# Ankita Tiwari & Anr v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 1014
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-07
- **Case number:** Civil Misc. Writ Petition (CERTIORARI) No. 37833 of 2013
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankita-tiwari-anr-v-state-of-u-p-ors-42924
- **Pages:** 3

## Headnote

Rules
1974-Rule-5(3)
read
with
U.P.
Government Servant (Discipline & Appeal)
Rules 1999-Duty and responsibility of
compassionate
appointee-towards
maintenance of dependents of deceased
employee-if such appointee neglect to
maintain other family members-shall be
subject to face disciplinary proceedingsdirection to deduct 5000/-per month from
salary of such employee and pay to these
2 All]. Ankita Tiwari & Anr. Vs. State of U.P. & Ors.
1015
dependents-namely
the
petitioneremployer to file affidavit of compliance.

Held: Para-7
The fifth respondent along with the
petitioners
was
dependent
upon
the
deceased at the time of his death, the fifth
respondent cannot deprive the petitioners
of their right to maintenance from the
salary of the fifth respondent which she
earns with a condition to maintain other
dependents failing which the service of the
fifth respondent can be terminated under
sub-rule (4) of the Rules.

## Text

1014 INDIAN LAW REPORTS ALLAHABAD SERIES
13 date of retirement to deduct two years'
salary and other emoluments paid to the
respondent, we may say that since the
respondent had worked during that period
without raising any objection from the
side of the appellant and the appellant had
got works done by the respondent, we do
not think that it was proper at this stage to
allow deduction from his retiral benefits,
the amount received by him as salary,
after his actual date of retirement."

16. In Chandi Prasad Uniyal (supra),
order to recover excess amount paid for the
reason of wrong fixation of pay was upheld
as it amounted to unjust enrichment, to
which the appellant was not entitled, but if
recovery would ensue hardship, then the
Court can prohibit the respondents from
making recovery. The present case is not a
case of payment of any amount on wrong
fixation of pay or payment over and above
that was due. The respondents took work
from the petitioner and paid his salary for
the work, though it was beyond the age of
retirement, the petitioner is class IV
illiterate employee, there is no fraud or
misrepresentation on his part, thus the
respondents cannot recover the amount of
salary paid to the petitioner for the period
after retirement till 13.05.2011, that too
without putting the petitioner to notice, the
impugned order was passed without
affording any opportunity and is liable to be
set aside on that ground alone.

17. For the facts and reasons stated
herein above, the impugned order dated
13.05.2011 passed by the respondent no.
3 is set aside to the extent it provides for
recovery. It is provided that the date of
birth of the petitioner shall be 03.09.1949,
accordingly, the age of superannuation
would be 30.09.2009. The post retiral and
terminal benefits shall be calculated as
due on 30.09.2009, however, the salary
paid to the petitioner w.e.f. 01.10.2009 to
13.05.2011 shall not be recovered from
the petitioner, and in case, the recovery
has been made from the terminal
benefits/retiral dues, the same shall be
refunded to the petitioner within a period
of two months from the date of filing of
certified copy of this order before the
respondent no. 3, Executive Engineer,
Urban Electricity Supply Division (F &
R) Sarvodaya Nagar, KESO, Kanpur.

18. Subject to the above, the writ
petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition (CERTIORARI) No.
37833 of 2013

Ankita Tiwari & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rakesh Kumar Pathak

Counsel for the Respondents:
C.S.C., Sri Ashutosh Vaish, Sri Ayank
Mishra, Sri P.K. Singh

Uttar Pradesh Recruitment of dependents
of Government Servant Dying in Harness
Rules
1974-Rule-5(3)
read
with
U.P.
Government Servant (Discipline & Appeal)
Rules 1999-Duty and responsibility of
compassionate
appointee-towards
maintenance of dependents of deceased
employee-if such appointee neglect to
maintain other family members-shall be
subject to face disciplinary proceedingsdirection to deduct 5000/-per month from
salary of such employee and pay to these
2 All]. Ankita Tiwari & Anr. Vs. State of U.P. & Ors.
1015
dependents-namely
the
petitioneremployer to file affidavit of compliance.

Held: Para-7
The fifth respondent along with the
petitioners
was
dependent
upon
the
deceased at the time of his death, the fifth
respondent cannot deprive the petitioners
of their right to maintenance from the
salary of the fifth respondent which she
earns with a condition to maintain other
dependents failing which the service of the
fifth respondent can be terminated under
sub-rule (4) of the Rules.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard learned counsel for the
petitioner and Sri Ashutosh Vaish appearing
for respondent corporation and Sri P.K.
Singh appearing for respondent no. 5.

2. The first petitioner and fifth
respondent
are
sisters
and
second
petitioner their mother.

3. The father of the first petitioner
was working in the respondent-power
corporation and the Competent Court
declared his civil death on 24.11.2005.
The fifth respondent was given service
under the dying in harness rules by the
respondent-corporation in 2006.

4. The contention of learned counsel
for the petitioner is that after being
employed, the fifth respondent has
married and has started living separately
and is not maintaining the mother and the
unmarried,
unemployed
sister
(first
petitioner) as per sub-clause (3) of rule 5 of
"The
Uttar
Pradesh
Recruitment
Of
Dependents Of Government Servant Dying
In-Harness Rules, 1974 rules, it is incumbent
upon the person being appointed under the
dying in harness rules to maintain the other
family members, failing which such person
can
be
proceeded
under
the
U.P.
Government Servant (Discipline and Appeal)
Rules 1999. Sub-rule (3) and (4) of rule 5 of
1974 Rules are as follows:-

"(3) Every appointment made under
sub-rule (1) shall be subject to the
condition that the person appointed under
sub-rule (1) shall maintain other members
of the family of deceased Government
servant, who were dependent on the
deceased
Government
servant
immediately before his death and are
unable to maintain themselves.

(4) Where the person appointed
under sub-rule (1) neglects or refuses to
maintain a person to whom he is liable to
maintain under sub-rule (3), his services
may be terminated in accordance with the
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999, as
amended from time to time."

5. Sri P.K. Singh appearing for
fifth respondent does not dispute that
petitioners
were
dependent
upon
deceased employee immediately before
his death and are unable to maintain
themselves. In the counter affidavit, the
fifth respondent has stated that she is
maintaining the mother and her sister
and in the letters dated 25.3.2013 and
12.4.2013 it has been stated that fifth
respondent is prepared to maintain the
petitioners. Being confronted with a
query as to how much maintenance the
fifth respondent is prepared to pay, Sri
Singh submits that the fifth respondent
has two minor children and it will not be
possible for the fifth respondent to pay
50% of her wages, as she is a Class-IV
employee, however, Sri P.K. Singh
submits that he has instructions to state
that the fifth respondent is prepared to pay
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonable amount per month to the
petitioners.

6. Sri Vaish appearing for the
respondent-corporation submits that order
passed by the Court shall be complied
with and the maintenance amount shall be
drawn in favour of the petitioners.

7. The object granting appointment
on compassionate ground is intended to
enable the family of the deceased
employee to tide over the sudden crisis
resulting due to death of the bread earner
who had left the family in penury without
any
means
of
livelihood.
Such
appointments
are
made
purely
on
humanitarian consideration with an object
to provide the family some sources of
livelihood.
The
appointment
on
compassionate ground is not a sourse of
recruitment, death of the employee is also
not the basis for appointment, the only
consideration is the distress to which the
family is put into, thus all the stake
holders viz the dependents upon the
deceased
employee
are
entitled
to
maintenance. The fifth respondent along
with the petitioners was dependent upon the
deceased at the time of his death, the fifth
respondent cannot deprive the petitioners of
their right to maintenance from the salary of
the fifth respondent which she earns with a
condition to maintain other dependents
failing which the service of the fifth
respondent can be terminated under sub-rule
(4) of the Rules.

8. In such view of the matter, the
fourth respondent, Executive Engineer,
Vidhyut Vitran Khand (IInd) Purvanchal
Vidhyut Vitran Nigam Limited, Ghazipur
shall w.e.f. 1st September, 2014 pay Rs.
5,000/- per month, by way of cheque,
drawn in favour of the second petitioner,
Ram Dulari Devi wife of Late Bhola Nath
Tiwari, payable from the monthly salary
of fifth respondent. The payment shall be
made by tenth of each month.

9. On the next date fixed, the fourth
respondent as well as the fifth respondent
shall file affidavit of compliance.

10. List on 8th September, 2014.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2014

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 39862 of 2014

Sunita Sharma ..Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dharam Pal Singh, Sri Manoj Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Smt. Manju R. Chauhan

Uttar Pradesh Kshetriya Panchayat & Zila
Panchayat
Adhiniyam,
1961-Section
15(3)(ii)-No
confidence
motion-District
Magistrate by notice dated 27.06.14stipulated-meeting can not held only
beyond 30 days-but fixed the date of
confidence motion meeting as 16.08.14held-ex-facie illegal under teeth of section
15 of adhiniyam-quashed.

Held: Para-6
In the instant case, the notice is dated 27th
June, 2014, and therefore, the meeting
could have been convened prior to 27th
July, 2014. The said date has already
passed by and as such any future date
cannot be fixed under the old notice. The