# Apatesh Rai v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 953
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-26
- **Case number:** Civil Misc. Writ Petition No. 43788 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/apatesh-rai-v-state-of-u-p-and-others-41280
- **Pages:** 2

## Text

3 All] Apatesh Rai V. State of U.P. and others
953

17. It is also worth while to mention
here that the accused-appellants were not
arrested on the spot at the time of
committing dacoity nor any looted
property was recovered or discovered
from their possession or on their pointing
out. It is very surprising that all the
appellants are resident of same village.
They were named in the F.I.R. After one
day of the incident they were arrested: by
the police but nothing was recovered.
This also shows the innocence of the
appellants. Therefore it appears that the
appellants have been falsely implicated by
P.W. 1 in lodging the FIR. due to the
enmity. However the trial court has
committed
the
error,
illegality
in
convicting the appellants for the charges
levelled against them.

18. In view of discussions made
above I am or the considered view that
this appeal has force and deserves to be
allowed. Consequently this appeal is
allowed. The impugned judgment and
order passed by the trial court is hereby
set aside. All the above four appellants are
hereby acquitted for the charges levelled
against them. They are on bail. Their bail
bonds
arc
cancelled
and
sureties
discharged. There is no need to surrender
them.

19. A copy of this judgment along
with the record of court below be sent
immediately to the court concerned for its
compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 43788 of 2008

Apatesh Rai

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

Counsel for the Petitioner:
Sri C.S. Srivastava
Sri Sudhanshu Srivastava

Counsel for the Respondents:
S.C.

Constitution
of
India
Art.
226Compassionate
Appointment
by
dependent
of
Shiksha
Mitra-claimed
appointment on compassionate groundin absence of such scheme or G.O.
providing
benefit
of
compassionate
appointment-Court can not issue such
direction.

Held: Para 3

In the absence of any such scheme
available for the heirs of the Shiksha
Mitra
the
claim
of
petitioner
is
thoroughly
misconceived.
Moreover,
there is another aspect of the matter.
The appointment of Shiksha Mitra is
made on tenure basis for a particular
session. The wife of petitioner has died
on 22.05.2008 and for the Session 200809 she has no legal right to continue
except of consideration of her case for
renewal on the basis of her past
performance otherwise the post is liable
to be filled in by fresh selection. In such
kind of appointment normally the claim
of compassionate appointment is not
attracted.
Case law discussed:
2006(5) SCC 523, JT 2007 (3) 398.
954 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
(Delivered by Hon'ble Sudhir Agarwal, J.)

1.

The
petitioner
claims
compassionate appointment on the ground
that his wife who was appointed as
Shiksha Mitra for the Session 2002-03
and
continued
thereafter,
died
on
22.05.2008 and after her death the
petitioner has moved an application
seeking compassionate appointment but
neither any decision has been taken
thereafter nor he has been provided
compassionate
appointment.
He,
therefore, prayed that this application be
directed to be decided by the respondent
no. 4.

2. However, in my view, the writ
petition is thoroughly misconceived and,
therefore, there is no question of directing
the respondent no. 4 to decide the
aforesaid application of petitioner. It is
not disputed by the petitioner that there is
no provision either statutory or otherwise
providing
for
any
scheme
of
compassionate appointment to the heirs of
the person who died while working as
Shiksha Mitra. It is well settled, if there is
no scheme for providing compassionate
appointment the same cannot be claimed
or granted as held by the Apex Court in
Indian Drugs & Pharmaceuticals Ltd.
Vs. Devki Devi and others, 2006(5) SCC
523 and the same has been followed in the
case of State Bank of India Vs. Somvir
Singh, JT 2007 (3) 398 wherein the Apex
Court held as under:

"There is no right whatsoever nature
to claim compassionate appointment on
any ground other than one, if any,
conferred by the employer by way of
scheme or instructions as the case may
be."

3. In the absence of any such
scheme available for the heirs of the
Shiksha Mitra the claim of petitioner is
thoroughly
misconceived.
Moreover,
there is another aspect of the matter. The
appointment of Shiksha Mitra is made on
tenure basis for a particular session. The
wife of petitioner has died on 22.05.2008
and for the Session 2008-09 she has no
legal
right
to
continue
except
of
consideration of her case for renewal on
the basis of her past performance
otherwise the post is liable to be filled in
by fresh selection. In such kind of
appointment normally the claim of
compassionate
appointment
is
not
attracted.

4. In view of above, it is evident that
the petitioner has no personal right to
continue on the post of Shiksha Mitra and
hence also the concept of compassionate
appointment could not affect to such kind
of appointment.

5. The writ petition, therefore, lacks
merit and is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2008

BEFORE
THE HON'BLE BARKAT ALI ZAIDI, J.
THE HON'BLE V.K. VERMA, J.

Criminal Misc. Writ Petition No. 12533 of
2008

Ram Das Dohrey and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Dr. Arun Srivastava