# Annapurna v. State of U.P. & Ors. 380 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 5 ILRA 379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-01
- **Case number:** Writ A No. 23192 of 2016
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/annapurna-v-state-of-u-p-ors-380-indian-law-reports-allahabad-series-50210
- **Pages:** 5

## Headnote

Law
-
Compassionate
Appointment - 'Suitable post' - U.P.
Recruitment
of
Dependents
of
Government Servants (Dying in Harness)
Rules, 1974 - Appointment on "suitable
post" has to be considered considering the
status / post held by the deceased
employee
and
the
educational
qualification / eligibility criteria of the
person
to
be
offered
compassionate
appointment and that the offer is to be
made considering the post held by the
deceased employee and the suitability of
the post of the persons to whom the
compassionate
appointment
is
being
offered. (Para 10)

In the present case, the husband of the
petitioner was working on a class III post who
died in harness. Admittedly the petitioner has
got educational qualification of Master of Arts
but despite the proposal in her favour by the
respondent no. 3 on 16.08.2016 for being
given a class III post, she has been offered a
class IV post. Thus considering the law laid
down by Hon'ble the Apex Court in the case
of Premlata (infra) and the interpretation
given to the Rules 1974 it is apparent that the
offer
of appointment as given to the
petitioner on a class IV post cannot be
countenanced
in
any
manner
more
particularly
considering
her
educational
qualifications and the post held by her
husband. (Para 11)

Directions have been issued to consider the
claim of the petitioner for compassionate
appointment on a class III post considering the
educational qualification of the petitioner of
Master of Arts as well as the status of the post
held by her deceased husband which was a
class III post. (Para 12)

Writ petition disposed of. (E-4)

Precedent followed:
State of Uttar Pradesh & ors. Vs Premlata, 2022
(1) SCC 30 (Para 9)

Present petition challenges order dated
07.09.2016, passed by the Secretary,
State Election Commission, Lucknow, so
far as it relates to appointment of the
petitioner on class IV post.

## Text

5 All. Annapurna Vs. State of U.P. & Ors.
379
take disciplinary action against the writ
petitioner. The rules that have been brought
in by amendment through a resolution of
the Board of Directors passed in their 177th
Meeting and notified by the Managing
Director of the Bridge Corporation through
his memo dated 27.10.2018, read:

"जनदेशक मण्डल की जदनांक 03/10-2018 को
सम्पन्न हुई 177वीं बैठक में शासकीय सेवकों के संबंध में
शासनादेश संख्या-01/2015/13/9/98/सा-1-2015 जद0
22-04-2015 के पैिा 19 एवं 20 लागू व्यवस्था के अनुसाि
सेतु जनगम में लागू आदशश आििण, अनुशासन एवं अपील
जनयमावली के अजन्तम जनयम 49 के उपिान्त 2 नये जनयमों का
जनम्नानुसाि प्राजवधान जनयम 50 एवं 51 को जोडे जाने की
स्वीकृजत प्रदान की गयी है:-

सेतु जनगम के काजमशकों के द्वािा
सेवाकाल
में
की
गयी
अजनयजमतता/कदािाि के जलए
उनकी सेवाजनवृजि के उपिान्त
अनुशासजनक कायशवाही के सम्बन्ध
में।
50-यजद जवभागीय जॉि की कायशवाही लजम्बत िहते
हुए आिोजपत काजमशक अजधवर्शता आयु प्राप्त कि
सेवाजनवृि हो जाता है को लजम्बत जॉब को इस
जनयमावली के तहत उसके सेवाजनवृि देयकों से जविीय
क्षजत की वसूली के जलए जािी िखा जा सकता है, पिन्तु
सेवाजनवृि काजमशक को दण्ड नहीं जदया जा सकता औि
न ही उक्त दण्ड के उद्देश्य से कायशवाही प्रािम्भ/ जािी
िखी जा सकती है।

51- यजद सेवाजनवृजि के उपिान्त कोई तथ्य सामने
आये तो सेवाजनवृजि के पश्चात् भी इस जनयमावली के
तहत कायशवाही की जा सकती है बशते जक जजस घटना
के संबंध में जॉि प्रािम्भ की जाय, जााँि किने की जतजथ
को उस घटना को 4 वर्श से अजधक समय न बीत िुका
हो।"

17. The writ petitioner retired from
service on 31.12.2013 and the charge-sheet
was issued on 02.12.2014. There is nothing in
the amended rules notified on 27.10.2018 and
framed in the meeting of the Board of
Directors of the Bridge Corporation to show
that these rules would have retrospective
operation. There is no hint about it in the
amended Rule 50 or 51 added to the Model
Conduct Discipline and Appeal Rules for the
Service of U.P. State Enterprises. The well
established cannon of statutory interpretation
is that all laws affecting substantive rights are
prospective in operation unless expressly
made retrospective. The amended Rules
confer a substantive right on the Bridge
Corporation
to
initiate
disciplinary
proceedings against a retired employee about
matters that fall within four years when
disciplinary proceedings are initiated. It
likewise affects the substantive right of an
employee to be insulated from initiation of
departmental proceedings once he has retired
and no longer in the employ of the Bridge
Corporation. Therefore, there is no basis to
hold that the amended Rules that have come
into effect from 27.10.2018, would have
retrospective operation and govern the rights
of the Bridge Corporation, vis-a-vis the writ
petitioner.

18. In the circumstances, we are of
opinion that disciplinary proceedings initiated
against the writ petitioner by the Bridge
Corporation on the basis of the impugned
charge-sheet are without jurisdiction.

19. For reasons added and slightly
different from those that have weighed with
the learned Single Judge, we concur in the
conclusions.

20. In the result, this appeal fails and is
dismissed. Costs easy.
----------
(2023) 5 ILRA 379
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.05.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 23192 of 2016

Annapurna ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
380 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Ram Kumar Singh

Counsel for the Respondents:
C.S.C., Aprajita Bansal Rohit Tri

A.
Service
Law
-
Compassionate
Appointment - 'Suitable post' - U.P.
Recruitment
of
Dependents
of
Government Servants (Dying in Harness)
Rules, 1974 - Appointment on "suitable
post" has to be considered considering the
status / post held by the deceased
employee
and
the
educational
qualification / eligibility criteria of the
person
to
be
offered
compassionate
appointment and that the offer is to be
made considering the post held by the
deceased employee and the suitability of
the post of the persons to whom the
compassionate
appointment
is
being
offered. (Para 10)

In the present case, the husband of the
petitioner was working on a class III post who
died in harness. Admittedly the petitioner has
got educational qualification of Master of Arts
but despite the proposal in her favour by the
respondent no. 3 on 16.08.2016 for being
given a class III post, she has been offered a
class IV post. Thus considering the law laid
down by Hon'ble the Apex Court in the case
of Premlata (infra) and the interpretation
given to the Rules 1974 it is apparent that the
offer
of appointment as given to the
petitioner on a class IV post cannot be
countenanced
in
any
manner
more
particularly
considering
her
educational
qualifications and the post held by her
husband. (Para 11)

Directions have been issued to consider the
claim of the petitioner for compassionate
appointment on a class III post considering the
educational qualification of the petitioner of
Master of Arts as well as the status of the post
held by her deceased husband which was a
class III post. (Para 12)

Writ petition disposed of. (E-4)

Precedent followed:
State of Uttar Pradesh & ors. Vs Premlata, 2022
(1) SCC 30 (Para 9)

Present petition challenges order dated
07.09.2016, passed by the Secretary,
State Election Commission, Lucknow, so
far as it relates to appointment of the
petitioner on class IV post.

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and Shri Rohit Tripathi, learned
Standing Counsel for the State-respondent.

2. The instant writ petition has been
filed praying for the following main reliefs:

"(i) A writ, order or direction in
the nature of Certiorari to quash the
impugned order dated 7.9.2016 passed by
the opposite party no. 2, so far as it relates
to appointment of the petitioner on class IV
post, contained as Annexure No.1 to this
writ petition.

(ii) A writ, order or direction in
the nature of Mandamus commanding the
opposite parties to provide compassionate
appointment to the petitioner on class III
post keeping in view her qualification as
well as government order dated 17.06.2014
issued by the State Government."

3. Learned counsel for the petitioner
submits that the husband of the petitioner
was a Junior Assistant who died in harness
on 15.06.2016. The petitioner being eligible
for compassionate appointment under the
provisions
of
U.P.
Recruitment
of
Dependants
of
Government
Servants
(Dying
in
Harness)
Rules,
1974
(hereinafter referred to as the Rules, 1974)
applied for compassionate appointment and
despite the respondent no. 3 having
proposed the compassionate appointment
of the petitioner on a class III post through
5 All. Annapurna Vs. State of U.P. & Ors.
381
an order dated 16.08.2016, a copy of which
is annexure 4 to the petition, she has been
offered appointment on a class IV post vide
order dated 07.09.2016, a copy of which is
annexure 1 to the petition.

4. Placing reliance on the words
"suitable post" as used in Rule 5 of the
Rules, 1974 the contention is that the said
Rules
provide
for
giving
of
compassionate appointment on a "suitable
post" in government service on a post
except the post which is within the
purview
of
U.P.
Public
Service
Commission provided the person fulfills
the educational qualification prescribed
for the post.

5. The argument is that as the
petitioner is a Master of Arts (MA) pass
lady and her husband was also working
on a class III post of Junior Assistant as
such the respondents have patently erred
in offering appointment on a class IV
post and as such the petitioner is entitled
for being given appointment on a
suitable class III post as per her
qualification and considering that the
husband of the petitioner was working
on a class III post.

6. On the other hand, Shri Rohit
Tripathi,
learned
counsel
for
the
respondents argues that in matter of
compassionate
appointment
a
person
cannot have a choice of post and thus once
the petitioner has already been offered
appointment
on
a
class
IV
post
consequently either she accepts the said
appointment or in case she refuses the
same, it would be deemed that she does
not
require
any
compassionate
appointment and there would not be any
occasion for giving her appointment on a
class III post as claimed by her.

7. Having heard learned counsel for
the parties and having perused the record
what emerges is that the petitioner is the
widow of a Junior Assistant who died in
harness on 15.06.2016. Thus it is apparent
that the petitioners' husband was working
on
a
class
III
post.
Despite
the
recommendation made by the respondent
no. 3 proposing the appointment of the
petitioner on a class III post in terms of
proposal dated 16.08.2016 the petitioner
has been offered appointment on a class IV
post through an order dated 07.09.2016. In
pursuance to the order of this Court dated
29.09.2016 whereby this Court had made
the petitioners' joining on a class IV post
subject to final outcome of the petition, the
petitioner has already submitted her joining
on the class IV post on 30.09.2016.

8. The issue in question is that when
the words used under the 1974 Rules is
"suitable post" and the petitioner is a
widow of a class III employee and has got
her educational qualification of Master of
Arts as to whether she can be offered
appointment on a class IV post or she has
to be offered appointment on a "suitable
post"?.

9. The issue is no longer res integra
having
been
considered
by
Hon'ble
Supreme Court in the case of the State of
Uttar Pradesh & others vs Premlata
2022 (1) SCC 30 wherein after considering
the provisions of 1974 Rules the Apex
Court has held as under:

"10.2 The Division Bench of the
High Court in the present case has
interpreted Rule 5 of Rules 1974 and has
held that ?suitable post? under Rule 5 of
the Rules 1974 would mean any post
suitable
to
the
qualification
of
the
candidate irrespective of the post held by
382 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased employee. The aforesaid
interpretation by the Division Bench of the
High Court is just opposite to the object
and purpose of granting the appointment
on compassionate ground. ?Suitable post?
has
to
be
considered,
considering
status/post held by the deceased employee
and
the
educational
qualification/eligibility criteria is required
to be considered, considering the post held
by the deceased employee and the
suitability of the post is required to be
considered vis a vis the post held by the
deceased employee, otherwise there shall
be no difference/distinction between the
appointment on compassionate ground
and the regular appointment. In a given
case it may happen that the dependent of
the deceased employee who has applied for
appointment on compassionate ground is
having the educational qualification of Class
II or Class I post and the deceased employee
was working on the post of Class / Grade IV
and/or lower than the post applied, in that
case the dependent/applicant cannot seek the
appointment on compassionate ground on the
higher post than what was held by the
deceased employee as a matter of right, on
the ground that he/she is eligible fulfilling the
eligibility criteria of such higher post. The
aforesaid shall be contrary to the object and
purpose of grant of appointment on
compassionate ground which as observed
hereinabove is to enable the family to tide
over the sudden crisis on the death of the
bread
earner.
As
observed
above,
appointment on compassionate ground is
provided
out
of
pure
humanitarian
consideration taking into consideration the
fact that some source of livelihood is provided
and family would be able to make both ends
meet."

10. From a perusal of the aforesaid
judgement in the case of Premlata (supra)
it emerges that Hon'ble the Apex Court has
considered the words "suitable post" and
has held that appointment on "suitable
post" has to be considered considering the
status / post held by the deceased employee
and
the
educational
qualification
/
eligibility criteria of the person to be
offered compassionate appointment and
that the offer is to be made considering the
post held by the deceased employee and the
suitability of the post of the persons to
whom the compassionate appointment is
being offered.

11. Being armed with the aforesaid
interpretation as given by Hon'ble the Apex
Court in the case of Premlata (supra) what
this Court finds is that admittedly the
husband of the petitioner was working on a
class III post who died in harness.
Admittedly
the
petitioner
has
got
educational qualification of Master of Arts
but despite the proposal in her favour by
the respondent no. 3 on 16.08.2016 for
being given a class III post, she has been
offered a class IV post.Thus considering the
law laid down by Hon'ble the Apex Court
in the case of Premlata (supra) and the
interpretation given to the Rules 1974 it is
apparent that the offer of appointment as
given to the petitioner on a class IV post
cannot be countenanced in any manner
more
particularly
considering
her
educational qualifications and the post held
by her husband.

12. Keeping in view the aforesaid
discussion, the writ petition is disposed of
directing the respondent no. 2 i.e. the
Secretary, State Election Commission,
Lucknow to consider the claim of the
petitioner for compassionate appointment
on a class III post considering the
educational qualification of the petitioner
of Master of Arts as well as the status of the
5 All. Ashraf Ali Vs. State of U.P. & Ors
383
post held by her deceased husband which
was a class III post.

13. Let such consideration be done within a
period of six weeks from the date of receipt
of certified copy of this order. Needless to
mention that appointment of the petitioner
on a class IV post in pursuance to the order
dated 07.09.2016 would be subject to the
orders which are passed by the respondent
no. 2 in this regard with a caveat that in
case the respondent no. 2 rejects the claim
of the petitioner she would still continue on
the class IV post on which she has been
appointed.
----------
(2023) 5 ILRA 383
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2023

BEFORE

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

Application U/S 482 No. 8171 of 2023

Ashraf Ali ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Umesh Prasad Singh, Sri Satyendra
Narayan Singh

Counsel for the Opposite Parties:
G.A., Sri Baleshwar Chaturvedi, Sri Mata
Prasad

A. Criminal Law - Electricity Act, 2003 -
Sections 135 & 151 - Theft of electricity -
Discovery of a direct line drawn from the
100 KVA transformer to the low-tension
line - Proviso was inserted to S. 151 vide
Amendment Act No. 26 of 2007 making
offence u/s 135 as an cognizable offence
-
Proceeding
challenged
-
Held,
amendment to Section 151 is clarificatory
in nature and action could be taken on
complaints that were pending before the
Amending Act of 2007 came into force,
treating them to be cognizable cases -
Satyendra Rai's case relied upon. (8 and
9)

B. Interpretation of Statute - Insertion of
new
proviso
to
Section
151
vide
Amendment Act of 2007 - Nature of
amendment - Relevance - Clarificatory
nature
-
Effect
-
Applicability
of
Amendment - Whether have prospective
effect
or
retrospective
-
Held,
the
amendment is clarificatory in nature, and
therefore,
retrospective
-
Amended
provisions brought vide Act No. 26 of 2007
would apply with retrospective effect and
not prospectively. (Para 11 and 12)

Application rejected. (E-1)

List of Cases cited:

1. Mustaq alias Mustafa Vs St. of U.P. & ors.;
2006 SCC OnLine All 1430 : (2006) 6 All LJ 257

2. U.O.I.Vs Mustaq @ Mustafa & ors.; (2016) 13
SCC 398

3. Assistant Electrical Engineer Vs Satyendra Rai
& anr.; (2014) 4 SCC 513

4. Vishal Agarwal & anr. Vs Chhatisgarh
Electricity Board & anr.; (2014) 3 SCC 696

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

1. Heard Mr. Satyendra Narayan
Singh, learned Counsel for the applicant
and Mr. Mata Prasad, Advocate holding
brief of Mr. Baleshwar Chaturvedi, learned
Counsel appearing for respondents nos. 3
and 4 and Mr. D.K. Srivastava, learned
A.G.A. appearing on behalf of the State.

2. This application has been filed,
seeking to quash the proceedings in
Criminal Case No. 142 of 2005, State v.
Ashraf Ali, under Section 135 of the