# Ashish Yadav v. Managing Director, U.P.S.R.T.C. & Ors

- **Citation:** (2025) 1 ILRA 800
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-15
- **Case number:** Writ A No. 17483 of 2024
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-yadav-v-managing-director-u-p-s-r-t-c-ors-53097
- **Pages:** 12

## Headnote

Law
-
Compassionate
Appointment
-
U.P.
Recruitment
of
Dependents
of
Government
Servants
Dying-in-Harness
Rules,
1974
-
The
concept
of
compassionate
ground
appointments is a welfare measure taken
by
a
model
employer.
However,
an
unjustified
generous
approach
in
compassionate
ground
which
is
not
consistent with the applicable service
rules will confer benefit to underserving
and
ineligible
candidates,
and
simultaneously deny the rights and lawful
claims
of
eligible
and
meritorious
candidates from getting appointment to
government posts. Treating compassionate
ground appointments as an unconditional and
vested right and making it a source of
recruitment will shear the thin veil of legality
which protects such appointments from the vice
of unconstitutionality. The very concept of
compassionate ground will then be exposed to
the wrath of Articles 14, 15, 16 of the
Constitution of India. (Para 14)

B. The purpose of grant of compassionate
ground appointments can be subserved
and their constitutionality can be saved
only by strict compliance of the rules
governing the grant of compassionate
ground appointments. (Para 15)

Appointment on compassionate grounds
seeks to relieve the immediate financial
hardship faced by the dependants of the
deceased. It acts as an exception to
Articles 14 and 16 of the Constitution as
the
defendant
are
given
preferential
appointment
ahead
of
other
equally
meritorious candidates similarly placed
and hence it cannot be claimed as a right.
This appointment must be done in accordance
with the rules for such appointment. The
1 All. Ashish Yadav Vs. Managing Director, U.P.S.R.T.C. & Ors.
801
dependant seeking such appointment must be
eligible for such consideration and facing
financial hardship to the extent delineated by
the rules. (Para 18)

C. One of the mandatory prerequisites for
appointments on compassionate ground
as contemplated in the Uttar Pradesh
Recruitment
of
Dependents
of
Government Servants Dying-in-Harness
Rules, 1974 is that the application for
employment should be made within five
years from the date of death of the
government servant. However, the said
provision also empowers the St. Government to
dispense with or relax the aforesaid time limit in
appropriate cases. The said provision for
condonation of delay by the St. Government/
competent authority after due application of
mind to relevant facts is mandatory in nature.
Failure to condone the delay in making the
application for compassionate appointment by
the St. Government/competent authority after
due application of mind to relevant factors will
vitiate the appointment. (Para 21)

The
mandatory
prerequisite
of
condonation of delay in making the
application
for
compassionate
appointment by the competent authority
under the Dying-in-Harness Rules, 1974
has been violated. The appointment of the
petitioner as a contractual worker was not made
under
the
Dying-in-Harness
Rules,

## Text

800 INDIAN LAW REPORTS ALLAHABAD SERIES
1963 Rules, and therefore, the
Hon'ble Supreme Court held that it
does not invalidate the second
marriage of the deceased with
respondent no. 1. The deceased had
executed a settlement deed between
his two wives, both with regard to
his
movable
and
immovable
properties. Having accepted and
acted upon the deed it was not open
to the appellant no. 1 to now
renegade from the same. The
Hon'ble Supreme Court further
held that: -

"9.
Family
pension
undoubtedly is not part of the estate
of the deceased and will be
regulated by the Pension Rules
which confer a statuary right in the
beneficiary eligible to the same."

20. The cases relied upon by the
learned Counsel for the petitioner do not
apply to the facts of the present case and
the same do not deal with the effect of
Regulation 333 of the Army Regulations.

21. In view of the aforesaid
discussions, we do not find any illegality in
the order rejecting the claim of payment of
family pension to the petitioner. The writ
petition lacks merit and the same is
dismissed accordingly.
----------
(2025) 1 ILRA 800
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.01.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 17483 of 2024

Ashish Yadav ...Petitioner
Versus
Managing Director, U.P.S.R.T.C. & Ors.
 ...Respondents

Counsel for the Petitioner:
Nikhil Kumar, Vagish Yadav

Counsel for the Respondents:
Mritunjay Mohan Sahai, S.M. Mishra

A.
Service
Law
-
Compassionate
Appointment
-
U.P.
Recruitment
of
Dependents
of
Government
Servants
Dying-in-Harness
Rules,
1974
-
The
concept
of
compassionate
ground
appointments is a welfare measure taken
by
a
model
employer.
However,
an
unjustified
generous
approach
in
compassionate
ground
which
is
not
consistent with the applicable service
rules will confer benefit to underserving
and
ineligible
candidates,
and
simultaneously deny the rights and lawful
claims
of
eligible
and
meritorious
candidates from getting appointment to
government posts. Treating compassionate
ground appointments as an unconditional and
vested right and making it a source of
recruitment will shear the thin veil of legality
which protects such appointments from the vice
of unconstitutionality. The very concept of
compassionate ground will then be exposed to
the wrath of Articles 14, 15, 16 of the
Constitution of India. (Para 14)

B. The purpose of grant of compassionate
ground appointments can be subserved
and their constitutionality can be saved
only by strict compliance of the rules
governing the grant of compassionate
ground appointments. (Para 15)

Appointment on compassionate grounds
seeks to relieve the immediate financial
hardship faced by the dependants of the
deceased. It acts as an exception to
Articles 14 and 16 of the Constitution as
the
defendant
are
given
preferential
appointment
ahead
of
other
equally
meritorious candidates similarly placed
and hence it cannot be claimed as a right.
This appointment must be done in accordance
with the rules for such appointment. The
1 All. Ashish Yadav Vs. Managing Director, U.P.S.R.T.C. & Ors.
801
dependant seeking such appointment must be
eligible for such consideration and facing
financial hardship to the extent delineated by
the rules. (Para 18)

C. One of the mandatory prerequisites for
appointments on compassionate ground
as contemplated in the Uttar Pradesh
Recruitment
of
Dependents
of
Government Servants Dying-in-Harness
Rules, 1974 is that the application for
employment should be made within five
years from the date of death of the
government servant. However, the said
provision also empowers the St. Government to
dispense with or relax the aforesaid time limit in
appropriate cases. The said provision for
condonation of delay by the St. Government/
competent authority after due application of
mind to relevant facts is mandatory in nature.
Failure to condone the delay in making the
application for compassionate appointment by
the St. Government/competent authority after
due application of mind to relevant factors will
vitiate the appointment. (Para 21)

The
mandatory
prerequisite
of
condonation of delay in making the
application
for
compassionate
appointment by the competent authority
under the Dying-in-Harness Rules, 1974
has been violated. The appointment of the
petitioner as a contractual worker was not made
under
the
Dying-in-Harness
Rules,
1974.
Consequently the petitioner cannot be treated
as a regularly appointed employee and is not
entitled to benefits claimed by him. Further, the
petitioner cannot set up a claim for appointment
on compassionate ground at this belated stage
under the Dying-in-Harness Rules, 1974. (Para
29)

D. Appointments based on descent or claims
of appointment which rest on heredity, are
abhorred in the scheme of Articles 14, 15,
16 of the Constitution of India. Delay in
making a claim for compassionate ground
appointment dilutes the case of immediate
financial penury, and consequently negates the
entitlement for appointment on compassionate
ground. Appointments on compassionate
ground cannot wait for the claimants to
attain majority or to enable them to acquire
additional qualifications and get a better
deal in the said appointments. Infact, such
grounds militate against claim for appointments on
compassionate ground. (Para 23)

In the present case, the petitioner was a minor at
the time of the death of his father. No post could
have been reserved for him till he attained
majority. The delay of almost seven years in
making the application for appointment on
compassionate ground was never condoned by the
St. Government/competent authority under the
Dying-in- Harness Rules, 1974. (Para 28)

In the facts of this case,
contractual
employment of the said nature cannot be
converted into an appointment under the
Dying-in-Harness Rules, 1974. If this course
is made permissible it will become a novel
device to breach specific statutory provisions.
(Para 31)

Writ petition dismissed. (E-4)

Precedent followed:

1. Umesh Kumar Nagpal Vs St. of Har., (1994) 4
SCC 138 (Para 11)

2.
Director
of
Education
(Secondary
Vs
Pushpendra Kumar, (1980) 5 SCC 192 (Para 12)

3. Roopam Mishra Vs St. of U.P. & ors., Writ-A
No. 15512 of 2019 (Para 13)

4. Director of Treasuries in Karnataka & anr.Vs
Somyashree, Civil Appeal No. 5122 of 2021
(Para 16)

5. Ispita Chakrabarti Vs St. of W.B., (2018) 2
CAL LT 177 (HC) (Para 17)

6. Sri Bijon Mukherje Vs The St. of of W.B. &
ors., (2018) 3 CAL LT 136 (HC) (Para 18)

7. Ankita Saha & anr.Vs The St. of W.B. & ors.,
WPA No. 12287 of 2019 (Para 19)

8. Sanjay Kumar Vs St. of Bihar & ors., 2000 (7)
SCC 192 (Para 24)

9. Sonal Laviniya & anr.Vs U.O.I. & anr., 2003
(5) AWC 4070 (Para 25)
802 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Shiv Kumar Dubey Vs St. of U.P., 2014 (2)
ADJ 312 (Para 26)

Precedent distinguished:

Umesh Kumar Vs St. of U.P., 2017 (9) ADJ 327
(Para 30)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Counter affidavit filed by Shri
S.M.Mishra,
learned
counsel
for
the
respondents and the rejoinder affidavit filed
by Shri Nikhil Kumar, learned counsel for
the petitioner are taken in the record.

2. The petitioner claims that he is
entitled to regular appointment and salary
from the date of his appointment as a
contractual employee on 25.08.2014.

3. Shri Nikhil Kumar, learned
counsel assisted by Shri Vagish Yadav,
learned counsel for the petitioner contends
that the petitioner was appointed on
25.08.2014 as a contractual employee. In
fact his appointment was made under the
U.P.
Recruitment
of
Dependents
of
Government Servants Dying-in-Harness
Rules, 1974 (hereinafter referred to as
"Dying-in-Harness Rules, 1974"). Hence
he is entitled to regular appointment and
salary from the aforesaid date of his
appointment.

4. Per contra, Shri S.M.Mishra,
learned counsel for the respondents submits
that there was a delay of more than five
years on part of the petitioner in making an
application for grant of appointment on
compassionate ground. The delay has not
been condoned by the competent authority.
The appointment of the petitioner is not
made under the Dying-in-Harness Rules,
1974. The petitioner cannot be granted the
relief claimed by him.
5. Heard Shri Nikhil Kumar,
learned counsel assisted by Shri Vagish
Yadav, learned counsel for the petitioner
and Shri S.M.Mishra, learned counsel for
the respondents.

6. The admitted facts of the case
are these. The father of the petitioner died
in harness on 10.02.2006. The petitioner
turned 18 in the year 2013. He filed an
application for grant of appointment on
compassionate ground on 05.07.2013. The
appointments on compassionate ground in
the respondent-corporation are made under
the Dying-in-Harness Rules, 1974 as made
applicable to the respondent-corporation.
Admittedly, the said application was filed
more than five years after the death of the
father. The aforesaid delay of more than
five years has not been condoned by the
competent authority in the instant case as
contemplated in the Dying-in-Harness
Rules, 1974. The petitioner was appointed
as
a
contractual
employee
in
the
respondent-corporation on 25.08.2014.

7. The question that arises for
consideration in this writ petition is
whether
the
aforesaid
contractual
appointment of the petitioner was made
under the Dying-in-Harness Rules, 1974
and consequently the petitioner is liable to
be treated as a permanent employee with
effect from the date of his appointment as a
contractual employee on 25.08.2014?

8. Appointments to public posts,
government
services
and
to
various
instrumentalities of the State within the
meaning of Article 12 of the Constitution of
India are governed and regulated by
comprehensive provisions contained in the
Constitution. The constitutional scheme
envisages an open recruitment and a
transparent
procedure
which
enables
1 All. Ashish Yadav Vs. Managing Director, U.P.S.R.T.C. & Ors.
803
maximum participation from all the eligible
segments of the citizenry at large. The final
appointments are made after a fair selection
based on competitive merit. While making
the said appointments the reservation
policy or affirmative action under the
Constitution
for
representation
and
empowerment
of
backward
classes,
SCs/STs and other sections of the society
identified as per law have to be duly
adhered
to.
The
recruitment
and
appointment to government services and
government undertakings were examined
by constitutional Courts in the context of
Articles 14, 15 and 16 of the Constitution
of India. Holdings of the constitutional
Courts have irretrievably entrenched the
aforesaid
modes
and
procedures
for
appointments to posts in the government
and Article 12 instrumentalies in the body
of the constitutional law.

9. The compassionate ground
appointments to the contrary are not made
through a transparent and public process of
recruitment after inviting the applications
from the open market. The appointments on
compassionate ground entail deviation
from regular processes of recruitment and
other relaxations as well. Appointments
under the Dying-in-Harness Rules, 1974,
are
an
exception
to
the
aforesaid
constitutionally
mandated
scheme
for
appointments to posts in the government
and
in
government
undertakings.
Compassionate appointments emanate from
specific service rules holding the field and
rationalized by service law jurisprudence
evolved by Constitutional Courts.

10.

The
appointments
on
compassionate ground passed the test of
constitutional validity by a slender margin.
The
sole
justification
to
make
compassionate ground appointments is that
the dependants of the deceased employee
face unforeseen financial destitution after
the death of the latter and need urgent
succour. Compassionate appointments are
provided to the family to immediately tide
over the sudden financial crisis so caused
by the death of the employee. This feature
alone constituted the kin of a deceased
employee into one class and on this sole
footing the rationale of compassionate
ground appointments was justified by
Constitutional Courts.

11. The Supreme Court in Umesh
Kumar Nagpal Vs. State of Haryana1
explained the purpose of compassionate in
following terms:

"2.The question relates to
the considerations which should
guide while giving appointment in
public services on compassionate
ground. It appears that there has
been a good deal of obfuscation on
the issue. As a rule, appointments
in the public services should be
made strictly on the basis of open
invitation of applications and merit.
No other mode of appointment nor
any
other
consideration
is
permissible.
Neither
the
Governments
nor
the
public
authorities are at liberty to follow
any other procedure or relax the
qualifications laid down by the
rules for the post. However, to this
general rule which is to be followed
strictly in every case, there are
some exceptions carved out in the
interests of justice and to meet
certain contingencies. One such
exception is in favour of the
dependants of an employee dying
in harness and leaving his family in
penury and without any means of
804 INDIAN LAW REPORTS ALLAHABAD SERIES
livelihood. 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 a
member of such family a post much
less a post for post held by the
deceased. What is further, mere
death of an employee in harness
does not entitle his family to such
source
of
livelihood.
The
Government or the public authority
concerned has to examine the
financial condition of the family of
the deceased, and it is only if it is
satisfied, that but for the provision
of employment, the family will not
be able to meet the crisis that a job
is to be offered to the eligible
member of the family. The posts in
Classes III and IV are the lowest
posts in non-manual and manual
categories and hence they alone can
be
offered
on
compassionate
grounds, the object being to relieve
the
family,
of
the
financial
destitution and to help it get over
the emergency. The provision of
employment in such lowest posts
by making an exception to the rule
is justifiable and valid since it is
not discriminatory. The favourable
treatment given to such dependant
of the deceased employee in such
posts has a rational nexus with the
object sought to be achieved, viz.,
relief against destitution. No other
posts are expected or required to be
given by the public authorities for
the purpose. It must be remembered
in this connection that as against
the destitute family of the deceased
there are millions of other families
which are equally, if not more
destitute. The exception to the rule
made in favour of the family of the
deceased
employee
is
in
consideration
of
the
services
rendered by him and the legitimate
expectations, and the change in the
status and affairs, of the family
engendered
by
the
erstwhile
employment which are suddenly
upturned."

12. A similar sentiment was
echoed by the Supreme Court in Director
of Education (Secondary) v. Pushpendra
Kumar2 :

"8.The object underlying a
provision
for
grant
of
compassionate employment is to
enable the family of the deceased
employee to tide over the sudden
crisis resulting due to death of the
bread-earner which has left the
family in penury and without any
means of livelihood. Out of pure
humanitarian
consideration
and
having regard to 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 for giving
gainful appointment to one of the
dependants of the deceased who
may
be
eligible
for
such
appointment. Such a provision
1 All. Ashish Yadav Vs. Managing Director, U.P.S.R.T.C. & Ors.
805
makes a departure from the general
provisions
providing
for
appointment
on
the
post
by
following a particular procedure.
Since such a provision enables
appointment being made without
following the said procedure, it is
in the nature of an exception to the
general provisions. An exception
cannot subsume the main provision
to which it is an exception and
thereby nullify the main provision
by taking away completely the
right
conferred
by
the
main
provision. Care has, therefore, to be
taken that a provision for grant of
compassionate employment, which
is in the nature of an exception to
the general provisions, does not
unduly interfere with the right of
other persons who are eligible for
appointment to seek employment
against the post which would have
been available to them, but for the
provision
enabling
appointment
being made on compassionate
grounds of the dependant of a
deceased employee......."

13. This Court in Roopam Mishra
v. State of U.P. and 4 others3 held as
under:

"16.
The
purpose
of
compassionate
appointments
provides their justification. The
death of a bread winner forces the
family of the deceased into penury.
The immediacy of the financial
crisis creates the requirement for
urgent redressal. The concept of
compassionate
appointments
is
created only to enable the bereaved
family to tide over the immediate
financial crisis".
14. The concept of compassionate
ground appointments is a welfare measure
taken by a model employer. However, there
is a caution. An overliberal interpretation of
the
right
to
the
appointments
on
compassionate
ground
will
open
a
floodgate of such appointments and turn
them into a veritable source of recruitment.
An unjustified generous approach in
compassionate
ground
which
is
not
consistent with the applicable service rules
will confer benefit to underserving and
ineligible candidates, and simultaneously
deny the rights and lawful claims of
eligible and meritorious candidates from
getting appointment to government posts.
Treating
compassionate
ground
appointments as an unconditional and
vested right and making it a source of
recruitment will shear the thin veil of
legality which protects such appointments
from the vice of unconstitutionality. The
very concept of compassionate ground will
then be exposed to the wrath of Articles 14,
15, 16 of the Constitution of India.

15. The purpose of grant of
compassionate ground appointments can be
subserved and their constitutionality can be
saved only by strict compliance of the rules
governing the grant of compassionate
ground appointments.

16. The Supreme Court in the
Director of Treasuries in Karnataka &
Anr.
v.
Somyashree4
emphatically
reiterated the well settled position of law of
making compassionate appointments in
conformity with the norms governing the
grant of said appointments by summarizing
the law as follows:

"7......(i)
that
the
compassionate appointment is an
exception to the general rule;
806 INDIAN LAW REPORTS ALLAHABAD SERIES
(ii) that no aspirant has a
right
to
compassionate
appointment;
(iii) the appointment to any
public post in the service of the
State has to be made on the basis of
the principle in accordance with
Articles
14
and
16
of
the
Constitution of India;
(iv)
appointment
on
compassionate ground can be made
only on fulfilling the norms laid
down by the State's policy and/or
satisfaction of the eligibility criteria
as per the policy;
(v) the norms prevailing on
the date of the consideration of the
application should be the basis for
consideration
of
claim
for
compassionate appointment."

17. The necessity to strictly adhere
to rules relating to compassionate grounds
was succinctly summarized by the Calcutta
High Court in Ipsita Chakrabarti v. State
of West Bengal5. Ipsita Chakrabarti (supra)
upon consideration of holdings of various
Constitutional Courts held:

"(a)
Appointment
on
compassionate
grounds
is
an
exception craved out to the general
rule that recruitment to public
services is to be made in a
transparent
and
accountable
manner providing opportunity to all
eligible persons to compete and
participate in the selection process.
(b)
The
right
of
a
dependent of an employee who
died in harness for compassionate
appointment
is
based
on
the
scheme,
executive
instructions,
rules etc. framed by the employer
and there is no right to claim
compassionate appointment on any
other ground apart from the above
scheme conferred by the employer.
(c)
Appointment
on
compassionate ground is given only
for meeting the immediate hardship
which is faced by the family by
reason of the death of the bread
earner. When an appointment is
made on compassionate ground it
should be kept confined only to the
purpose it seems to achieve, the
idea being not to provide for
endless compassion.
(d)
Compassionate
appointment has to be exercised
only in warranting situations and
circumstances existing in granting
appointment and guiding factors
should be financial condition of the
family."

18. Furthermore, the Calcutta High
Court in Sri Bijon Mukherjee v. The
State of West Bengal and others6 again
stated what is by now the settled position of
law
that
the
appointments
on
compassionate ground must be made only
in consonance with the specific rules
applicable to the employee :

"26. After observing the
ratio
and
the
legal
positions
contended
by
the
Counsels
appearing on behalf of the parties
as well as the precedents examined
above, I am persuaded to opine that
appointment
on
compassionate
grounds
seeks
to
relieve
the
immediate financial hardship faced
by the dependants of the deceased.
It acts as an exception to Articles
14 and 16 of the Constitution as the
defendant are given preferential
appointment ahead of other equally
1 All. Ashish Yadav Vs. Managing Director, U.P.S.R.T.C. & Ors.
807
meritorious candidates similarly
placed and hence it cannot be
claimed as a right. With the object
of appointment on compassionate
grounds in mind, it is palpably
clear to me that this appointment
must be done in accordance with
the rules for such appointment. The
dependant
seeking
such
appointment must be eligible for
such
consideration
and
facing
financial hardship to the extent
delineated by the rules."

19. The judgment rendered by the
Calcutta High Court in Ipsita Chakrabarti
(supra) and Sri Bijon Mukherjee (supra)
were followed by the Calcutta High Court
in Ankita Saha and Anr. v. The State of
West Bengal and Ors7.

20. At this stage it would be
apposite to extract the relevant provisions
of the Uttar Pradesh Recruitment of
Dependents
of
Government
Servants
Dying-in-Harness
Rules,
1974
as
applicable to this case:

"Rule 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.
(3)
Every
appointment
made under sub-rule (1) shall be
subject to the condition that the
person appointed under sub-rule (1)
shall maintain other members of
the family of deceased Government
servant, who were dependent on the
deceased
Government
servant
immediately before his death and
are unable to maintain themselves.
808 INDIAN LAW REPORTS ALLAHABAD SERIES
(4)
When
the
person
appointed
under
sub-rule
(1)
neglects or refuses to maintain a
person to whom he is liable to
maintain under sub-rule (3), his
service may be terminated in
accordance with the Uttar Pradesh
Government Servant (Discipline
and Appeal)
Rules,
1999,
as
amended from time to time."

21. One of the mandatory
prerequisites
for
appointments
on
compassionate ground as contemplated in
the aforesaid Dying-in-Harness Rules, 1974
is that the application for employment
should be made within five years from the
date of death of the government servant.
However, the said provision also empowers
the State Government to dispense with or
relax the aforesaid time limit in appropriate
cases. The said provision for condonation
of delay by the State Government/
competent authority after due application of
mind to relevant facts is mandatory in
nature. Failure to condone the delay in
making the application for compassionate
appointment
by
the
State
Government/competent authority after due
application of mind to relevant factors will
vitiate the appointment.

22.

Rationale
for
strict
enforcement of the aforesaid provision for
condonation of delay by the competent
authority is supplied by good authorities in
point.

23. Appointments based on descent
or claims of appointment which rest on
heredity, are abhorred in the scheme of
Articles 14, 15, 16 of the Constitution of
India. Delay in making a claim for
compassionate ground appointment dilutes
the case of immediate financial penury, and
consequently negates the entitlement for
appointment on compassionate ground.
Appointments on compassionate ground
cannot wait for the claimants to attain
majority or to enable them to acquire
additional qualifications and get a better
deal in the said appointments. Infact, such
grounds
militate
against
claim
for
appointments on compassionate ground.

24. The Supreme Court in the case
of Sanjay Kumar Vs. State of Bihar and
Others8
reiterated
the
purpose
of
compassionate ground appointments to tide
over the sudden crisis resulting from the
death of the earner in a family. While in the
same breath the reservation of a vacancy to
enable such person to attain majority was
negatived by the Supreme Court by holding
thus:

"3. We are unable to agree
with the submissions of the learned
Senior Counsel for the petitioner.
This Court has held in a number of
cases
that
compassionate
appointment is intended to enable
the
family
of
the
deceased
employee to tide over sudden crisis
resulting due to death of the
breadearner who had left the family
in penury and without any means of
livelihood. In fact such a view has
been expressed in the very decision
cited by the petitioner in Director
of
Education v. Pushpendra
Kumar [(1998) 5 SCC 192 : 1998
SCC (L&S) 1302 : (1998) 2 Pat
LJR 181] . It is also significant to
notice that on the date when the
first application was made by the
petitioner
on
2-6-1988,
the
petitioner was a minor and was not
eligible for appointment. This is
conceded by the petitioner. There
1 All. Ashish Yadav Vs. Managing Director, U.P.S.R.T.C. & Ors.
809
cannot be reservation of a vacancy
till such time as the petitioner
becomes a major after a number of
years,
unless
there
are
some
specific provisions. The very basis
of compassionate appointment is to
see that the family gets immediate
relief."

25. A Division Bench of this Court
after citing authorities in point also
concluded that financial penury ceases to
exist in case an application was made long
years after the death of the employee in the
case of Smt. Sonal Laviniya and another
vs. Union of India and another9:

"38. The
purpose
of
providing such an employment has
been
to
render
the
financial
assistance to the family, which has
lost the bread earner immediately
after the death of the employee. If
the application has been filed after
expiry of 91⁄2 years the element of
immediate need stood evaporated
and there was no occasion for the
respondents to consider the case of
the petitioner for such a relief. The
observation made by the learned
Tribunal are in consonance with the
law laid down by the Hon'ble Apex
Court and no exception can be
taken out."

26. The need for strict compliance
of Dying-in-Harness Rules, 1974 and
consequences of delay in filing applications
for appointment under Dying-in-harness
Rules and allied issues were posed to a Full
Bench of this Court in the case of Shiv
Kumar Dubey Vs. State of U.P.10 For ease
of reference, the relevant parts of Shiv
Kumar Dubey (supra) are reproduced
hereunder:
"29. We now proceed to
formulate the principles which
must
govern
compassionate
appointment in pursuance of Dying
in Harness Rules:
(i)
A
provision
for
compassionate appointment is an
exception to the principle that there
must be an equality of opportunity
in matters of public employment.
The exception to be constitutionally
valid has to be carefully structured
and implemented in order to
confine compassionate appointment
to only those situations which
subserve the basic object and
purpose which is sought to be
achieved;
[emphasis supplied]
(ii) There is no general or
vested
right
to
compassionate
appointment.
Compassionate
appointment can be claimed only
where a scheme or rules provide for
such appointment. Where such a
provision
is
made
in
an
administrative scheme or statutory
rules, compassionate appointment
must fall strictly within the scheme
or, as the case may be, the rules;
(iii) The object and purpose
of
providing
compassionate
appointment is to enable the
dependent members of the family
of a deceased employee to tide over
the
immediate
financial
crisis
caused by the death of the breadearner;
[emphasis supplied]
(iv) In determining as to
whether the family is in financial
crisis, all relevant aspects must be
borne in mind including the income
of the family; its liabilities, the
terminal benefits received by the
810 INDIAN LAW REPORTS ALLAHABAD SERIES
family; the age, dependency and
marital status of its members,
together with the income from any
other sources of employment;
(v) Where a long lapse of
time has occurred since the date of
death of the deceased employee,
the sense of immediacy for seeking
compassionate appointment would
cease to exist and this would be a
relevant circumstance which must
weigh with the authorities in
determining as to whether a case
for the grant of compassionate
appointment has been made out;
[emphasis supplied]
(vi) Rule 5 mandates that
ordinarily,
an
application
for
compassionate appointment must
be made within five years of the
date of death of the deceased
employee. The power conferred by
the first proviso is a discretion to
relax the period in a case of undue
hardship and for dealing with the
case in a just and equitable manner;
(vii) The burden lies on the
applicant, where there is a delay in
making an application within the
period of five years to establish a
case on the basis of reasons and a
justification
supported
by
documentary and other evidence. It
is for the State Government after
considering all the facts to take an
appropriate decision. The power to
relax is in the nature of an
exception and is conditioned by the
existence
of
objective
considerations to the satisfaction of
the government;
[emphasis supplied]
(viii) Provisions for the
grant
of
compassionate
appointment do not constitute a
reservation of a post in favour of a
member of the family of the
deceased employee. Hence, there is
no general right which can be
asserted to the effect that a member
of the family who was a minor at
the time of death would be entitled
to
claim
compassionate
appointment
upon
attaining
majority. Where the rules provide
for a period of time within which
an application has to be made, the
operation of the rule is not
suspended during the minority of a
member of the family." (emphasis
supplied)."

27. While condoning the delay in
making of
application
for
grant
of
appointment under the Dying-in-Harness
Rules, 1974, the State Government (or the
competent authority) is an under a bounden
obligation of law to consider the matter in
light
of
the
aforesaid
holdings
of
constitutional courts.

28. The facts of the case
enumerated earlier may now be seen in
light of the authorities in point discussed
above. The petitioner was a minor at the
time of the death of his father. No post
could have been reserved for him till he
attained majority. The delay of almost
seven years in making the application for
appointment on compassionate ground was
never
condoned
by
the
State
Government/competent authority under the
Dying-in-Harness Rules, 1974.

29. The mandatory prerequisite of
condonation of delay in making the
application for compassionate appointment
by the competent authority under the
Dying-in-Harness Rules, 1974 has thus
been violated. The appointment of the
1 All. In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.
811
petitioner as a contractual worker
was not made under the Dying-in-Harness
Rules, 1974. Consequently the petitioner
cannot be treated as a regularly appointed
employee and is not entitled to benefits
claimed by him. Further, the petitioner
cannot set up a claim for appointment on
compassionate ground at this belated stage
under the Dying-in-Harness Rules, 1974.

30. Reliance placed on the
judgement rendered by this Court in
Umesh Kumar v. State of U.P.11 is
misconceived.
The
judgement
is
distinguishable on facts. In the case of
Umesh Kumar (supra) this Court has
specifically observed that the respondents
had not taken a stand that more than five
years had elapsed from the date of death of
his father. In the instant case the petitioner
has been non suited on the solely footing
that there was a delay of more than five
years in making the application for
appointment and that the delay has not been
condoned by the competent authority.
Furthermore, the judgement in Umesh
Kumar (supra) was rendered in the
context of a ban purportedly imposed on
appointments on compassionate ground by
the Government Order dated 11.07.2003.
The ban is not an issue in the instant case.

31. In the facts of this case,
contractual employment of the said nature
cannot be converted into an appointment
under the Dying-in-Harness Rules, 1974. If
this course is made permissible it will
become a novel device to breach specific
statutory provisions.

32. The Managing Director of the
UPSRTC shall cause an enquiry to be
conducted as to how appointments of this
nature are being made only as a device to
overreach and violate the provisions of the
Dying-in-Harness Rules, 1974. Appropriate
action will be taken thereafter as per law.

33. The writ petition is dismissed.
----------
(2025) 1 ILRA 811
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.01.2025

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE PANKAJ BHATIA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Reference No. 1 of 2024

In Re- Procedure To Be Followed In
Hearing Of Criminal Appeals ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Suo Moto, Apoorva Tewari, Ayush Tandon,
Alok Mishra, Nadeem Murtaza, Naved Ali,
Rajat Gangwar, S M Singh Royekwar, Vikas
Vikram Singh

Counsel for the Respondent:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 70, 71, 72, 73, 74,
75, 76, 77, 78, 79, 81, 86, 341, 349, 372,
374, 377, 378, 390 & 446 - Allahabad High
Court Rules, 1952 - Rule 18, 22 & 41 -
Criminal Reference - in an appeal against
acquittal while summoning the accused person
under Section 390 Cr.P.C. coercive process even
of the nature of bailable warrant or non-bailable
warrant may be issued against the appellant
having regard to the peculiar facts and
circumstances of each case but it may not be
construed to mean that in each and every
appeal against acquittal the accused person
must be summoned in variably by issuing
bailable or non-bailable warrants and in an
appropriate case summons may also be issued
and in appeal against conviction wherein an