# Arun Kumar v. State Of U.P. & Ors. 2034 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2016) 5 ILRA 2033 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-10 - **Bench:** B. Amit Sthalekar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-v-state-of-u-p-ors-2034-indian-law-reports-allahabad-series-43913 - **Pages:** 3 ## Text 5 All. Arun Kumar Vs State Of U.P. & Ors. 2033 Act, there is no reason why Section 100 (1) (d) (iv) should not be attracted to it. If exercise of a power is competent either under the provisions of' the Constitution or under any other provision of law, any infirmity in the exercise of that power is, in truth and substance, on account of noncompliance with the provisions of law, since law demands of exercise of power by its repository, as in a faithful trust, in a prope,. regular, fair and reasonable manner. (See also Durga Shankar Mehta Vs. Thakur Raghueraj Singh)." "126. The above being the legal position, Article 329 (b) rules out the maintainability of the writ application. Article 329 (b) provides that "notwithstanding anything in this Constitution...... no election to either House of Parliament...... shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." It is undisputed that an election can be challenged only under the provisions of the Act. Indeed Section 80 of the Act provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of" Part VI of the Act. We find that all the substantial reliefs which the appellants seek in the writ application, including the declaration of the election to be void and the declaration of appellant 1 to be duly elected, can be claimed in the election petition. It will be within the power of the High Court, as the election court, to give all appropriate reliefs to do complete justice between the parties. In doing so it will be open to the High Court to pass any ancillary or consequential order to enable it to grant the necessary relief provided under the Act. The writ application is therefore barred under Article 329 (b) of the Constitution and the High Court rightly dismissed it on that ground. 14. The aforesaid view taken by two constitution Benches that Article 329 (b) operates as a complete bar to challenge any of the steps from start to finish of the election process and the only remedy available is by way of election petition has been constantly followed till date. 15. In view of the settled legal proposition, this writ petition challenging the rejection of the nomination paper of the petitioner is not liable to be entertained being barred and the same accordingly stands dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.05.2016 BEFORE THE HON'BLE B. AMIT STHALEKAR, J. Writ A No.- 21037 Of 2016 Arun Kumar ...Petitioner Versus State Of U.P. & Ors. ...Respondents 2034 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for Petitioner: Santosh Kumar Shukla, Ravindra Kumar Counsel for Respondents: C.S.C., Mrigraj Singh Held The petitioner sought appointment on compassionate grounds after the death of his mother, who was working as Headmistress in a Primary School and died in service on 12.05.2014. The Court examined whether the petitioner could be considered a dependent of the deceased employee, which is a necessary condition for compassionate appointment. The petitioner was 49 years of age, had two daughters pursuing higher education and a son studying in Class IX, indicating that his own children were dependent on him. The Court held that it was improbable and unreasonable to claim that a 49-year-old person with dependents of his own was financially dependent upon his mother. Normally, a person of such age would be expected to support his parent, rather than claim dependency upon them. The Court further observed that the plea of financial hardship mentioned in the writ petition did not establish dependency on the deceased employee. Compassionate appointment is meant to relieve the immediate financial distress of the family of the deceased employee, not to provide employment as a matter of inheritance. The Court held that the petitioner appeared to be claiming compassionate appointment as a hereditary right, which is not permissible under law. Since the petitioner failed to establish dependency or immediate financial hardship arising from the death of the employee, his claim for compassionate appointment was not maintainable. Accordingly, the writ petition was dismissed. CASE LAW CITED None (Delivered by Hon'ble B. Amit Sthalekar, J.) 1. Heard Sri Santosh Kumar Shukla, learned counsel for the petitioner, Sri Mrigraj Singh, learned counsel for the respondents no.2 & 3 and Sri Rakesh Pratap Singh, learned Standing Counsel for the respondent no.1. 2. The petitioner is seeking appointment on compassionate ground. 3. According to the petitioner his father was posted as Headmaster in the Primary School and retired from service on attaining the age of superannuation on 30.06.2008 and thereafter died on 23.03.2014. The mother of the petitioner was working as Headmistress in the Primary School Udaipurdipi, Block Khutahan, District Jaunpur and she died while still in service on 12.05.2014. In paragraph 8 of the writ petition it is stated that the petitioner's one daughter is studying B.Sc. and his second daughter has taken admission in the B.T.C. Training Course and his son is studying in Class IXth Standard and therefore, his family is facing financial crisis. 5 All. Km. Ruby Mausoof Vs State Of U.P. & Ors. 2035 4. The petitioner is 49 years of age. The question is if the one daughter of the petitioner is studying B.Sc. and his second daughter has taken admission in the B.T.C. Training Course and his son is studying in Class IX Standard and he is also 49 years of age how can he said to be the dependant of his mother particularly when he is 49 years of age himself. It does not sound probable that the petitioner was dependant upon his mother. Besides, his own two daughters and son would be dependent upon him therefore, it is ludicrous to suggest that the petitioner is himself dependent upon his mother. At the age of 49 the petitioner would have been expected to take care of his mother rather that claim himself to be a dependent upon his mother. For the same reason the averments of paragraph 8 of the writ petition hardly come to the aid of the petitioner. It appears that this writ petition has been filed by the petitioner claiming appointment on compassionate ground as a hereditary right rather than dire financial straits. 5. I do not find any merit in the writ petition and the same is accordingly dismissed. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.05.2016 BEFORE THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J. Writ A No.- 21437 Of 2016 Km. Ruby Mausoof ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Kamlesh Kumar Tiwari Counsel for the Respondents: C.S.C. Service Law- Compassionate appointment - Married daughter - Rule 2(c)(iii) - U.P. Recruitment of Dependents of Government Servants Dying-In-Harness Rules 1974 - Definition of family - Word "unmarried" - Ultra vires - Unconstitutional - Articles 14 and 15 of the Constitution of India - Gender discrimination - Dependency - Impugned order set aside - Matter remitted - Writ petition allowed. The petitioner's father was a constable in Civil office and was posted in District Ghazipur, He died in harness on 28.8.1999. The petitioner made an application for her appointment on compassionate ground. When no decision was taken on the application of petitioner, she preferred Writ Petition No. 29661 of 2015 for a direction upon the respondents to appoint her on compassionate ground. The said writ petition was disposed of on 21.5.2015 by issuing a direction upon the third respondent therein to consider the cause of the petitioner.(Para 1)