# Anurag Kumar Gupta v. U.P. Sahkari Gramya Vikas Bank Ltd. & Anr

- **Citation:** (2023) 8 ILRA 1394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-24
- **Case number:** Writ-A No. 1994 of 2009
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anurag-kumar-gupta-v-u-p-sahkari-gramya-vikas-bank-ltd-anr-50540
- **Pages:** 16

## Headnote

Civil Law - Constitution of India,1950 -
Articles 14 & 16 - U.P. Co-operative
Societies Employees Service Regulations,
1975, Regulation 104 - Compassionate
Appointment - Civil Death - Disciplinary
Proceedings - Impugned dismissal order
dated 31.08.2004 quashed - Petitioner
entitled
to
consideration
for
compassionate appointment.

Held: The petitioner, legal heir of an employee
of U.P. Sahkari Gramya Vikas Bank Ltd., whose
civil death was declared on 30.04.2008, is
entitled to consideration for compassionate
appointment under Regulation 104 of the U.P.
Co-operative
Societies
Employees
Service
Regulations, 1975. The impugned dismissal
order dated 31.08.2004, passed after the
employee's disappearance on 27.01.1997, is a
nullity as the respondents were aware of the
employee's absence and failed to serve the
inquiry report or show cause notice properly.
The disciplinary proceedings, initiated with
retrospective effect, were not in compliance
with the court's earlier order dated 01.09.1995,
which quashed the prior dismissal order dated
08.06.1995 and permitted a fresh inquiry from
the stage of error. The respondents' delay in
considering the compassionate appointment
application, despite repeated representations,
frustrates the policy of providing immediate
financial relief to the deceased employee's
family, violating principles of fairness and
reasonableness under Articles 14 and 16. The
petitioner's claim cannot be denied on frivolous
grounds, such as the employee's alleged
dismissal post-disappearance. The respondents
are
directed
to
consider
the
petitioner's
application
for
compassionate
appointment
within eight weeks, with benefits accruing from
the date of appointment.

Case Law Discussed:

## Text

_Characters 0–39,850 of 51,691. This is a partial read: ask again with offset=39850 for what follows._

1394 INDIAN LAW REPORTS ALLAHABAD SERIES
to the petitioners, except the one discussed
above, it will be futile to issue direction to
the State Government to reconsider the
case of the petitioners for their absorption
in service. In this view the writ petition is
disposed of with the direction to the Staterespondents to treat the petitioners to be
absorbed employees of the U.P. Civil
Secretariat on a suitable post in terms of the
notified order dated 20.12.2011 and to pay
them their salary of their respective posts.
All the petitioners shall be allowed to join
on
suitable
posts
forthwith
in
the
Department and they shall be allowed to
continue in service till they attain the age of
superannuation at the age of 60 years and
be also paid salary.

The compliance of this order
shall be ensured by the concerned Staterespondents within a period of one month
from the date of production of certified
copy of this judgment and order.
----------
(2023) 8 ILRA 1394
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 1994 of 2009

Anurag Kumar Gupta ...Petitioner
Versus
U.P. Sahkari Gramya Vikas Bank Ltd. &
Anr. ...Respondents

Counsel for the Petitioner:
Sri Y.S. Lohit

Counsel for the Respondents:
Sri B.L. Verma, Sri Balram Yadav

Civil Law - Constitution of India,1950 -
Articles 14 & 16 - U.P. Co-operative
Societies Employees Service Regulations,
1975, Regulation 104 - Compassionate
Appointment - Civil Death - Disciplinary
Proceedings - Impugned dismissal order
dated 31.08.2004 quashed - Petitioner
entitled
to
consideration
for
compassionate appointment.

Held: The petitioner, legal heir of an employee
of U.P. Sahkari Gramya Vikas Bank Ltd., whose
civil death was declared on 30.04.2008, is
entitled to consideration for compassionate
appointment under Regulation 104 of the U.P.
Co-operative
Societies
Employees
Service
Regulations, 1975. The impugned dismissal
order dated 31.08.2004, passed after the
employee's disappearance on 27.01.1997, is a
nullity as the respondents were aware of the
employee's absence and failed to serve the
inquiry report or show cause notice properly.
The disciplinary proceedings, initiated with
retrospective effect, were not in compliance
with the court's earlier order dated 01.09.1995,
which quashed the prior dismissal order dated
08.06.1995 and permitted a fresh inquiry from
the stage of error. The respondents' delay in
considering the compassionate appointment
application, despite repeated representations,
frustrates the policy of providing immediate
financial relief to the deceased employee's
family, violating principles of fairness and
reasonableness under Articles 14 and 16. The
petitioner's claim cannot be denied on frivolous
grounds, such as the employee's alleged
dismissal post-disappearance. The respondents
are
directed
to
consider
the
petitioner's
application
for
compassionate
appointment
within eight weeks, with benefits accruing from
the date of appointment.

Case Law Discussed:

1. Ashwani Kumar Singh Vs U.P. Public Service
Commission & ors., (2003) 11 SCC 584

2. Malaya Nanda Sethy Vs St. of Orissa & ors.,
2022 SCC OnLine SC 684

3. Fertilizers and Chemicals Travancore Ltd. &
ors. Vs Anusree K.B., 2022 LiveLaw (SC) 819

Order: Impugned order dated 31.08.2004
quashed. Respondents directed to consider the
8 All. Anurag Kumar Gupta Vs. U.P. Sahkari Gramya Vikas Bank Ltd. & Anr.
1395
petitioner's
application
for
compassionate
appointment under Regulation 104 of the 1975
Regulations within eight weeks from the
production of a certified copy of the order.
Petitioner entitled to benefits from the date of
appointment. No order as to costs.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Y.S. Lohit, learned
counsel for the petitioner and Sri Balram
Yadav,
learned
counsel
for
the
respondent(s).

2. By means of present writ petition,
the petitioner has prayed for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents to
provide compassionate appointment to the
petitioner
as
per
his
educational
qualifications under the provisions of
Regulation 104 of U.P. Co-operative
Societies Employees Service Regulations,
1975 in place of his father, whose civil
death has been declared on 30.04.2008 by
the competent court of law with a further
prayer to issue a writ, order or direction in
the nature of certiorari quashing the
impugned
order
dated
31.08.2004
contained as Annexure-19 to the writ
petition with a further prayer to issue a
writ, order or direction in the nature of
mandamus commanding the respondents to
treat the petitioner's father as reinstated in
service till the date of his civil death i.e. on
30.04.2008 as declared by competent
authority of law and to issue a follow up
direction to the respondents to pay the
arrears of salary and allowances and other
consequential benefits to his legal heirs.

3. Brief facts giving rise to the present
writ petition are as under:

Sr. No.
Relevant Facts of the Case
a.
Father of the petitioner was
appointed on 03.09.1971 on the
post of Lekha Lipik / Ankik i.e.
Account Clerk i.e. Class-III
Post at Bansedeeh Branch of
U.P. Sahkari Gramya Vikas
Bank Ltd. (for short, "the
Bank"). Thereafter, he was
posted as Head Accountant at
10, Mall Avenue, Lucknow
Branch.
b.
He
was
placed
under
suspension vide order dated
01.03.1990 on 02.03.1990 by
the District Manager of the
Bank.
Later
on,
he
was
dismissed from service vide
order dated 08.06.1995.
c.
The said order was challenged
in Writ Petition No.2891 (S/S)
of 1995 before this Court,
wherein aforesaid order of
dismissal dated 08.06.1995 was
quashed
vide
order
dated
01.09.1995 imposing cost of
Rs.1000/- upon the respondents
leaving it open to pass a fresh
order strictly in accordance
with law.
d.
On 27.01.1997, father of the
petitioner
went
to
the
Headquarter of the Bank at 10,
Mall Avenue, Lucknow to
receive
the
subsistence
allowance but he did not return
back to home. Cousin of father
of the petitioner - i.e. Sri Vinod
Kumar Gupta lodged a first
information report (for short,
"FIR") to the this effect in
Police
Station
Hussainganj,
District Lucknow but neither
FIR was lodged nor anything
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
was
done
in
furtherance
thereof. Thereafter, the FIR was
lodged by competent Court of
Law
under
Section 156(3)
Cr.P.C.
e.
An advertisement to this effect
was
also
telecasted
on
Doordarshan in furtherance of
application
on
prescribed
format on 29.03.1997, which
was broadcasted on All India
Radio
in
furtherance
of
application
on
prescribed
format
dated
09.07.1997
submitted
by
petitioner's
father's
cousin
Sri
Vinod
Kumar Gupta.
f.
An application was sent by
petitioner's mother for payment
of amount payable to her
husband as well as follow up
payment to be made to the heirs
on 13.03.2000, whereupon the
General
Manager
(Administration) of the Bank
asked for the copy of FIR, the
certificate of the police and an
indemnity bond.
g.
In pursuance thereof, all the
documents were submitted by
mother of the petitioner, which
was followed by a reminder
sent in the month of November,
2011.
h.
In Suit No.66/2007, the Civil
Judge,
(Junior
Division),
Muhammadabad,
District
Ghazipur gave a judgment on
30.04.2008 declaring the civil
death of father of the petitioner
by a decree dated 14.05.2008.
i.
On the basis of said judgment
and
decree,
Nagar
Palika
Parishad,
Muhammadabad,
District Ghazipur issued the
death certificate on 02.06.2008
mentioning
civil
death
of
petitioner's
father
on
30.04.2008.
j.
Thereafter,
the
petitioner
preferred several applications
requesting for appointment on
compassionate ground but no
heed was paid to his requests.
k.
On
07.04.2009,
this
Court
hearing the writ petition for
appointment on compassionate
ground made query as to
whether the entitlement for
compassionate
appointment
may subsist on the basis of date
of declaration of civil death of
petitioner's father by learned
Civil Judge or this entitlement
will stand mitigated in view of
the fact that he and other family
members subsisted for a long
period since disappearance of
his father - Lt. Sri Jai Prakash
Narain
Gupta
i.e.
since
27.01.1997. In reply, learned
counsel for the respondents
passed a copy of the order
dated 31.08.2004 submitting
that petitioner's father was
dismissed from service vide
order
dated
31.08.2004,
therefore,
there
was
no
occasion
to
consider
the
appointment under Regulation
104 of the Regulations.
l.
The order dated 31.08.2004
states
that
Special
Appeal
No.258 (S/B) of 1995 was
dismissed on 05.07.2001 with
8 All. Anurag Kumar Gupta Vs. U.P. Sahkari Gramya Vikas Bank Ltd. & Anr.
1397
liberty to hold fresh inquiry
from
the
stage
of
error
committed
in
disciplinary
proceedings
but
the
headquarters
started
disciplinary
proceedings
by
suspending the petitioner again
pursuant
to
order
dated
08.11.1995 and the Regional
Manager, Lakhimpur Kheri was
appointed as Enquiry officer to
hold
the
disciplinary
proceeding vide order dated
01.01.2002, who fixed 3 dates
but Sri Jai Prakash Narain
Gupta did not come and by last
opportunity,
he
got
a
notification
/
information
published in local daily news
paper on 11.03.2004 requiring
to
submit
explanation,
statement
and
documents
within 10 days and as within
ten days he has not presented
himself, the inquiry officer
submitted the enquiry report on
the basis of documents and
witnesses.
m.
While serving copy of order
dated
31.08.2004
on
08.05.2009, show cause notice
and enquiry report was not
served to the petitioner nor the
same has been served to him or
his family member till date.
n.
Being aggrieved by the act and
action of the respondents in not
grant
appointment
on
compassionate
ground,
the
present writ petition has been
filed before this Court.

4. Submission of learned counsel for
the petitioner is that there was no occasion to
suspend petitioner's father, as it was not
covered under fresh inquiry from the stage of
error committed in disciplinary proceeding
that too with retrospective effect of about six
years. He submitted that the enquiry officer's
hasty action is apparent from fixing three
dates within 37 days and again only 10 day's
time from publication of notification in daily
newspapers. It is also apparent from General
Manager's letter dated 13.03.2000 that
petitioner's father disappeared on 27.01.1997
and her mother claimed appointment in the
vent of disappearance of her husband.

5. He further submitted that the
respondents issued fabricated show cause
notice dated 28.01.2004 after knowing the
fact that recipient is not available. He
submitted that the inquiry report was
prepared mere as a paper work to justify the
impugned order, which is apparently perverse
in nature as it does not deal the statements of
any witnesses or the findings arrived at in this
regard.

6. He next submitted that the whole
exercise was done by the respondents with
ulterior motive to frustrate the claim of
petitioner's mother.

7. He further submitted that claim of
petitioner's mother was not considered even
after declaration of civil death of petitioner's
father by judgment dated 30.04.2008 and
decree dated 14.05.2008 issued by the Civil
Judge (Junior Division) and the death
certificate issued by the Nagar Palika
Parishad, Muhammadabad, District Ghazipur
on 02.06.2008 mentioning the civil death of
petitioner's father to be 30.04.2008.

8. He submitted that order of
dismissal of service of petitioner's father
dated 08.06.1995 was quashed by this
Court in Writ Petition No.2891 (S/S) of
1398 INDIAN LAW REPORTS ALLAHABAD SERIES
1995 vide order dated 01.09.1995 imposing
cost of Rs.1000/- upon the respondents
leaving it open to pass a fresh order strictly
in accordance with law.

9. He further submitted that the order
dated 01.09.1995 was subject matter of
challenge in Special Appeal No.258 (S/B)
of 1995, which was dismissed vide order
dated 05.07.2001 with liberty to hold fresh
inquiry from the stage of error committed
in
disciplinary
proceedings
but
the
respondents
started
disciplinary
proceedings by suspending the petitioner
again pursuant to order dated 08.11.1995.

10. He next submitted that all the
exercise was done by the respondents only
to satisfy the statutory requirement, which
was missing while passing of judgment and
order dated 01.09.1995 and to refer the
matter to U.P. Co-operative Institutional
Service Board, Lucknow.

11. He lastly submitted that the
petitioner being legal heir of his father i.e.
Lt. Sri Jai Prakash Narain Gupta is entitled
for appointment on compassionate ground
under Regulation 104 of U.P. Co-operative
Societies Employees Service Regulations,
1975 and other consequential benefits. In
support of his submissions, he placed
reliance upon following judgments:

a) Ashwani Kumar Singh Vs.
U.P. Public Commission and others;
(2003) 11 SCC 584.

b) Malaya Nanda Sethy Vs.
State of Orissa and others; 2022 SCC
OnLine SC 684.

12. On the other hand, learned
counsel for the respondent(s) submitted that
father of the petitioner - Lt. Jai Prakash
Narayan Gupta was working in the District
Office of respondents as Accountant and
committed
following
irregularities
for
which he got suspended:

a) attending the office in drunken
position,

b)
not
taking
interest
in
functioning of the bank,

c) absenting from duties without
leave,

d) not performing duties as per
schedule,

e)
misuse
of
government
property,

f)
embezzlement
of
public
money.

13. He submitted that during enquiry,
the aforesaid irregularities were found
proved against him and as a result he was
dismissed from service vide order dated
08.06.1995, against which father of the
petitioner preferred Writ Petition No.2891
(S/S) of 1995 before this Court and the
order dated 08.06.1995 was quashed by this
Court vide order dated 01.09.1995 with a
liberty to the respondents to pass a fresh
order in accordance with law. Against the
said order, respondents filed Special
Appeal No.258 (S/B) of 1995, which was
dismissed vide order dated 05.07.2001
leaving it open to hold fresh inquiry in
accordance with law from the stage the
fault has occurred. Thereafter, the inquiry
proceeding was again started and father of
the petitioner was served with inquiry
report and related documents but he did not
contested his case and as a result thereof,
on the basis of available evidences, father
8 All. Anurag Kumar Gupta Vs. U.P. Sahkari Gramya Vikas Bank Ltd. & Anr.
1399
of the petitioner was dismissed from
service vide order dated 31.08.2004. In the
meantime, petitioner's father got missed
and dead and the petitioner has filed the
present
writ
petition
for
grant
of
appointment on compassionate ground,
however, the request is not acceptable in
view of the fact that his father was
dismissed from service w.e.f. 31.08.2004
and the petitioner is not entitled for any
relief by this Court. In support of his
submissions, he placed reliance upon a
judgment in the case of Fertilizers and
Chemicals Travancore Ltd. & Ors. Vs.
Anusree K.B.; 2022 LiveLaw (SC) 819 :
Civil Appeal No.6958 of 2022, order
dated 30.09.2022.

14. In reply to submissions advanced
by learned counsel for the respondents,
learned counsel for the petitioner on the
basis of rejoinder affidavit submitted that
as respondents were aware about missing
of petitioner's father, there was no occasion
to serve the inquiry report upon him and
the words "but he did not contest his case",
as narrated in paragraph-9 of the counter
affidavit, is sufficient in itself to prove that
petitioner's father was not present in the
disciplinary proceeding, therefore, the
impugned order dated 31.08.2004 is a
nullity in the eyes of law and is not
sustainable.

15. He further submitted that the special
appeal preferred by the respondents was
dismissed providing liberty to hold fresh
inquiry from the stage of error occurred in the
disciplinary proceeding, however, the said
liberty was obtained by the respondents by
concealment of relevant fact that father of the
petitioner was missing since year 1997 and in
paragraph-9
of
counter
affidavit,
the
respondents have deliberately mentioned the
word "in the meantime" in lieu of "since the
year 1997" i.e. the year from which the
petitioner's father was missing. As such, after
dismissal of special appeal, father of the
petitioner stood reinstated in service for all
practical purposes and the petitioner being his
legal heir, is entitled for the reliefs, as prayed
in the writ petition.

16.

In
reply
to
the
aforesaid
submissions,
learned
counsel
for
the
respondents submitted that since father of the
petitioner did not appear on the dates fixed in
the disciplinary proceeding, the enquiry
officer submitted the enquiry report on the
basis of documents present before him.

17. He further submitted that father of
the petitioner was under suspension during
earlier disciplinary proceeding and after
quashing of said order, in continuation of the
earlier enquiry, he was again continued under
suspension
for
further
fresh
enquiry,
therefore, there is no illegality in the
impugned order and the same is just and
valid.

18. He next submitted that after
submission of enquiry report by the enquiry
officer, a show cause notice was issued to
father of the petitioner as per provisions of
Regulation 84(iii) of U.P. Co-operative
Societies Employees Service Regulations,
1976 as well as Rule 73(3) of U.P. Rajya
Sahkar Gram Vikas Bank Employees Srvice
Rules, 1976 and when the said notice was
returned by the petitioner, a press note was
issued in daily newspaper, namely, Hindustan
for publication, which was published on
11.03.2004 and after publication of show
cause notice, it was treated that the same has
been served upon him and thereafter, the
impugned order of dismissal has been passed.

19. He submitted that the impugned
order
dated
31.08.2004
was
passed
following the procedure prescribed under
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
regulations and rules of the respondent -
Bank, as the charge against the petitioner
was found fully proved against him. He
also submitted that neither petitioner, nor
his mother or any other family member
appeared before the enquiry officer to
disapprove the charges levelled against
him.

20. He submitted that if the petitioner
and his mother were known that Lt. Sri Jai
Prakash Narayan Gupta was not alive, they
failed to discharge their legal duties and
obligations and thus, the writ petition being
devoid of merit is liable to be dismissed
and since father of the petitioner was
dismissed from service, the claim of the
petitioner
for
appointment
on
compassionate ground is not tenable in the
eyes of law.

21.

In
reply
to
the
aforesaid
submissions advanced by learned counsel for
the respondents, learned counsel for the
petitioner submitted that though the petitioner
and his mother failed to discharge their legal
duty and obligations, there was no specific
denial in the counter affidavit to the amended
writ petition dated 21.11.2016, wherein it has
been mentioned that the General Manager,
U.P. Sahkari Gramya Vikas Bank Ltd.,
Lucknow asked petitioner's mother vide letter
dated 13.03.2000 to place the F.I.R., police
certificate and nominee / dependents name
for the purpose of payment of applicable
benefits. Meaning thereby, he was well aware
about the missing and death of petitioner's
father.

22. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record as well
as the case laws cited by learned counsel
for the parties and the rules applicable to
this case.

23. To resolve the controversy
involved in the matter, relevant rules and
paragraphs of the judgments relied upon by
learned counsel for the parties are being
quoted below:

• Regulation 104 of U.P. Cooperative Societies Employees Service
Regulations, 1975:

(i) In case an employee of cooperative society, who is either permanent
in his appointment or if temporary, who
has been recruited in accordance with the
provisions of the Uttar Pradesh Cooperative Societies Employees Service
Regulations, 1975 and has been holding his
post for a minimum continuous period of
three years dies in harness after the
commencement of these Regulations, one
member of his family, who is not already
employed under the Central Government or
a State Government or a Corporation or an
undertaking owned or controlled by the
Central
Government
or
a
State
Government,
shall
on
making
an
application for the purpose, be given a
suitable employment under the society
concerned provided such member possess
the minimum educational qualifications
prescribed for the post and is otherwise fit
for appointment thereto. Such employment
shall be given to the said member without
delay and as far as possible, under the
same society in which the deceased servant
was employed at the time of his death.

(ii) ....................................

(iii) ...................................

(iv)
Notwithstanding
anything
contained in clause (i) of Regulation 15, it
shall be open to the Board to whom the
case shall be referred by the appointing
society, to dispense with the procedural
8 All. Anurag Kumar Gupta Vs. U.P. Sahkari Gramya Vikas Bank Ltd. & Anr.
1401
requirements of selection, such as written
test or interview by a selection committee,
and accord its approval to the appointment
of the candidate after satisfying itself that
the candidate will be able to maintain the
minimum standard of efficiency expected of
him for the post in question, and that the
requirements of Regulation 9 and 14 are
fulfilled.

(v)
Where
more
than
one
members of the family of the deceased
employee seek employment under this
regulation, the Board shall decide, keeping
in view the overall interest of the family of
the deceased employee, particularly the
widow and the minor members thereof,
which of the members should be given
employment under the provisions of this
regulation. The decision of the Board in the
matter shall be final.

Note - The family, for purposes of
this regulation, shall include the wife /
husband, sons and unmarried or widowed
daughters of the deceased employee".

• Judgments relied upon by
learned counsel for the petitioner:

a)
Ashwani
Kumar
Singh
(Supra):

10. Courts should not place
reliance on decisions without discussing as
to how the factual situation fits in with the
fact situation of the decision on which
reliance is placed. Observations of Courts
are not to be read as Euclid's theorems nor
as
provisions
of
the
statute.
These
observations must be read in the context in
which they appear. Judgments of Courts
are no to be construed as statutes. To
interpret words, phrases and provisions of
statute, it may become necessary for Judges
to embark into lengthy discussions, but the
discussion is meant to explain and not to
define. Judges interpret statutes, they do
not interpret judgments. They interpret
words of statutes; their words are not to be
interpreted as statutes. In London Graving
Dock Co. Ltd. v. Horton (AC at 9.761)
Lord MeDermott observed: (All ER p. 14
C-D)

"The matter cannot, of course, be
settled merely by treating the ipsissima
vertra of Willes, J, as though they were
part of an /- ct of parliament and applying
the rules of interpretation appropriate
thereto. This is not to detract from the great
weight to be given to the language actually
used by that most distinguished Judge......"

11. In Home Officer V. Dorset
Yacht Co., Lord Reid said, "Lord Atkin's
speech.........is not to be treated as if it was
a
statute
definition.
It
will
require
qualification in new circumstances.(All ER
p. 297 g-h). Megarry, J in Shepherd Homes
Ltd. v. Sandham, (No. 2) observed: (All ER
p. 1274 d-e) "One must not, of course,
construe even a reserved judgment of
Russell, L.J. as if it were an Act of
Parliament." In Herrington v. British
Railways Board, Lord Morris said : (All
ER p. 761 c)

"There is always peril in treating
the words of a speech or judgment as
though they are words in legislative
enactment, and it is to be remembered that
judicial utterances made in the setting of
the facts of a particular case."

b)
Malaya
Nanda
Sethy
(Supra):

15.
In
view
of
the
above
discussion and for the reasons stated
1402 INDIAN LAW REPORTS ALLAHABAD SERIES
above, the impugned judgment and order
passed by the High Court is hereby
quashed and set aside. The respondents are
directed to consider the case of the
appellant
for
appointment
on
compassionate grounds under the 1990
Rules as per his original application made
in July, 2010 and if he is otherwise found
eligible to appoint him on the post of
Junior Clerk. The aforesaid exercise shall
be completed within a period of four weeks
from today. However, it is observed that the
appellant shall be entitled to all the benefits
from the date of his appointment only. The
present appeal is accordingly allowed.
However, in the facts and circumstances of
the case, there shall be no order as to costs.

16. Before parting with the
present order, we are constrained to
observe that considering the object and
purpose of appointment on compassionate
grounds, i.e., a family of a deceased
employee may be placed in a position of
financial hardship upon the untimely death
of the employee while in service and the
basis or policy is immediacy in rendering
of financial assistance to the family of the
deceased consequent upon his untimely
death, the authorities must consider and
decide such applications for appointment
on compassionate grounds as per the
policy prevalent, at the earliest, but not
beyond a period of sic months from the
date of submission of such completed
applications.

17. We are constrained to direct as
above as we have found that in several cases,
applications
for
appointment
on
compassionate grounds are not attended in
time and are kept pending for years together.
As a result, the applicants in several cases
have to approach the concerned High Courts
seeking a writ of Mandamus for the
consideration of their applications. Even
after such a direction is issued, frivolous or
vexatious reasons are given for rejecting the
applications. Once again, the applicants have
to challenge the order of rejection before the
High Court which leads to pendency of
litigation and passage of time, leaving the
family of the employee who dies in harness in
the lurch and in financial difficulty. Further,
for reasons best known to the authorities and
on irrelevant consideration, applications
made for compassionate appointment are
rejected. After several years or are not
considered at all as in the instant case.

18. If the object and purpose of
appointment on compassionate grounds as
envisaged under the relevant policies or the
rules have to be achieved then it is just and
necessary
that
such
applications
are
considered well in time and not in a tardy
way. We have come across cases where for
nearly
two
decades
the
controversy
regarding
the
application
made
for
compassionate appointment is not resolved.
This consequently leads to the frustration
of
the
very
policy
of
granting
compassionate appointment on the death of
the employee while in service. We have,
therefore, directed that such applications
must be considered at an earliest point of
time. The consideration must be fair,
reasonable
and
based
on
relevant
consideration. The application cannot be
rejected on the basis of frivolous and for
reasons extraneous to the facts of the case.
Then and then only the object and purpose
of appointment on compassionate grounds
can be achieved."

• Judgment relied upon by
learned counsel for the respondent(s) :

• Fertilizers and Chemicals
Travancore Ltd. & Ors. (Supra):
8 All. Anurag Kumar Gupta Vs. U.P. Sahkari Gramya Vikas Bank Ltd. & Anr.
1403

"9.
.....................................................

9.1 Applying the law laid down
by this Court in the aforesaid decisions to
the facts of the case on hand and
considering
the
observations
made
hereinabove and the object and purpose for
which the appointment on compassionate
ground is provided, the respondent shall
not be entitled to the appointment on
compassionate ground on the death of her
father, who died in the year 1995. After a
period of 24 years from the death of the
deceased employee, the respondent shall
not be entitled to the appointment on
compassionate
ground.
If
such
an
appointment is made now and/or after a
period of 14/24 years, the same shall be
against the object and purpose for which
the appointment on compassionate ground
is provided.

9.2 Under the circumstances,
both, the learned Single Judge as well as
the Division Bench of the High Court have
committed a serious error in directing the
appellants to reconsider the case of the
respondent
for
appointment
on
compassionate ground. The impugned
judgment and order passed by the High
Court is unsustainable."

24.

On
perusal
of
aforesaid
judgments, in the case of Ashwani Kumar
Singh (Supra), it is apparent that the
appellants before the Hon'ble Apex Court
appeared at Combined State Services
Examination in 1987 for appointment as
Treasury Officer / Accounts Officer /
Assistant Accounts Officer. On the basis of
requisition sent by the State Government
for 40 vacancies, a merit list was prepared
in 1989. In the merit list, appellant AK was
place at serial No.52 while appellant BN
was placed much below. Appellant AK was
later on appointed as Assistant Accounts
Officer when some of the selected
candidates did not join the service.

25. In 1992, writ petitions were filed
by the appellants on the ground that
vacancies which arose on account of
selected candidates not joining should have
been filled up from the merit list and that
having not been done, the appointments
made subsequently were illegal. The claim
was resisted by the State and the
Commission who took the stand that there
was no waiting list as such and the
vacancies were carried forward to the
subsequent period as required in law and
persons had already been appointed on the
basis of subsequent examination. The
petitions were rejected by the High Court
and hence the appeal was filed before
Hon'ble Supreme Court of India. While
dismissing the appeal, Hon'ble Apex Court
has held that it is not a rule of universal
application that whenever vacancy exists,
persons who are in the merit list perforce
have to be appointed. Much would depend
upon the statutory provisions governing the
field. Jai Narain Case, (1996) 1 SCC 332
on which reliance has been place by the
appellants was rendered in a different
factual and legal background, and related to
non-appointment of persons belonging to
the reserved category.

(i)
Court
should
not
place
reliance on decisions without discussing as
to how the factual situation fits in with the
fact situation of the decision on which
reliance is placed. Observations of courts
are not to be read as Euclid's theorems nor
as
provisions
of
the
statute.
These
observations must be read in the context in
which they appear. Judgments of courts are
not to be construed as statutes. To interpret
1404 INDIAN LAW REPORTS ALLAHABAD SERIES
words, phrases and provisions of a statute,
it may become necessary for judges to
embark upon lengthy discussions, but the
discussion is meant to explain and not to
define. Judges interpret statutes, they do
not interpret judgments. They interpret
words of statutes; their words are not to be
interpreted as statutes. In circumstantial
flexibility, one additional or different fact
may make a world of difference between
conclusions in two cases. Disposal of cases
by blindly placing reliance on a decision is
not proper.

(ii) It is on record that a policy
decision was taken to appoint candidates who
had opted for Treasury Officer / Accounts
Officer if their names were included in the
first 40 of the merit list. Admittedly, the
appellants were placed below in the merit list.
Besides, the plea that there is no logic for
such fixation is also without substance. If the
employer fixes a cut-off position, same is not
to be lightly tinkered with unless it is totally
irrational or tainted with mala fides.
Employer in its wisdom may consider a
particular range of selection to be
appropriate. It has not been shown as to
how the fixation is irrational, much less
mala fide. Additionally, it is noticed that
the unfilled posts were carried forward to
the next year and have been filled up on
the basis of selection made by the
Commission. Accepting the prayer of the
appellants would mean that the position
which has assumed a sort of finality for
more than a declared would be unsettled.
Persons who have been appointed on the
basis of the subsequent examination have
to give way to appellant AK. Though
they had been impleaded but did not
appear, it does not mean that something
which is not permissible in law has to be
done. It would not be fair to disturb the
prevailing position.

(iii) AK had been subsequently
promoted as Accounts Officer. But he
cannot claim seniority over those who were
subsequently appointed since he had been
promoted later on. In the absence of any
statutory prescription, persons who has
been appointed to the higher posts earlier
would be logically senior to him.

26. In the case of Malaya Nanda
Sethy (Supra), father of the appellant was
working as an Assistant Sub - Inspector in
Excise Department. He passed away on
02.01.2010 while in service. On the death
of his father, the appellant applied for his
appointment
as
a
Junior
Clerk
on
compassionate ground under the Orissa
Civil Service (Rehabilitation Assistance)
Rules, 1990 in July, 2010. It was the case
on behalf of the appellant that his mother
was unable to undertake a government job
due to her medical condition. The said
application was sent to the office of the
Excise Commissioner, Orissa, Cuttack vide
letter dated 03.08.2011. Thereafter, the said
application
was
forwarded
to
teh
Additional Secretary to the Government,
Excise Department on 21.09.2011. The said
application was not attended to by the
Excise Department for a considerable
period of five years. After a period of five
years, the Additional Secretary vide letter
/communication dated 09.09.2016 asked
the Collector, Ganjam to furnish a fresh
report regarding the financial condition of
the family of the deceased government
servant. Simultaneously, a report was also
called for from CDMO, Ganjam to place
the matter of mother of the appellant before
the MEdical Board for proper examination
to ascertain whether her inability to
perform the government job continues. The
CDMO, Ganjam constituted a Medical
Board and examined the mother of the
appellant and furnished a report to the
8 All. Anurag Kumar Gupta Vs. U.P. Sahkari Gramya Vikas Bank Ltd. & Anr.
1405
Additional Secretary on 01.11.2016 stating
that she was unfit for government job. The
CDMO, Ganjam furnished another report
dated 06.02.2017 to the same effect. It
appears that thereafter a report from
Tehsildar, Bellaguntha, which is the native
place of the appellant, was also called for to
ascertain financial condition and the
Tehsildar submitted its report vide letter
dated 28.10.2017 stating that the family
income of the appellant from all sources
does not exceed ceiling of Rs.72,000/- per
annum.

(i)
Despite
the
above,
the
application of the appellant herein for
appointment on compassionate ground was
kept
pending
under
consideration.
However,
before
any
further
order
appointing the appellant on compassionate
ground under the 1990 Rules came to be
passed, the 1990 Rules came to be replaced
by the new Rules, namely, Odisha Civil
Services (Rehabilitation Assistance) Rules,
2020,
issued
vide
notification
dated
17.02.2020. Under the 2020 Rules, one
family member of deceased government
servant
would
be
appointed
on
compassionate grounds to "Group D" base
level post. Therefore, the application of the
appellant being sent to the Collector for
taking necessary action under the 2020
Rules by the office of the Excise
Commissioner, Odisha, vide communicated
dated 26.04.2021.

(ii)
Feeling
aggrieved
and
dissatisfied with communication dated
26.04.2021, by which case of the appellant
was directed to be considered under 2020
Rules, the appellant preferred a writ
petition before the High Court. Before the
High Court, it was specific case of the
appellant that the policy prevalent at the
time
when
teh
application
for
compassionate ground was made, shall be
applicable and not the subsequent scheme
prevalent at the time of deciding the
application. A number of decisions of
Hon'ble Apex Court were relied upon.
However, by the impugned judgment and
order and relying upon and / or considering
the decision in the case of N.C. Santosh Vs.
State of Karnataka; (2020) 7 SCC 617, the
High Court has dismissed the said writ
petition by observing that the claim should
be considered as per the amended rules that
were prevalent at the time of consideration
of application and not the Rules that were
prevalent on the death of government
servant.

(iii)
Feeling
aggrieved
and
dissatisfied with the impugned judgment
and order passed by the High Court
dismissing the writ petition and holding
that the case of the appellant shall be
governed by the 2020 Rules, the instant
appeal was filed, which was allowed
quashing the impugned judgment and order
and a direction was issued to the
respondents to consider the case of the
appellant
for
appointment
on
compassionate grounds under 1990 Rules,
as per his original application made in July,
2010 and if he is otherwise found eligible
to appoint him on the post of Junior Clerk.
The aforesaid exercise was directed to be
completed within a period of four weeks
from the date of order. It was also observed
that the appellant shall be entitled to all the
benefits from the date of his appointment
only.

27. In the case of Fertilizers and
Chemicals Travancore Ltd. & Ors.
(Supra), father of the respondent was
employed as a loading Helper with the
appellant No.1 and expired while on duty
on 19.04.1995. At the time of death of the
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
employee, wife of the deceased employee
was serving and therefore, was not eligible
for appointment on compassionate ground
considering the scheme for employment of
dependents of the employees dying in
harness. After a period of 14 years, after
the death of deceased employee, the
respondent
-
daughter
of
deceased
employee made a representation seeking
appointment on compassionate basis. Her
application for compassionate appointment
was rejected on 12.02.2018 on the ground
that her name was not in the list of
dependents submitted by the deceased
employee and that the policy was to give
employment to widow or son or unmarried
daughter of the deceased employee.

(i)
The
rejection
of
the
application for compassionate appointment
was the subject matter of challenge in writ
petition before the learned Single Judge.
Vide order dated 13.11.2019, learned
Single Judge disposed of the writ petition
with the direction to the appellants to
reconsider the application of respondent
within Clause 1 of the Scheme.

(ii)
On
12.12.2019,
after
reconsideration,
the
appellant
against
rejected the application of the respondent
for appointment on compassionate ground
on the ground that it did not meet the
primary test of scheme that the deceased
employee should be the "sole bread winner
of his family", since his wife was gainfully
employed with the Kerala State Health
Services Department at the time of his
death and also on the ground that 24 years
have lapsed since the date of death of the
deceased employee.