# Arpit Shukla v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 704
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-30
- **Case number:** Writ A No. 19344 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arpit-shukla-v-state-of-u-p-ors-51741
- **Pages:** 7

## Headnote

Service Law - Compassionate Appointment -
Uttar Pradesh Recruitment of Dependants of
Government Servants Dying in Harness Rules,
1974
-
Petitioner
sought
compassionate
appointment on a Class-III post following the
death of his father, a Class-IV employee, on
31.07.2022 - Held, the rejection of the
petitioner's application by the Chairman, Nagar
Palika Parishad, Faridpur, Bareilly, vide letter
dated 26.09.2023, was valid, as Rule 5 of the
Rules, 1974, and Government Order dated
17.06.2014, do not entitle the dependent to a
post higher than that held by the deceased
employee - The petitioner's higher qualification
does not override the requirement that "suitable
employment"
be
commensurate
with
the
deceased's post, as clarified by the Supreme
Court. (Paras 3, 5, 8, 15, 16, 17, 18)

Service Law - Interpretation of "Suitable
Employment" under Rule 5 - The petitioner
relied on Smt. Premlata to argue that "suitable
employment" under Rule 5 should be based on
the dependent's qualifications - Held, the
Supreme Court in St. of U.P. Vs Premlata
(reversing the Division Bench) and Suneel
Kumar Vs St. of U.P. clarified that "suitable
employment" under Rule 5 must be interpreted
with reference to the post held by the deceased
employee, not the dependent's qualifications -
Appointment on a higher post (e.g., Class-III) is
not permissible when the deceased held a ClassIV post. (Paras 9, 12, 15, 16, 17, 18)

Service Law - Absence of Vacancy and
Supernumerary Post - The petitioner argued for
the creation of a supernumerary Class-III post,
citing Sushma Gosain - Held, the Supreme
Court in Suneel Kumar held that a
supernumerary post cannot expand the scope of
"suitable employment" beyond the deceased's
post - The respondents confirmed no Class-III
vacancy existed, and the petitioner's refusal of a
Class-IV post offer further justified the rejection
- The petitioner was granted liberty to apply for
a Class-IV post, to be considered per the Rules,

## Text

704 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 3 ILRA 704
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2024
BEFORE
THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 19344 of 2023

Arpit Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Kumar Kesherwani

Counsel for the Respondents:
C.S.C., Sri Aditya Kumar Singh, Sri Manu
Saxena

Service Law - Compassionate Appointment -
Uttar Pradesh Recruitment of Dependants of
Government Servants Dying in Harness Rules,
1974
-
Petitioner
sought
compassionate
appointment on a Class-III post following the
death of his father, a Class-IV employee, on
31.07.2022 - Held, the rejection of the
petitioner's application by the Chairman, Nagar
Palika Parishad, Faridpur, Bareilly, vide letter
dated 26.09.2023, was valid, as Rule 5 of the
Rules, 1974, and Government Order dated
17.06.2014, do not entitle the dependent to a
post higher than that held by the deceased
employee - The petitioner's higher qualification
does not override the requirement that "suitable
employment"
be
commensurate
with
the
deceased's post, as clarified by the Supreme
Court. (Paras 3, 5, 8, 15, 16, 17, 18)

Service Law - Interpretation of "Suitable
Employment" under Rule 5 - The petitioner
relied on Smt. Premlata to argue that "suitable
employment" under Rule 5 should be based on
the dependent's qualifications - Held, the
Supreme Court in St. of U.P. Vs Premlata
(reversing the Division Bench) and Suneel
Kumar Vs St. of U.P. clarified that "suitable
employment" under Rule 5 must be interpreted
with reference to the post held by the deceased
employee, not the dependent's qualifications -
Appointment on a higher post (e.g., Class-III) is
not permissible when the deceased held a ClassIV post. (Paras 9, 12, 15, 16, 17, 18)

Service Law - Absence of Vacancy and
Supernumerary Post - The petitioner argued for
the creation of a supernumerary Class-III post,
citing Sushma Gosain - Held, the Supreme
Court in Suneel Kumar held that a
supernumerary post cannot expand the scope of
"suitable employment" beyond the deceased's
post - The respondents confirmed no Class-III
vacancy existed, and the petitioner's refusal of a
Class-IV post offer further justified the rejection
- The petitioner was granted liberty to apply for
a Class-IV post, to be considered per the Rules,
1974. (Paras 5, 6, 11, 16, 18, 20)

Writ Petition Dismissed.

Liberty Granted to Apply for Class-IV Post.

List of Cases Cited:

1. Sushma Gosain Vs U.O.I., (1989) 4 SCC 468

2. Smt. Premlata Vs St. of U.P. & ors., Special
Appeal Defective No. 620 of 2018

3. St. of U.P. Vs Premlata, (Supreme Court,
reversing Special Appeal Defective No. 620 of
2018)

4. Suneel Kumar Vs St. of U.P. & ors., AIR 2022
SC 5416

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

1. Heard learned counsel for the
petitioner, learned standing counsel for the
State-respondents and Sri Manu Saxena,
learned counsel for the respondent nos. 4 &
5.

2. Present petition has been filed with
the following prayers:-

"(a) Issue, a writ or direction in
the nature of certiorari to quash the
impugned
communication
letter dated
3 All. Arpit Shukla Vs. State of U.P. & Ors.
705
26.9.2023 (Annexure No.1) issued by
Respondent no.4-Chairman, Nagar Palika
Parishad,
Faridpur,
Bareilly
whereby
refused to grant the appointment on ClassIII post.

(b) Issue, a writ, order or
direction in the nature of mandamus
commanding and directing the respondent
authorities to appointment the petitioner on
the post of Clerk (Class-III) under the
Dying-In-Harness Scheme on account of
the death of his father or according to this
qualification as possible as earliest."

3. Brief facts of the case are that
father of petitioner was working as ClassIV employee at Nagar Palika Parishad,
Faridpur, Bareilly. During the course of
service, father of petitioner died on
31.7.2022. After his death, petitioner has
submitted an application for appointment as
Class-III
employee
on
compassionate
ground,
which
was
rejected.
His
appointment has not been considered,
therefore, petitioner has filed an application
before the District Magistrate upon which
ADM has sought instruction from the
respondent no.4, which was replied by him
vide impugned letter dated 26.9.2023. In
the said letter, it is mentioned that no post
is vacant for Class-III employee and further
in light of Government Order dated
17.6.2014, dependent of deceased has no
right to claim particular position or place
and it is the discretion of appointing
authority
to
pass
appropriate
order
warranted in the facts and circumstance of
the case. Though, the letter dated 26.9.2023
was not communicated to petitioner, but
coming to know that his claim has been
rejected at the end of respondent No. 4 vide
letter dated 26.09.2023, he has challenged
the same by filing present petition.

4. Learned counsel for the
petitioner submitted that in case post is
vacant, it is required on the part of
respondents to create supernumerary post
for
Class-III
employee
and
grant
appointment. He has placed reliance upon
the judgment of Apex Court in the case of
Sushma Gosain vs. Union of India
reported in 1989 (4) SCC 468 as well as
Division Bench of this Court in the case of
Smt. Premlata vs. State of U.P. and others
passed in Special Appeal Defective No.
620 of 2018 and Rule 5 of the Uttar
Pradesh Recruitment of Dependants of
Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as
Rules, 1974) and submitted that petitioner
is entitled for appointment on the post for
which he is having qualification.
5. Sri Manu Saxena, learned counsel for the
respondent nos. 4 & 5 has vehemently
opposed and submitted that in light of
Government
Order
dated
17.6.2014,
petitioner has no right to claim particular
post.
He
next
submitted
that
State
Government has challenged the judgment
of Division Bench of this Court given in
Smt. Premlata (Supra) before the Apex
Court and Apex Court has reversed the
judgment with specific finding that mere
qualification cannot be a ground for
appointment on higher post than the post
held by the deceased employee. He also
pointed out that it is not the case of
petitioner that post of Class-III is vacant
rather respondents are having specific case
that post of Class-III employee is not
vacant, which is also not disputed by the
petitioner.

6. He further submitted that again the
similar issue came up before the Apex
Court in the matter of Suneel Kumar vs.
State of U.P. and others reported in AIR
2022 SC 5416 and Apex Court has taken
specific view that supernumerary post
cannot determine the scope of the words
706 INDIAN LAW REPORTS ALLAHABAD SERIES
"suitable
employment."
He
firmly
submitted that in both the cases, Rule 5 of
Rules, 1974 has been interpreted, which
was subject matter of Division Bench of
this Court in the case of Smt Premlata
(Supra), therefore, under such facts and
interpretation
made
by Apex
Court,
petitioner is not entitled for appointment on
Class-III post on compassionate ground.

7. I have considered the rival
submission advanced by the learned
counsel for the parties and perused the
record, Rule 5 of Rules, 1974 as well as
judgments relied upon by the parties. Facts
of this case are undisputed. The only issue
before the Court is interpretation of
judgements as well as Rule 5 of Rules,
1974 relied by both the parties.

8.

To
appreciate
the
present
controversy, Rule 5 of Rules 1974 is being
quoted hereinbelow:-

[5. Recruitment of a member of
the family of the deceased.-(1) In case a
Government servant dies in harness after
the commencement of these rules and the
spouse of the deceased Government servant
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government, one member of his family who
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central Government or a State Government
shall, on making an application for the
purposes, be given a suitable employment
in Government service on a post except the
post which is within the purview of the
Uttar Pradesh Public Service Commission,
in relaxation of the normal recruitment
rules, if such person-

(i)
fulfils
the
educational
qualifications prescribed for the post,

(ii) is otherwise qualified for
Government service, and

(iii) makes the application for
employment within five years from the date
of the death of the Government servant:

Provided that where the State
Government is satisfied that the time limit
fixed for making the application for
employment causes undue hardship in any
particular case, it may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a just
and equitable manner.

(2) As far as possible, such an
employment should be given in the same
department
in
which
the
deceased
Government servant was employed prior to
his death.] [5A. Recruitment of member of
the family of Police/P.A.C. Personnel who
dies in May, 1973.-

Notwithstanding
anything
contained to the contrary contained in Rule
5 or in any other rule, the provisions of
these rules shall apply in the case of
members of the family of twenty-two police
or per Provincial Armed Constabulary
personnel who died as a result of
disturbances in May, 1973, as they apply in
the case of a Government servant during
dying in harness after the commencement
of these rules.]

9. Rule 5 of Rules, 1974 was
interpreted by Division Bench of this Court
in the matter of Smt. Premlata (Supra) and
Court has opined that suitable appointment
means appointment commensurate to the
qualification.

10. I have perused the judgment of
Apex Court in the case of Sushma Gosain
(Supra). Relevant paragraph of the said
judgment are quoted hereinbelow:-
3 All. Arpit Shukla Vs. State of U.P. & Ors.
707

"9. We consider that it must be
stated unequivocally that in all claims for
appointment on compassionate grounds,
there should not be any delay in
appointment. The purpose of providing
appointment on compassionate ground is to
mitigate the hardship due to death of the
bread
earner
in
the
family.
Such
appointment should, therefore, be provided
immediately to redeem the family in
distress. It is improper to keep such case
pending for years. If there is no suitable
post for appointment supernumerary post
should be created to accommodate the
applicant."

11. This judgment of Apex Court does
not deal with the interpretation of Rules 5
of Rules, 1974 as well as suitable
employment. It only says that claim for
appointment on compassionate ground
there should have been delay and in case of
unavailability of post, supernumerary post
should be created to accommodate the
applicant. Here, the post of class-IV is
available in light of Government Order
dated 17.6.2014, same has been offered to
petitioner, which was refused by petitioner
only on the ground that he is having higher
qualification. Facts of the case is entirely
different and not applicable in the case of
petitioner.

12. I have also perused the judgment
of Division Bench of this Court in the case
of Smt. Premlata (Supra). Relevant
paragraph of the said judgment are quoted
hereinbelow:-

"A bare perusal of Rule 5 of the
Rules of 1974 makes it crystal clear that
appointment under Rule 5 aforesaid is
required to be given on a suitable post. The
term 'suitable' in Rule 5 aforesaid pertains
to suitability of the person who desires for
appointment and it has nothing to do with
the post held by the deceased Government
Servant. The suitability of the aspirant is
required to be assessed on basis of the
educational
qualification
and
other
eligibilities so possessed by such person. In
the case in hand, the appellant-petitioner is
having the qualification of Bachelors
Degree in Arts as well as Bachelors Degree
in Education.

Looking
to
the
qualification
aforesaid, appellant-petitioner is suitable
to be employed on a post in Grade-III and
there is no just and valid reason for not
employing her in the grade aforesaid.
Suffice to mention that it is not the case of
the appellant-petitioner that no Class-III
post is available in the entire Department
of Police of Uttar Pradesh.

In view of it, we are of considered
opinion that learned Single Bench erred
while rejecting the writ petition on the
count that the husband of the appellantpetitioner was working in Class-IV cadre
and, therefore, appointment in Class-IV
cadre is justified."

13. Division Bench of this Court has
taken view that suitable employment means
appointment
commensurate
to
the
qualification. Court has also opined that
there is vacancy of Class-III post, therefore,
same has to be taken to petitioner in that
case.

14. Facts of the present case are
slightly different to the case relied upon. In
the present case, post of class-III is not
vacant, therefore, facts of the present case
is not similar with the judgment and order
of Division Bench of this Court passed in
the matter of Smt. Premlata (Supra).

15. Apart that, State Government has
challenged the judgment of Division Bench
708 INDIAN LAW REPORTS ALLAHABAD SERIES
of this Court passed in the matter of Smt.
Premlata (Supra) and Apex Court has
reversed the said judgment with detailed
finding. Relevant paragraph of this said
judgment is being quoted hereinbelow:-

"10. Thus as per the law laid
down by this court in the aforesaid
decisions, compassionate appointment is an
exception
to
the
general
rule
of
appointment in the public services and is in
favour of the dependents of a deceased
dying in harness and leaving his family in
penury
and
without
any
means
of
livelihood, and in such cases, out of pure
humanitarian consideration taking into
consideration the fact that unless some
source of livelihood is provided, the family
would not be able to make both ends meet,
a provision is made in the rules to provide
gainful
employment
to
one
of
the
dependants of the deceased who may be
eligible for such employment. The whole
object
of
granting
compassionate
employment is thus to enable the family to
tide over the sudden crisis. The object is
not to give such family a post much less a
post held by the deceased.

10.1 Applying the law laid down
by this court in the aforesaid decisions and
considering
the
observations
made
hereinabove and the object and purpose for
which the appointment on compassionate
ground is provided, the submissions on
behalf
of
the
respondent
and
the
interpretation by the Division Bench of the
High Court on Rule 5 of Rules 1974, is
required to be considered

. 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 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 ClassII or
ClassI 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.

10.3 In the present case as
observed
hereinabove
initially
the
respondent applied for appointment on
3 All. Arpit Shukla Vs. State of U.P. & Ors.
709
compassionate ground on the post of
Assistant
Operator
in
Police
Radio
Department. The same was not accepted by
the Department and rightly not accepted on
the ground that she was not fulfilling
requisite eligibility criteria for the post of
Assistant
Operator.
Thereafter
the
respondent again applied for appointment
on the compassionate ground on the post of
Workshop
Hand.
The
case
of
the
respondent was considered, however, she
failed in the physical test examination,
which was required as per the relevant
recruitment rules of 2005. Therefore,
thereafter she was offered appointment on
compassionate ground as Messenger which
was equivalent to the post held by the
deceased employee. Therefore appellants
were justified in offering the appointment to
the respondent on the post of Messenger.
However, the respondent refused the
appointment on such post.

11. In view of the above and for
the reasons stated above, the Division
Bench of the High Court has misinterpreted
and misconstrued Rule 5 of the Rules 1974
and in observing and holding that the
'suitable post' under Rule 5 of the DyingIn
Harness Rules 1974 would mean any post
suitable
to
the
qualification
of
the
candidate
and
the
appointment
on
compassionate ground is to be offered
considering the educational qualification of
the dependent. As observed hereinabove
such an interpretation would defeat the
object and purpose of appointment on
compassionate ground.

12. In view of the above for the
reasons stated above, present appeal
succeeds. The impugned judgment and
order passed by the Division Bench of the
High Court dated 14.09.2018 in Special
Appeal Defective (SAD) No.620 of 2018 is
hereby
quashed
and
set
aside.
Consequently the writ petition preferred by
the respondent before the learned Single
Judge being Writ Petition No.16009 of
2018 stands dismissed and the order passed
by
the learned
Single
Judge
dated
31.07.2018 dismissing the writ stands
restored. No costs.

16. This issue was again before the
Apex Court in the matter of Suneel Kumar
(Supra). Relevant paragraph of the said
judgment is quoted hereinbelow:-

"10. At the same time, as far as
the question relating to the entitlement as it
were of the appellant to be considered to
the post of Gram Panchayat Officer is
concerned, it is without doubt a post borne
in Class-III. The father of the appellant was
working as a Sweeper borne in Class-IV
post. We have noticed the view taken by this
Court in Premlata (supra). In other words,
the law as declared is to the effect that the
words "suitable employment" in Rule 5
must be understood with reference to the
post held by the deceased employee. The
superior qualification held by a dependent
cannot determine the scope of the words
"suitable employment".

11. It is clear that the Annexure
P-1 does not represent statutory Rules. We
do not think we should be persuaded to
take a different view as things stand. We
cannot eclipse the dimension that the whole
purport of the scheme of compassionate
appointment is to reach immediate relief to
the bereaved family. In such circumstances,
the meaning placed on the words "suitable
employment" bearing in mind the post held
by the deceased employee cannot be said to
be an unreasonable or incorrect view."

17. Apex Court had twice interpreted
the Rule 5 Rules 1974 as well as suitable
employment as referred herein. Apex Court
has clearly held that "suitable employment"
710 INDIAN LAW REPORTS ALLAHABAD SERIES
in Rule 5 must be construed with the post
held by the deceased employee and not by
the higher qualification held by the
dependent. View of the Apex Court is that
compassionate appointment shall not be
given upon a higher post than the post held
by the deceased employee. Therefore, as on
date, law of land is that legal heir cannot be
given
appointment
on
compassionate
ground to a post higher than the post held
by the deceased employee.

18. Now coming to the present case.
Undisputedly father of petitioner was
working on the Class-IV post and after his
death, he has been offered employment on
the post of Class-IV, which was refused by
him on the ground that he is having
qualification for the post of Class-III.
Therefore, in light of interpretation of Rule
5 of Rules 1974 made by the Apex Court as
well as this Court, petitioner is not entitled
for the post of Class-III on compassionate
ground.

19. Accordingly, the writ petition
lacks merit and is dismissed. No order as to
costs.

20. However, this order does not
preclude the petitioner to file application
for appointment on Class-IV post. In case
any such application is filed by petitioner,
same shall be considered and decided in
accordance with Rules, 1974 as well as law
laid down by this Court.
----------
(2024) 3 ILRA 710
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 20031 of 2023
Connected with
Writ A No. 18909 of 2023

Committee of Management Hindu College
Moradabad & Anr. ...Petitioners
Versus
Mahatma
Jyotiba
Phule
Rohilkhand
University, Bareilly & Ors. ...Respondents

Counsel for the Petitioners:
Sri Indra Raj Singh, Sri Adarsh Singh, Sri
Pramod Kumar Singh

Counsel for the Respondents:
C.S.C., In Person, Sri Rohit Pandey

Service Law - Disciplinary Proceedings -
Authority of Committee of Management - Dr.
Sudha Garg, an Associate Professor appointed
on the recommendation of the Higher Education
Service Commission, challenged the Committee
of Management's authority to initiate disciplinary
proceedings,
arguing
that
only
the
St.
Government through the Director of Higher
Education could do so - Held, under Statutes
14.03, 14.04, and 14.07 of the First Statute of
Mahatma Jyotiba Phule Rohilkhand University,
read with Section 31(1) of the U.P. St.
Universities Act, 1973, the Committee of
Management is the appointing and disciplinary
authority for teachers in affiliated colleges,
subject to Vice Chancellor's approval - The U.P.
Higher Education Service Commission Act, 1980,
governs
only
the
selection
process,
not
disciplinary matters, and its overriding effect
under Section 30 does not extend to disciplinary
proceedings, which remain under the University
Act and Statutes. (Paras 12(a), 23, 25, 32, 34,
35, 41, 42)

Service Law - Principles of Natural Justice
in Disciplinary Enquiry - Dr. Garg challenged
the
enquiry
process,
alleging
denial
of
opportunity to cross-examine witnesses and
access documents - Held, the enquiry report
dated 30.07.2019 was vitiated due to procedural
lapses, including failure to supply copies of
witness St.ments and affidavits, denial of crossexamination
opportunities,
and
lack
of
discussion on Dr. Garg's documentary evidence
and replies - The enquiry committee's findings
were not supported by adequate evidence,