# Avanesh Kumar v. The State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-09
- **Case number:** Writ-A No. 21525 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avanesh-kumar-v-the-state-of-u-p-ors-45647
- **Pages:** 8

## Headnote

C.S.C.

A.
Compassionate
Appointment
-
posthumous child right's does not
qualify for a minor and a member of
the deceased government servant's
family under the Rules of 1974 - not
entitle
for
compassionate
appointment
on
attainment
of
majority

Sub-rule (3) of Rule 5 of the Rules of
1974
further
clarifies
that
the
appointment by way of concession under
the Rules shall be granted to that person
of the family who shall maintain other
members of the family of the deceased
Government servant, as were dependent
on the deceased Government servant
immediately before his death and are
unable
to
maintain
themselves.
The
definition of a son under sub-rule (c) of
Rule 2 ex facie does not lend itself to a
construction that son would also include
a child posthumously born. It is intended
to take care of those members of the
family who were dependent on the
Government
servant,
when
he/she
passed away in harness. (para 9)the
welfare measure under the Rules of
1974, though construed liberally in case
of members of the deceased's family who
have not been able to tide over the
financial
crisis
till
a
minor
attains
majority and applies under the Rules, in
the opinion of this Court, cannot be
stretched to a limit where an unborn
child is also to be granted a right to
apply under the Rules of 1974. The right
if granted would be too remote. Also, a
compassionate appointment under the
Rules of 1974 is in the nature of a
concession, and while full effect is to be
given to its provisions by extending the
concession to those who are eligible
under the provisions, its benefits cannot
be extended, founded on doctrines of
property laws, that essentially govern
rights
to
matters,
like
inheritance,
disposition in the sphere of private law.
(para 10)
Writ Petition Rejected.

List of cases cited

## Text

1218 INDIAN LAW REPORTS ALLAHABAD SERIES
powers, including administrative powers,
conferred in terms of a statutory provision.

21. Delegation of an administrative
power is permissible when the relevant
law permits the same and statutes
frequently make a provision enabling the
authority on which powers are conferred in
the first instance to delegate the same to
subordinate officers.

22. An order of delegate, when
delegation is made as authorised by the
statute, is to be treated for all intents and
purposes as an order of the authority itself.

23. The Rules, 1991 are of a
statutory nature, and as per the provisions
under Rule 17(1)(a) thereof the power to
place under suspension a Police Officer of
a subordinate rank against whose conduct
an enquiry is contemplated, or is pending,
having been conferred on the appointing
authority, in his discretion, the same is
normally to be exercised by the said
authority
itself.
However,
the
Rule
expressly permits the exercise of the
aforementioned power of suspension by
any other authority not below the rank of
Superintendent of Police who has been
authorised by the appointing authority in
this behalf, and in view thereof the
exercise of the power by the authority who
has been granted authorisation by the
appointing authority would also be a valid
exercise of power conferred under the
Rules, 1991.

24. In the instant case the power
of authorisation contemplated under
Rule
17(1)(a)
having
duly
been
exercised by the appointing authority
i.e. the Deputy Inspector General of
Police and the necessary authorisation
having
been
issued
to
the
Superintendent of Police for exercising
the aforesaid power, the order of
suspension which has been passed by
the
Superintendent
of
Police,
Chitrakoot cannot be said to suffer
from want of authority and therefore
cannot be assailed on this ground.

25. Counsel for the petitioner, at
this stage, confines his prayer to a
direction to the respondent authorities
that
the
departmental
proceedings
which are contemplated pursuant to the
order of suspension may be concluded
expeditiously. He further undertakes
that the petitioner would cooperate
with the departmental proceedings.

26. Learned Standing Counsel
appearing for the State-respondents, on
the basis of his instructions, states that
the
departmental
proceedings
in
accordance with the procedure under
Rule 14(1) have already been initiated
and the same would be completed as
per the Rules, 1991.

27. Having regard to the facts of
the case the writ petition is disposed of
with an observation that the respondent
authorities would proceed with the
matter and endeavour to conclude the
departmental
proceedings
expeditiously,
preferably
within
a
period of six months from the date of
presentation of a certified copy of this
order, provided that the petitioner
cooperates with proceedings.
----------
(2020)02ILR A1218

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE
2 All. Avanesh Kumar Vs. TheState of U.P. & Ors.
1219
THE HON'BLE J.J. MUNIR, J.

Writ-A No. 21525 of 2019

Avanesh Kumar ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devesh Mishra, Sri Vijay Gautam, Sri
Atipriya Gautam, Sri Vinod Kumar Mishra

Counsel for the Respondents:
C.S.C.

A.
Compassionate
Appointment
-
posthumous child right's does not
qualify for a minor and a member of
the deceased government servant's
family under the Rules of 1974 - not
entitle
for
compassionate
appointment
on
attainment
of
majority

Sub-rule (3) of Rule 5 of the Rules of
1974
further
clarifies
that
the
appointment by way of concession under
the Rules shall be granted to that person
of the family who shall maintain other
members of the family of the deceased
Government servant, as were dependent
on the deceased Government servant
immediately before his death and are
unable
to
maintain
themselves.
The
definition of a son under sub-rule (c) of
Rule 2 ex facie does not lend itself to a
construction that son would also include
a child posthumously born. It is intended
to take care of those members of the
family who were dependent on the
Government
servant,
when
he/she
passed away in harness. (para 9)the
welfare measure under the Rules of
1974, though construed liberally in case
of members of the deceased's family who
have not been able to tide over the
financial
crisis
till
a
minor
attains
majority and applies under the Rules, in
the opinion of this Court, cannot be
stretched to a limit where an unborn
child is also to be granted a right to
apply under the Rules of 1974. The right
if granted would be too remote. Also, a
compassionate appointment under the
Rules of 1974 is in the nature of a
concession, and while full effect is to be
given to its provisions by extending the
concession to those who are eligible
under the provisions, its benefits cannot
be extended, founded on doctrines of
property laws, that essentially govern
rights
to
matters,
like
inheritance,
disposition in the sphere of private law.
(para 10)
Writ Petition Rejected.

List of cases cited

1. State of U.P. and ors V. Antariksha
Singh 2019 (7) ADJ 685(DB)

2. Sudhir Kumar Mishra V. State of U.P.
and ors 2016 (8) ADJ 639(DB) (LB)

3. Vimla Srivastava and ors V. State of
U.P. and ors 2016 (1) ADJ 21

4. Priyesh Vasudevan V. Shameena P. &
ors. 2005 SCC OnLine Ker 718 : 2006 Lab
IC 303

5. State of Kerala & ors V. Priyesh
Vashudevan Civil ppeal No. 5203 of 2010
(followed)

(Delivered by Hon'ble J.J. Munir, J.)

1.

The
petitioner
claims
compassionate appointment under the
Uttar Pradesh Recruitment of Dependents
of Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as the
"Rules of 1974"). The petitioner's father
died on 26.03.1987 in a road accident
while on duty. The petitioner is a
posthumous child, who was in his mother's
womb at the time when his father passed
away. He has come up with a claim
seeking
compassionate
appointment
through an application that his mother has
made under the Rules of 1974 in the year
2003. This claim of the petitioner has been
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected by the impugned order dated
11.10.2018
passed
by
the
State
Government on ground that it has been
preferred with a delay of 11 years, 10
months and 03 days, reckoning the delay
after giving benefit of relaxation of five
years provided under the Rules of 1974.

2. Heard Sri Devesh Mishra, learned
counsel for the petitioner, and Sri Sharad
Chandra Upadhyay, learned State Law
Officer on behalf of all the respondents.

3. Learned counsel for the petitioner
has submitted that the delay is not an
absolutely disabling feature in case of
minors and has placed reliance upon a
decision of a Division Bench of this Court
in State of U.P. and others v. Antariksha
Singh, 2019 (7) ADJ 685 (DB). He has
referred to Paragraphs- 10, 11 and 12 of
the report in State of U.P. and others v.
Antariksha Singh ( supra) which read as
under:

"10. In the instant matters, if no
claim is made by the respondent-petitioner
for
invoking
relaxation
clause
by
satisfying requirements of second proviso,
then there is no need to forward the same
to the State Government to consider the
case in light of first proviso to Rule 5 of
the Rules of 1974.

11. At this juncture, it would also
be appropriate to state that while
considering the case of undue hardship
several factors are required to be kept in
mind including economic status of the
family, the term of relaxation desired and
the stage on which relaxation is claimed.

12. As already stated, learned
single Bench has directed to forward the
case of the respondent-petitioner to
examine undue hardship without arriving
at the conclusion that whether any
relaxation is claimed by her or not by
pleading the undue hardship."

4. Further reliance has been placed
on another Division Bench decision of this
Court in Sudhir Kumar Mishra v. State
of U.P. and others, 2016 (8) ADJ 639
(DB) (LB). On the principles laid down in
this case, the learned counsel for the
petitioner has laid particular emphasis,
inasmuch as it deals with right of a minor
in the context of a belated claim. He has
referred to Paragraph nos. 21 and 22 of the
report in Sudhir Kumar Mishra (supra),
which read thus:

"21. In the instant case, the
petitioner submitted that when his father
died he was only 4 years old and his
mother informed the department that she
would make application in prescribed
from only when he attained majority. The
department negatived the representation in
this
matter
taking
stand
that
the
application
was
not
made
within
prescribed
period.
However,
the
petitioner's request for compassionate
appointment
was
made
soon
after
appellant attained majority. Under Rule 5
the time limit within which the dependant
of the deceased employee is to be
accommodated is fixed as five year. This
period can be extended under proviso to
Rule 5 where burden of proving the fact
that
compassionate
circumstances
continued to exist even till date was on the
petitioner
himself
which
he
has
successfully discharged in this case. There
is sufficient evidence of the petitioner
having aged and ailing mother, two
unmarried sisters, the family having
pension as the only source of livelihood,
the agricultural land being barren causing
nugatory income of about 9000/- per year,
which appeared quite insufficient to
2 All. Avanesh Kumar Vs. TheState of U.P. & Ors.
1221
enable the family to get over the financial
crisis which is being faced by the family
after the death of his father.

22. On the basis of objective
considerations founded on the disclosures
made by the petitioner in this case for
compassionate appointment and having
considered the reasons for the delay, we
are of the opinion that undue hardship
within the meaning of the first proviso to
Rule 5 of the Rules would be caused to the
petitioner and his family by the application
of the time limit of five years. The
expression 'undue hardship' has not been
defined in the Rules. Undue hardship
would
necessarily
postulate
a
consideration
of
relevant
facts
and
circumstances of the case. In view the
income of the family, its financial
condition, the extent of dependency and
marital
status
of
its
members,
its
liabilities, the terminal benefits received
by the family; the age, together with the
nugatory income from any other sources in
this case, we are of the view that the family
continues to suffer financial distress and
hardship occasioned by the death of the
bread winner. Considering the penurious
condition of the family, it appears to be
one of the rarest of rare cases where due
to exceptional circumstances the family
needs the extraordinary remedy to elate
the condition of family. It would be
appropriate to deal with the case of the
petitioner in a just and equitable manner."

5. It is urged that in the case of a
minor a liberal approach should be
adopted in construing delay and the period
of limitation under the proviso to Rule 5 of
the Rules of 1974, where relevant
circumstances continue to exist on the date
the petitioner moves for compassionate
appointment. It must be remarked that in
Sudhir Kumar Mishra (supra), there
were facts to show that the applicant for
compassionate appointment had an aged
and ailing mother and two unmarried
sisters, pension was the only source of
livelihood and the agricultural land was
non productive. It was concluded that
these features showed that the family had
not tided over the financial crisis that they
had thrown into on account of sudden loss
of the bread winner.

6. Sri Sharad Chandra Upadhyay,
learned Counsel appearing for the State
has opposed the motion to admit this
petition to hearing. He submits that a bare
perusal of the definition of 'family' in subRule (c) of Rule 2 of the Rules of 1974,
talks of dependents of a Government
servant under dying-in-harness. It does not
expressly or by necessary intendment,
refers to an unborn child to be included in
the definition of 'family'.

7. This Court has given a thoughtful
consideration to the matter. Here, a very
different issue arises under the Rules of
1974. Rule 5 of the Rules of 1974, as is
material for the present case, is extracted
below:

"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
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
application for the purpose, 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) ...

....
...

(ii) ...

....
...

(iii) ...

....
...

(2) ***
***
***

(3) Every appointment 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.

(4) ***
***
***"

(Emphasis by Court)

8. Likewise, under Rule 2(c) the term
'family' has been defined as follows:

"2. Definitions.--In these rules,
unless the context otherwise requires--

(a) ***
***
***

(b) ***
***
***

(c) "family" shall include the
following
relations
of
the
deceased
Government servant:

(i) wife or husband;

(ii) sons/adopted sons;

(iii)
unmarried
daughters,
unmarried adopted daughters, widowed
daughters and widowed daughter-in-law;

(iv)
unmarried
brothers,
unmarried sisters and widowed mother
dependant on the deceased Government
servant, if the deceased Government
servant was unmarried;

(v) aforementioned relations of
such missing Government servant who has
been declared as "dead" by the Competent
Court:

Provided
that
if
a
person
belonging to any of the abovementioned
relations of the deceased Government
servant is not available or is found to be
physically and mentally unfit and thus
ineligible for employment in Government
service, then only in such situation the
word "family" shall also include the
grandsons and the unmarried grand
daughters of the deceased Government
servant dependent on him."

9. A perusal of the right, which a
member of the family of the deceased to
compassionate
appointment
has
been
given by Rule 5 of the Rules of 1974,
makes it clear that it is a member of his
family
who
is
entitled
to
claim
compassionate appointment when the
deceased, who is in harness and a
Government employee, suddenly passes
away. Sub-rule (3) of Rule 5 of the Rules
of
1974
further
clarifies
that
the
appointment by way of concession under
the Rules shall be granted to that person of
the family who shall maintain other
members of the family of the deceased
Government servant, as were dependent on
the
deceased
Government
servant
immediately before his death and are
unable to maintain themselves. The
'family' has been defined under sub-rule
(c) of Rule 2 of the Rules of 1974 to mean
wife or husband, sons including adopted
sons, unmarried daughters, unmarried
adopted daughters, widowed daughters
and
widowed
daughter-in-law.
Now,
married daughters and married adopted
daughters would also be included within
the definition of 'family' in view of the
decision of this Court in Vimla Srivastava
2 All. Avanesh Kumar Vs. TheState of U.P. & Ors.
1223
and others vs. State of U.P. and others,
2016(1)ADJ21. In the said decision, this
Court has held the qualification about
daughters or adopted daughters being
'unmarried' is discriminatory and violative
of Articles 14 and 15 of the Constitution.
Now, in the Rule, therefore, daughters and
adopted daughters are members of the
family, irrespective of their marital status.
Also included are unmarried brothers,
unmarried sisters and widowed mother
dependent on the deceased Government
servant, if the deceased Government
servant was unmarried. There is no one
else who has been held entitled. The
definition of a son under sub-rule (c) of
Rule 2 ex facie does not lend itself to a
construction that son would also include a
child posthumously born. It is intended to
take care of those members of the family
who were dependent on the Government
servant, when he/she passed away in
harness.

10. An unborn child does have rights
under laws relating to property because it
is said that an unborn child is en venture
sa mere; but, to extend to an unborn child
the right to compassionate appointment
would be contrary to the plain intendment
of the Rules of 1974. Even otherwise, the
welfare measure under the Rules of 1974,
though construed liberally in case of
members of the deceased's family who
have not been able to tide over the
financial crisis till a minor attains majority
and applies under the Rules, in the opinion
of this Court, cannot be stretched to a limit
where an unborn child is also to be granted
a right to apply under the Rules of 1974.
The right if granted would be too remote.
Also, a compassionate appointment under
the Rules of 1974 is in the nature of a
concession, and while full effect is to be
given to its provisions by extending the
concession to those who are eligible under
the provisions, its benefits cannot be
extended, founded on doctrines of property
laws, that essentially govern rights to
matters, like inheritance, disposition in the
sphere of private law. The principles
would have little application in laws
governing employment under the State,
that are essentially public law matters,
always to be guarded against a violation of
the
equality
clause
enshrined
under
Articles 14 and 16 of the Constitutiion.

11. In the opinion of this Court, an
extension of the welfare approach under
the Rules of 1974 to that limit would do
more harm than good to the rights of
citizen, who otherwise have a right to
consideration for appointment to posts
under the State in accordance with the
recruitment rules, postulating equality of
opportunity but no concession.

12. This question arose before a
Division Bench of the Kerala High Court
in Priyesh Vasudevan vs. Shameena P.
& ors., 2005 SCC OnLine Ker 718 :
2006 Lab IC 303, where a contrary view
was taken regarding the rights of a
posthumous
child
to
compassionate
appointment under the Dying in Harness
Scheme in the State of Kerala, that was
extended to teachers of aided Schools
under Rule 51-B of Chapter XIV A of the
Kerala Education Rules. In the context of
the rights of a posthumous child to
compassionate appointment, it was held in
Priyesh Vasudevan (supra):

"31.
The
Compassionate
Employment Scheme recognizes the rights
of a minor to get employment assistance. A
minor is treated as a dependent under the
scheme. A child born one day before the
death of the Government servant would
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
also be treated as a dependent. The
scheme would apply in favour of the family
of the deceased Govern ment Servant if the
annual income of the family does not
exceed Rs. 1,50,000/-. De pendency is
determined mainly with refer ence to the
income of the family. No enquiry is
contemplated whether the minor was being
looked after by deceased Government
servant. The minor need not prove that he
was depending on his deceased father for
his
livelihood.
Instances
of
father
neglecting to maintain his minor children
are many. If we were to hold that such a
child is not dependent, it would be
disastrous and it would be against the
scheme itself. If so, how could we hold that
a child in the womb is not a dependent?
The rights of the child in the womb, in the
matter of succession, are well protected by
laws of the land. If so, how could it
justifiably be held that a subsequent born
child should suffer because of the calamity
of his father's death having taken place
before he was born? Is there any
difference, in the matter of dependency,
between a child born one day before and a
child born one day after the death of his
father or mother? The only answer would
be in the negative. It will not be altogether
out of context to note that in the matter of
dependency a Division Bench of this Court
in St. Ignatius High School v. State of
Kerala, I.L.R. (2005) 3 Kerala 666, has
held that a married daughter is also
entitled to be considered for being
appointed under the dying-in-harness
scheme.

32. With respect, we do not
agree with the view taken in AIR 1939
Lahore 290 and we accept the view taken
by the Calcutta High Court relied on the
decisions of the Madras, Bombay and
Allahabad High Courts. It is to be noted
that
a
provision
similar
to
the
''Explanation'
in
Section
6
of
the
Limitation Act, 1963 was not available in
the Indian Limitation Act, 1908.

33. Therefore, we are of the view
that a child in the womb would be a
''dependent' under the Scheme and that a
posthumous child is entitled to the benefit
of the Compassionate Employment Scheme
on his attaining majority, provided, the
application is filed within the period
provided in clause 19 of the scheme."

13. In Appeal by Special Leave from
the aforesaid decision of the Kerala High
Court, their Lordships of the Supreme
Court reversed the decision in Civil
Appeal No.5203 of 2010, State of Kerala
& ors. vs. Priyesh Vasudevan, decided
on 09.07.2010, holding thus:

"3. The subject matter of the writ
petition before the learned Single Judge
was whether an unborn child had a right
to be considered for appointment under
the Compassionate Employment Scheme
which was then applicable to teachers of
aided schools under Rule 51B of Chapter
XIVA of the Kerala Education Rules.

4. The Division Bench of the
High Court has gone on a tangent with
regard to the issue involved in the writ
appeal and has, on the other hand,
proceeded to lay emphasis on the question
of a right of an unborn child to succeed to
rights of property forgetting that the case
involved the question of appointment on
compassionate ground which is meant for
helping a immediate financial crisis. The
High Court has decided the matter on the
basis of the provisions of the Limitation
Act, the Hindu Succession Act and also the
Indian Succession Act, 1925, relating to
minors and unborn children.

5. Having regard to the accepted
principles relating to appointment on
2 All. Ravi Raj & Ors. Vs. State of U.P. & Ors.
1225
compassionate grounds, we are unable to
sustain the approach of the Division Bench
of the Kerala High Court and the
judgment of the Division Bench is,
therefore, set aside."(Emphasis by Court)

14. This Court is, thus, of opinion
that a posthumous child does not qualify
for a minor and a member of the deceased
Government servant's family under the
Rules of 1974, entitling him to be
considered
for
compassionate
appointment, once he attains majority.

15. In the result, this petition fails
and is dismissed. There shall be no order
as to costs.
----------
(2020)02ILR A1225

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

WRIT-A No. 26584 of 2011

Ravi Raj & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare, Sri
A.K. Rai, Sri Sanjeev Kumar

Counsel for the Respondents:
C.S.C.

A. Service Law- Pension - U.P. Retirement
Benefits Rules, 1961: Rule 2(3); General
Provident
Fund
(U.P.)
Rules,
1985
-
Petitioners who were initially selected in
2001, came to be appointed only in October
2006, on account of ensuing litigation, would
not be entitled to the benefits of Old Pension
Scheme which held the field till 01 April 2005.

B. The orders of appointment clearly provided
that they would come into effect from the
date
when
the
petitioners
join
their
respective posts. Once the petitioners had
accepted this stipulation in the appointment order
without demur or protest, it was not open for them
to thereafter and belatedly seek to claim benefits of
the Old Pension Scheme. (Para 11, 28)

C. A person who was not in service on a
particular day, cannot be treated in service
and seniority cannot be accorded to him. -
Petitioners could not claim any retrospective
conferral of benefits commencing from a period
even before they had entered service. The same
analogy is applied to their claim for coverage under
the Old Pension Scheme. (Para 14, 16)

D. The expression "entering services or
posts..." cannot be understood as referring to
or hinging upon something inchoate or
nebulous such as, selection or empanelment
of an incumbent to government service. The
Rule 2(3) clearly refers to entry into service as being
determinative factor. The mere fact that the process
of recruitment was initiated prior thereto can be of
no assistance to the cause of being governed by the
Old Pension Scheme. (Para 21, 27)

Writ petition dismissed. (E-4)

Precedent followed:

1. Sevandra Singh and others Vs. State of U.P.
and others, Civil Misc. Writ Petition No. 21069
of 2003 (Para 4, 14)

2. Satyesh Kumar Mishra and others Vs. State
of U.P. and others, 2016 (6) ADJ 808 {LB}
(Para 13, 17, 18, 19, 20, 22, 25, 26)

3. Ram Nakul Vs. State of U.P. and others, Writ
A No. 15392 of 2012 decided on 03.09.2019
(Para 12, 13, 18, 19, 21, 25, 26)

4. Bharat Yadav Vs. State of U.P. and 3 others,
Writ A No. 16838 of 2019 decided on
23.10.2019 (Para 18, 19, 21, 25, 26)