# Arvind Kumar v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-02
- **Case number:** Civil Misc. Writ Petition No. 52517 of 2005
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-v-state-of-u-p-and-others-40758
- **Pages:** 5

## Headnote

Constitution
of
India-Art.
226Compassionate
Appointment-claiming
parity
on
higher
post-can
not
be
accepted once the petitioner acceptedappointment on the post of L.D.C.-
exception
to
normal
mode
of
recruitment-can not claim parity with
other appointee on the post of U.D.A.-
rejection order held proper.

Held: Para 12

The crux of the matter of the petitioner
is that he was offered appointment on
compassionate ground on the post of
Lower Division Assistant, which he has
accepted. It is settled law that the
appointment on compassionate ground is
not a matter of right but is exception to
normal
mode
of
recruitment.
The
petitioner having accepted the post of
Lower
Division
Assistant
on
compassionate ground he could not have
claimed higher post on the ground of
parity with some other persons who
have been offered appointment on the
post of U.D.C. Some of them were
offered appointment on the post of
U.D.C. and some of them were offered
appointment on the post of L.D.C. Their
case is different then the case of the
petitioner and there is no question of
parity. Even though the impugned order
may have been passed by respondent
no.3, no relief can be granted to the
petitioner
as
he
has
accepted
the
compassionate appointment on the post
of L.D.C. hence he cannot claim higher
post subsequently on the ground of
parity.

## Text

3 All] Arvind Kumar V. State of U.P. and others
1139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2006

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 52517 of 2005

Rajresh Kumar Singh

...Petitioner
Versus
The Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Assem Kumar Rai

Counsel for the Respondents:
Sri K.C. Sinha, A.S.G. India.
Sri Rajiv Sharma

Constitution
of
India-Art.
226Compassionate
Appointment-claiming
parity
on
higher
post-can
not
be
accepted once the petitioner acceptedappointment on the post of L.D.C.-
exception
to
normal
mode
of
recruitment-can not claim parity with
other appointee on the post of U.D.A.-
rejection order held proper.

Held: Para 12

The crux of the matter of the petitioner
is that he was offered appointment on
compassionate ground on the post of
Lower Division Assistant, which he has
accepted. It is settled law that the
appointment on compassionate ground is
not a matter of right but is exception to
normal
mode
of
recruitment.
The
petitioner having accepted the post of
Lower
Division
Assistant
on
compassionate ground he could not have
claimed higher post on the ground of
parity with some other persons who
have been offered appointment on the
post of U.D.C. Some of them were
offered appointment on the post of
U.D.C. and some of them were offered
appointment on the post of L.D.C. Their
case is different then the case of the
petitioner and there is no question of
parity. Even though the impugned order
may have been passed by respondent
no.3, no relief can be granted to the
petitioner
as
he
has
accepted
the
compassionate appointment on the post
of L.D.C. hence he cannot claim higher
post subsequently on the ground of
parity.

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

1. Heard counsel for the parties and
perused the record.

2. The petitioner was appointed as
Lower Division Assistant on 16.1.1996 on
compassionate
ground.
He
made
a
representation-dated
28.12.98
to
the
respondents for appointment on the post
of Upper Division Clerk claiming parity
with some other persons who were
appointed on compassionate ground. The
representation of the petitioner was
rejected by respondent no.3 vide order
dated 6/9/10.11.99. The petitioner again
moved an application-dated 24.12.1999 as
well
as
reminder-dated
5.6.2000
reiterating his claim which was also
rejected by respondent no.3, the Director
Administration,
Khadi
&
village
Industries Commission, Lucknow.

3. Aggrieved the petitioner preferred
an appeal on 5.7.2000 before the
Chairman/Chief Executive Officer, Khadi
and Village Industries Commission, 3,
Irla Road, Vile Parley (West) Mumbai.
Since the appeal was not being decided by
respondent no.2, he filed writ petition no.
52369 of 2004 before this Court, which
was disposed of with a direction to
respondent no.2 to decide the appeal of
the petitioner within a period of two
months from the date of submission of a
certified copy of the order.
1140 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
4. It is stated that in the mean time
respondent
no.3
without
jurisdiction
decided the appeal, which has given rise
to the present writ petition.

5. The contention of the counsel for
the petitioner is that the appeal filed
against
the
order
rejecting
the
representation
of
the
petitioner
by
respondent no.3 lies to respondent no.2,
the Chairman/Chief Executive Officer,
Khadi
and
Village
Industries
Commission, Mumabi. He urged that
Director
Administration,
Khadi
and
Village Industries Commission, Lucknow
could not have usurped the power of
Chairman and decide the appeal against
his own order.

6. The counsel for the petitioner has
placed reliance upon paragraph 12 of the
writ petition which is as under:-

"That
one
Mr.
V.S.
Kastwar,
Assistant Director died during the service
period his wife Smt. Kusum late Kastwar
was appointed on the post of U.D.C. Sri
P.K.
Thakur
Assistant
Development
Officer died during the service period, his
wife
Smt.
Sulochana
Thakur
was
appointed on the post of U.D.C. Sri V.N.
Singh (Accountant) died during the
service period, his son Ashok Kumar
Singh was appointed on the post of
Surveyor even without any training, Sri
V.K. Bajpayee (Accountant) died during
the service period, his wife Smt. Anjani
Kumari Bajpayee was appointed on the
post of U.D.C. The petitioner has made a
representation dated 28.12.1998 regarding
these appointments."

7. Relying upon the averments made
in aforesaid paragraph 12 of the writ
petition as quoted above, the counsel for
the petitioner submits that Sri V.S.
Kastwar, Assistant Director died during
the service period, his wife was appointed
on the post of U.D.C. and similarly other
persons have been given appointment on
the said post but the petitioner has been
discriminated
while
giving
him
appointment on compassionate ground on
the post of Lower Division Assistant.

8. The counsel for the respondents
has relied upon paragraphs 7 and 8 of the
counter affidavit in which it has been
averred that the appeal of the petitioner
was considered by respondent no.2 as per
directions of the Court in writ petition no.
53369 of 2004. It is also averred that the
order dated 15/21.2.2005 was issued
under the signatures of respondent no.3
with approval of respondent no.2, the
Commissioner as such there is no
illegality in the impugned order. In any
case the claim of the petitioner has once
again been considered by respondent no.
2 who has passed a detailed and speaking
order on 22.8.2005 rejecting the claim of
the
petitioner
for
compassionate
appointment on higher post which has
also been communicated to the petitioner.

9. The counsel for the respondents
has urged that the appeal of the petitioner
was considered by respondent no.2 and
not by respondent no.3 who has only
communicated the reasons for dismissal
of the appeal dated 15/21.2.2005. The
communication is as under:-

"Sri Rajesh Kumar Singh, was
appointed as LDC with the Khadi &
Village
Industries
Commission
on
Compassionate ground, consequent to the
death of his father late Raj Narain Singh
while employed with KVIC as Asstt.
Development Officer. At the time of
3 All] Rajesh Kumar Singh V. The Union of India and others
1141
sudden demise of is father Shri Rajesh
Kumar Singh submitted an application for
employment with the Khadi and Village
Industries Commission on Compassionate
ground. The case of Sri Rajesh Kumar
Singh was considered keeping in view the
circumstances and also the prevalent
guidelines from Government of India and
accordingly
he
was
offered
an
appointment to the post of Lower Division
Clerk vide Appointment Order No.AdmI/NGR/Comp.Apptt/CL-III/95-96
dated
12/16.1.1996 which was duly accepted by
him and he accordingly reported for duty
on 29.1.1996. With the above, the family
of late Raj Narain Singh was fully
satisfied. While appointing Shri Singh as
LDC though he was not having the
prescribed typing skill, but a relaxation to
pass the typing test within a period of one
year by availing 3 chances from the date
of his joining the services, was granted to
him, which he availed and accordingly
passed the typing test in the 2nd chance.
Subsequently, in 1998 Shri Rajesh
Kumar Singh represented that keeping in
view of is qualification, he should have
been appointed as LDC as has been done
in some other cases. This demand perhaps
was an after thought, for which the
Commission replied him suitably stating
that it does not fall within the purview of
Compassionate appointment.
Further he approached the Hon'ble
High Court of Allahabad through a Writ
Petition No. 53369 of 2004 along with
which he submitted a copy of appeal
purported to have been submitted by him
to the Commission. The Hon'ble High
Court while disposing of the writ petition
of Shri Singh ordered that the respondent
no.2, i.e. Chairman KVIC shall decide the
appeal dated 5.7.2000 ( enclosed to the
petition as Annexure-VI) expeditiously
preferably within a period of 2 months.
Accordingly, the appeal of Sri Rajesh
Kumar Singh is disposed off with the
observation as under:-

1) The
KVIC
has
followed
the
guidelines of the Government of India,
O.M.
prescribed
on
compassionate
appointment of wards of its deceased
employee
on
compassionate
ground.
While efforts are made to accommodate
maximum cases, but it has been the fact
that the Commission has not been able to
provide employment to all, even to the
lower level of post in case of all such
families. However, in case of late Raj
Narain Singh, his son Shri Rajesh Kumar
Singh was provided the employment in the
post of LDC very promptly to support the
family of late Raj Narain Singh. He was
offered the post of LDC and the same was
accepted by him as mentioned above. Has
there
been
any
objection
to
his
appointment as LDC on compassionate
ground, he or his family could object to it
before joining the post offered to him
which he did not do so.
2) The comparison by Shri Rajesh
Kumar Singh himself with the other
compassionate appointees cannot be
accepted
as
a
valid
ground
for
compassionate appointment. The main
objective of the scheme is to grant
appointment in compassionate ground to
a
dependent
family
member
of
a
Government servant dying in harness,
thereby leaving his family in penury and
without any means of livelihood, to
relieve the family of the Government
servant from financial destitution and to
help it get over the emergency. Hence, his
ward may be qualified even for higher
posts does not get accommodated in the
posts carrying equivalent qualifications
interalia, means that the appointment on
compassionate ground is not offered
1142 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
matching to the qualifications of the
appointee but an immediate assistance is
rendered to the family with possible
relaxation also, which has been done in
case of Shri Rajesh Kumar Singh, by
providing relaxation in typing test a basic
requirement for appointment to the post of
LDC which he has accepted. Therefore,
the main objective to relieve the family of
the deceased Government servant has
been met out, and his appeal for
appointment to the post of UDC cannot be
acceded to.

This is issued with the approval of the
Commissioner.

Sd. Illegible
DIRECTOR (ADMINISTRATION)"

10. It appears from the above
communication that the authorities have
followed
the
guidelines
of
the
Government of India as well as the
guidelines of the K.V.I.C. prescribed in
Standing Order No. 1256 wherein it is
clearly provided that when a person has
accepted compassionate appointment to a
particular post, the set of circumstances
which led to his initial appointment
should be deemed to have ceased to exist.
The
person
who
has
accepted
compassionate
appointment
on
a
particular post should strive in his career
like
his
colleagues
for
future
advancement.
Any
claims
for
appointment
to
higher
post
on
consideration
of
compassion
should
invariably be rejected.

11. Having considered the rival
submissions of the counsel for the parties
I am of the opinion that the impugned
order is only a communication of reasons
approved by respondent no.2 to the
petitioner by which he has been informed
as to why his appeal has been rejected by
respondent no.2.

12. The crux of the matter of the
petitioner
is
that
he
was
offered
appointment on compassionate ground on
the post of Lower Division Assistant,
which he has accepted. It is settled law
that the appointment on compassionate
ground is not a matter of right but is
exception to normal mode of recruitment.
The petitioner having accepted the post of
Lower
Division
Assistant
on
compassionate ground he could not have
claimed higher post on the ground of
parity with some other persons who have
been offered appointment on the post of
U.D.C. Some of them were offered
appointment on the post of U.D.C. and
some of them were offered appointment
on the post of L.D.C. Their case is
different then the case of the petitioner
and there is no question of parity. Even
though the impugned order may have
been passed by respondent no.3, no relief
can be granted to the petitioner as he has
accepted the compassionate appointment
on the post of L.D.C. hence he cannot
claim higher post subsequently on the
ground of parity.

13. In any case respondent no.2 by a
fresh order dated 22.8.2005 has rejected
the appeal of the petitioner ratifying the
reasons given in the impugned order
setting the controversy in the writ
petition.

For the reasons stated above, the writ
petition is dismissed.
---------
3 All] Rajesh Kumar Singh V. The Union of India and others
1143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2006

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No.60896 of 2005

Krishna Kumar

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

Counsel for the Petitioner:
Sri Neeraj Kanta Verma
Sri Siddharth Khare
Sri Avnish Kumar Srivastava
Sri Amit Srivastava
Sri Ashok Khare

Counsel for the Respondents:
Sri C.S. Singh
S.C.

Constitution
of
India-Art.
226Cancellation of Selection-Petitioner was
selected on the post of Police Constable
during Character verification it was
found that criminal case is pending-plea
that in application form only information
sought about the conviction in any
criminal case-as per notification dated
6.2.05 petitioner given false affidavitthat he never involved in any criminal
case-held-tendering
false
affidavit
a
clear impact on the character and
antecedent of a candidate-held-rightly
nor suited in Police service.

Held: Para 7 & 9

However, the matter does not stop here.
In the instant case the petitioner has
admitted the filing of an affidavit before
the respondents. It is not the case of the
petitioner that the affidavit was forcibly
demanded from him. In this view of the
matter, a clear inference can be drawn to
the effect that the petitioner voluntarily
submitted
the
said
affidavit.
The
petitioner is an educated person and it
cannot be presumed that the petitioner
filed the affidavit even without reading
the contents thereof. Paragraphs 4 and 5
of the affidavit clearly indicate the
tendering of a correct information in
respect of a pending case or a person
being arrested. The petitioner, therefore,
had tendered an incorrect information
through
the
said
affidavit.
The
explanation set up in the rejoinder
affidavit that such affidavits were filled
up en mass by all the candidates cannot
be an excuse for the petitioner to resile
back
from
an
incorrect
information
tendered by him. The filing of an
affidavit is a requirement for verifying
the antecedents and character of a
candidate.
The
facts
of
this
case
therefore are distinguishable from the
facts of the case decided by the Apex
court relied on by the learned counsel for
the petitioner. In view of this clear
distinction on facts, the ratio in Naidu's
Case (supra) will not come to the aid of
the petitioner.

Apart from this, learned standing counsel
relied on the case of Delhi Administration
Vs. Shushil Kumar, 1996 (II) S.C.C. 605
to urge that the acquittal or discharge of
a candidate has nothing to do with the
question of judging the antecedents and
character of a candidate. Inviting the
attention of the court to para 3 of the
said decision, learned standing counsel
has urged that what is relevant is the
conduct and character of a candidate to
be appointed and not the actual result of
the criminal case. From a perusal of the
aforesaid decisions, referred to herein
above, it can be said that the petitioner
was not fair in his disclosure. On the
contrary
the
affidavit
filed
by
the
petitioner amounts to tendering of a
false information and therefore, the
petitioner was rightly non suited for
employment in the Police services.
Case law discussed:
1997 (2) UPLBEC-1201
2005 (2) SCC-746
2003 (3) SCC-437
1997 (11) SCC-605