# Ashok Kumar Asthana v. State of U.P. & Ors

- **Citation:** Service Bench No. 1307 of 2006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-23
- **Case number:** Service Bench No. 1307 of 2006
- **Bench:** Devi Prasad Singh, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-asthana-v-state-of-u-p-ors-42896
- **Pages:** 4

## Headnote

Constitution of India-Art. 226- Petitioner
working
as
Executive
Engineer-
compassionate appointment given-to the
dependent of work change employeefollowing the direction of Single JudgeSubsequently by full Bench decisionearlier
judgment
set-s-side-whether
such conduct of petitioner termed as
mis-conduct?-held-"No'_enquiry
officer
totally
oversighted
this
aspectpunishment order quashed.

Held: Para-7
Thus, earlier judgment relied upon by
the petitioner has been overruled by the
Full Bench of this Court. But the facts
remains that the petitioner has acted in
pursuance of earlier judgment of this
Court. A decision taken in pursuance of
judgment of this Court shall not be
constituted
misconduct.
Though,
the
judgment relied upon by the petitioner,
has been overruled by the Full Bench but
since
at
the
time
when
the
compassionate appointment was made,
the petitioner had applied the existing
law, for which he cannot be faulted.

Held: Para-8
It
is
always
expected
from
the
Government servants that they shall
abide by the law laid down by the Courts
or higher judiciary. The decision taken in
compliance of judgment of High Courts
or
Supreme
Court,
shall
not
be
constituted misconduct even if the case
relied upon by the officer is overruled at
later stage. Accordingly, the punishment
awarded to the petitioner, seems to be
based on unfounded facts and more so
when the petitioner has not committed
any misconduct.

Case Law discussed:
[(2010) (28) LCD 1993]

## Text

1 All Shyoraj Singh and others Vs. Zahir Ahmad and others
499
questions are answered against plaintiffsappellants.

64. In the result, the appeal fails
and is accordingly dismissed with
costs throughout.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.04.2013

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE ASHOK PAL SINGH, J.

Service Bench No. 1307 of 2006

Ashok Kumar Asthana ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish Mathur, Sri Sandeep Tripathi

Counsel for the Respondents:
C.S.C.
Constitution of India-Art. 226- Petitioner
working
as
Executive
Engineer-
compassionate appointment given-to the
dependent of work change employeefollowing the direction of Single JudgeSubsequently by full Bench decisionearlier
judgment
set-s-side-whether
such conduct of petitioner termed as
mis-conduct?-held-"No'_enquiry
officer
totally
oversighted
this
aspectpunishment order quashed.

Held: Para-7
Thus, earlier judgment relied upon by
the petitioner has been overruled by the
Full Bench of this Court. But the facts
remains that the petitioner has acted in
pursuance of earlier judgment of this
Court. A decision taken in pursuance of
judgment of this Court shall not be
constituted
misconduct.
Though,
the
judgment relied upon by the petitioner,
has been overruled by the Full Bench but
since
at
the
time
when
the
compassionate appointment was made,
the petitioner had applied the existing
law, for which he cannot be faulted.

Held: Para-8
It
is
always
expected
from
the
Government servants that they shall
abide by the law laid down by the Courts
or higher judiciary. The decision taken in
compliance of judgment of High Courts
or
Supreme
Court,
shall
not
be
constituted misconduct even if the case
relied upon by the officer is overruled at
later stage. Accordingly, the punishment
awarded to the petitioner, seems to be
based on unfounded facts and more so
when the petitioner has not committed
any misconduct.

Case Law discussed:
[(2010) (28) LCD 1993]

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Instant writ petition under Article
226 of the Constitution of India, is against
the impugned order of punishment on the
ground
that
the
petitioner
made
appointment on the compassionate ground
of the dependant of deceased employee
who was on work charge basis. The order
of appointment was passed in pursuance
of U.P. Recruitment of Dependants of
Government Servants (Dying in Harness)
Rules, 1974 (in short the Rules).

2. It appears that the petitioner has
worked as Executive Engineer Tubewell
Division-III,
Gorakhpur
between
19.8.1996 to 24.9.1998. One Shiv Pujan
Sahny, a work charge employee, died in
harness. The petitioner appointed the
dependant of deceased work charge
employee, Smt. Kalawati on the post of
Peon in pursuance of the Rules. Treating
the appointment made by the petitioner as
illegal and as an incident of misconduct, a
chargesheet was served on him. In
500 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
pursuance of disciplinary proceeding, the
inquiry officer submitted report with the
finding that the petitioner has committed
misconduct
while
appointing
the
dependant of a deceased work charge
employee under the Rules. The finding
has been recorded by the inquiry officer
that the 1974 Rules are not applicable to
the dependant of deceased work charge
employee. Hence no appointment could
have been made.

3. While submitting reply to the
chargesheet, the petitioner set up a case
that he had made appointment in view of
law laid down by this Hon'ble Court in
Writ Petition No.3558 (S/S) of 1992
(Suresh Chandra Tiwari and others. Vs.
State of U.P. and others). In the case of
Suresh Chandra Tiwari (supra), this Court
has held that dependants of work charge
employees may be appointed under the
Rules. A copy of the reply dated
18.6.2995 submitted by the petitioner, has
been filed as Annexure No.8 to the writ
petition.

4. While assailing the impugned
order of punishment, learned counsel for
the petitioner submits that not only in the
case of Suresh Chandra Tiwari (supra) but
also in one other judgment of this Court
delivered in Writ Petition No.3105 (S/S)
of 2006: Gaurav Shukla. Vs. State of U.P.
and others, it has been held that
dependants of work charge employees
may be appointed under the Rules on
compassionate ground. Relevant portion
from the judgment of Gaurav Shukla is
reproduced as under:

"2. Learned counsel for the petitioner
has invited attention of this Court towards
the judgment reported in (2002) 1
UPLBEC 337-Santosh Kumar Mishra
Versus State of U.P. and others and one
another Full Bench Judgment of this
Court reported in 1999 ACJ 1070 Kalyan
Dutt Kaushik Versus D.M.Hardwar and
others and other unreported judgments
and orders of this Court passed in W.P.
No.306 (S/S) of 2006 decided on
12.01.2006, W.P.No.5209 (S/S) of 2004,
decided
on
17.09.2004
and
W.P.No.4840(S/S)/2002,
decided
on
05.09.2002.

From the perusal of the aforesaid
judgments and orders of this Court, it is
obvious that the dependants of the
workcharge employees shall also be
entitled
for
appointment
on
compassionate ground. While rejecting
petitioner's representation by the order
dated 25th of March, 2006, the sole
ground relied upon by the competent
authority is that the dependants of the
workcharge employees shall not be
entitled
for
appointment
on
compassionate ground. Prima-facie, the
impugned order passed by the opposite
parties does not seem to be sustainable
under
law.
While
deciding
the
controversy in question by the impugned
order, the competent authority had not
considered the law laid down in the case
of Santosh Kumar Mishra (supra) as well
as other cases referred hereinabove.
Accordingly, the impugned order is not
sustainable under the law and the writ
petition deserves to be allowed."

5. On the other hand, learned
standing counsel invited attention of this
Court to subsequent judgment of Full
Bench of this Court reported in [(2010)
(28) LCD 1993]: Pawan Kumar Yadav
Vs. State of U.P. and others. On account
of difference of opinion with regard to
rights of dependants of deceased work
1 All Ashok Kumar Asthana Vs. State of U.P. & Ors.
501
charge employees, for appointment on
compassionate ground, the matter was
referred to Full Bench. Para para 26. of
the judgment of Pawan Kumar Yadav
(supra) is reproduced as under:

"26. On the aforesaid discussion, and
in view of the law laid down in General
Manager, Uttaranchal Jal Sansthan Vs.
Laxmi Devi (Supra), we answer the
questions posed as follows:-

1. A daily wager and workcharge
employee employed in connection with
the affairs of the Uttar Pradesh, who is not
holding any post, whether substantive or
temporary, and is not appointed in any
regular vacancy, even if he was working
for more than 3 years, is not a
'Government servant' within the meaning
of Rule 2 (a) of U.P. Recruitment of
Dependants
of
Government
Servant
(Dying in Harness) Rules, 1974, and thus
his dependants on his death in harness are
not entitled to compassionate appointment
under these Rules.

2. The judgements in Smt. Pushpa
Lata Dixit Vs. Madhyamik Shiksha
Parishad and others, 1991 (18) ALR 591;
Smt. Maya Devi Vs. State of U.P. (Writ
Petition No.24231 of 1998 decided on
2.3.1998); State of U.P. Vs. Maya Devi
(Special Appeal No.409 of 1998); Santosh
Kumar Misra Vs. State of U.P. & Ors.,
2001 (4) ESC (Alld) 1615; and Anju
Misra Vs. General Manager, Kanpur Jal
Sansthan (2004) 1 UPLBEC 201 giving
benefit of compassionate appointment to
the dependants of daily wage and
workcharge employee have not been
correctly decided."

6. A plain reading of Full Bench
judgment supra) reveals that controversy
was referred on account of difference of
opinion
with
regard
to
rights
of
dependants of deceased work charge
employees. Full Bench overruled the
earlier judgment and held that the
dependants of work charge employees
shall not be entitled to appointment on
compassionate ground. It is held that
work charge employee does not hold any
post whether substantive or temporary
hence provisions contained in the Rules,
shall not be attracted. Relevant portion
from the judgment of Pawan Kumar
Yadav (supra) is reproduced as under:

"1. In Pawan Kumar Yadav V. State
of U.P. & Ors. the Court noticed
judgements of this Court taking divergent
views in the matter of recruitment of
dependants of government servants, dying
in harness, where the deceased employees
were either daily wagers or work-charge
employees, who were not regularly
appointed, and referred the following
questions for decision of larger bench:-

(1). Whether a daily wager and work
charge employee, employed in connection
with the affairs of Uttar Pradesh, who is
not holding any post whether substantive
or temporary is a 'Government Servant'
within the meaning of 2 Rule 2 (a) of U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974?

(2). Whether the judgement in Smt.
Pushpa Lata Dixit Vs. Madhyamik
Shiksha Parishad and others, 1991 (18)
ALR 591; Smt. Maya Devi Vs. State of
U.P. (Writ Petition No.24231 of 1998
decided on 2.3.1998); State of U.P. Vs.
Maya Devi (Special Appeal No.409 of
1998); Santosh Kumar Misra Vs. State of
U.P. & Ors., 2001 (4) ESC (Alld) 1615;
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
and Anju Misra Vs. General Manager,
Kanpur Jal Sansthan (2004) 1 UPLBEC
201, giving benefit of compassionate
appointment to the dependants of daily
wager and work charge employees, have
been correctly decided?

2. The questions were referred by
Hon'ble Mr. Justice A.N. Ray, the then
Chief Justice on 13.5.2005 to a Bench of
three judges. A large number of writ
petitions
and
special
appeals
filed
subsequently, on the same questions were
connected, with the reference. "

7. Thus, earlier judgment relied
upon by the petitioner has been overruled
by the Full Bench of this Court. But the
facts remains that the petitioner has acted
in pursuance of earlier judgment of this
Court. A decision taken in pursuance of
judgment of this Court shall not be
constituted
misconduct.
Though,
the
judgment relied upon by the petitioner,
has been overruled by the Full Bench but
since at the time when the compassionate
appointment was made, the petitioner had
applied the existing law, for which he
cannot be faulted.

8. It is always expected from the
Government servants that they shall abide
by the law laid down by the Courts or
higher judiciary. The decision taken in
compliance of judgment of High Courts
or Supreme Court, shall not be constituted
misconduct even if the case relied upon
by the officer is overruled at later stage.
Accordingly, the punishment awarded to
the petitioner, seems to be based on
unfounded facts and more so when the
petitioner
has
not
committed
any
misconduct.

9. It is unfortunate that the inquiry
officer has not recorded a finding with
regard to defence set up by the petitioner
regarding applicability of the judgment of
Gaurav Shukla and Suresh Chandra
Tiwari (supra), at the time when the
appointment was made. Such action on
the part of the inquiry officer, seems to be
not correct. In view of the above, the writ
petition deserves to be allowed.

10. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 31.1.2007, passed by the opposite
party No.1 as contained inAnnexure No.1
with all consequential benefits. The
petitioner shall be entitled for arrears of
salary with other service benefits which
shall be provided to him expeditiously
say, within a period of three months from
the date of receipt of a certified copy of
the present judgment. The revision of pay
scale shall also be done for the purpose of
pensionary benefits as well as arrears of
salary.

11. No orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2013

BEFORE
THE HON'BLE HON'BLE ANIL KUMAR,J.

Service Single No. 1458 of 2013

Shyam Nath Chaubey ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri S.N. Bhardwaj

Counsel for the Respondents:
C.S.C.