vide letter
dated 6/7.11.2008 under U.P. Temporary
Government Servant (Termination of
Service) Rules, 1975.

5. It is urged by counsel for the
petitioner that it is settled law that the
compassionate appointment is treated to
be permanent appointment if the deceased
government servant was employed on
permanent basis. He has relied upon a
Division Bench decision of this Court
rendered in the case of Ravi Karan Singh
Versus State of U.P. and others repoted
340 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
in 1999 (2) AWC 976 wherein the
Division Bench has held as under:
"2. In our opinion, an appointment
under the Dying -in-Harness Rules has to
be treated as a permanent appointment
otherwise if such appointment is treated
to be a temporary appointment, then it
will
follow
that
soon
after
the
appointment,
the
service
can
be
terminated and this well nullify the very
purpose of the Dying-in-Harness Rules
because such appointment is intended to
provide immediate relief to the family on
the sudden death of the bread earner. We
therefore, hold that the appointment
under Dying-in-Harness Rules is a
permanent
appointment
and
not
a
temporary appointment, and hence the
provisions
of
U.P.
Temporary
Government Servant (Termination of
Services) Rules, 1975 will not apply to
such appointments."

6. He has further relied upon the
decision rendered in the case of Om
Prakash
Versus
Superintending
Engineer, Nalkoop reported in [2001 (1)
LB. E.S.R. 116 (Alld.)] which is also to
the same effect.

Learned Standing Counsel submitted
that since the appointment of the
petitioner was temporary, therefore, his
services have rightly been terminated.

7. After hearing counsel for the
parties, I am of the opinion that the
appointment under Dying in Harness
Rules of the dependant of a Government
Servant,
who
was
working
on
a
permanent
post,
is
permanent
appointment as has been held by the
Division Bench in the case of Ravi Karan
Singh (supra). Hence his services could
not have been terminated treating his
appointment to be on temporary basis. If
the petitioner was not performing his
duties properly, it was open to the
authority
to
initiate
disciplinary
proceedings against him for the purpose
of terminating his services.

8. In the fact and circumstances of
the case, the writ petition deserves to be
allowed and is hereby allowed. The
impugned order of termination dated
6/7.11.2008 is quashed. However, it is
open to the respondent to proceed against
the petitioner for termination of his
services as permanent employee in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2009

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 19894 of 2008

Ved Pal Singh Bhati and another

 ...Petitioners
Versus
The State of U.P. and another

 ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha.

Counsel for the Respondents:
Sri Shashi Nandan, Sr. Advocate,
Sri D.K. Arora, Addl. Advocate General.
Sri M.C. Chaturvedi, Chief Standing
Counsel,
Sri R.B. Pradhan, Standing Counsel.

Constitution of India-Art. 226-Art. 14Discrimination-petitioner
working
as
member of Bar-tenure of working of
member are 2 years while the chairman's
tenure
is
six
years-held-amended
provisions
creation
of
statute-