# Bhupendra Kumar Kushwaha v. State of U.P. and others

- **Citation:** (2006) 1 ILRA 100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-16
- **Case number:** Civil Misc. Writ Petition No. 2605 of 2006
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhupendra-kumar-kushwaha-v-state-of-u-p-and-others-40638
- **Pages:** 3

## Headnote

Constitution
of
India,
Act
226Compassionate Appointment-son of the
predeceased son-dependent of grand
father
entitled
for
compassionate
appointment-despite
of
repeated
directions-officer not cared even to have
a glance of judgment-practice adapted
by
the
officer
concern
heldreprehensible and deprecated-direction
issued to implement the judgment within
3 weeks.

Held: Para 8 & 9

The law, therefore, was settled by this
court that the son of a predeceased son,
who was dependent on his grand father
was
entitled
to
be
considered
for
compassionate appointment in the event
the grand father died in harness. There is
absolutely no ambiguity in the law laid
down by this court in the division Bench
judgment referred to herein above,
which is binding on me and was more
binding on the officer concerned, who
has passed this order.

The impunity with which the impugned
order was passed clearly indicates that
the officer concerned did not even care
to have a glance of the judgment of the
1 All] Bhupendra Kumar Kushwaha V. State of U.P. and others
101
Division Bench, which reference has
been made in the direction of this court
contained in the order dated 9.8.2005.
The aforesaid procedure adopted by the
respondent no. 2 is reprehensible and is
deprecated.
Case law discussed:
1999 ACJ (I) 545
1999 ACJ (2) 1429 relied on

(Delivered Hon'ble A.P. Sahi, J.)

## Text

100 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
11. In view of the proposition of law
laid down by the Supreme Court in the
aforesaid decisions, we are of the opinion
that
the
very
foundation
of
the
appointment of the petitioner was void
and
non-est
and,
therefore,
the
Disciplinary Authority was justified in
imposing the punishment.

12. Learned counsel for the
petitioner
then
submitted
that
the
petitioner was not given any opportunity
to cross examine the witnesses produced
on behalf of the Bank. We are not
inclined to accept this contention. In the
first instance, as the petitioner earlier
remained absent during the enquiry it was
held ex-parte. The petitioner, however,
submitted a representation before the
Disciplinary Authority with the clear
stipulation that he would not crossexamine the witnesses already examined
by the Bank. The petitioner, therefore,
waived his right to cross-examine the
witnesses. We further find that the
Enquiry Officer has also recorded a
categorical finding that even after the
matter was reopened at the instance of the
Disciplinary Authority, the petitioner did
not express any desire to cross examine
the Management witnesses. In such
circumstances the contention of the
learned counsel for the petitioner cannot
be accepted.

13. For all the reasons stated above,
there is no merit in this petition. It is,
accordingly, dismissed.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2006

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

Civil Misc. Writ Petition No. 2605 of 2006

Bhupendra Kumar Kushwaha ..Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.K. Pandey

Counsel for the Respondents:
Sri P.D. Tripathi
S.C.

Constitution
of
India,
Act
226Compassionate Appointment-son of the
predeceased son-dependent of grand
father
entitled
for
compassionate
appointment-despite
of
repeated
directions-officer not cared even to have
a glance of judgment-practice adapted
by
the
officer
concern
heldreprehensible and deprecated-direction
issued to implement the judgment within
3 weeks.

Held: Para 8 & 9

The law, therefore, was settled by this
court that the son of a predeceased son,
who was dependent on his grand father
was
entitled
to
be
considered
for
compassionate appointment in the event
the grand father died in harness. There is
absolutely no ambiguity in the law laid
down by this court in the division Bench
judgment referred to herein above,
which is binding on me and was more
binding on the officer concerned, who
has passed this order.

The impunity with which the impugned
order was passed clearly indicates that
the officer concerned did not even care
to have a glance of the judgment of the
1 All] Bhupendra Kumar Kushwaha V. State of U.P. and others
101
Division Bench, which reference has
been made in the direction of this court
contained in the order dated 9.8.2005.
The aforesaid procedure adopted by the
respondent no. 2 is reprehensible and is
deprecated.
Case law discussed:
1999 ACJ (I) 545
1999 ACJ (2) 1429 relied on

(Delivered Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
petitioner and learned standing counsel
and Sri P.D. Tripathi for the respondents
no. 1,2 and 3.

2. The goal of providing cheap and
expeditious justice to the citizens of the
State by this court is being thwarted,
which is evident from the facts of this
case.
The
respondent
no.
2
was
commanded by this court vide judgment
dated 25.4.2005 to consider the claim of
the
petitioner
for
appointment
on
compassionate basis after the death of his
grand father in view of the ratio of the
decision of this court in Rajendra Kumar
Vs. State of U.P. reported in 1999 A.C.J.
(1) 545. The matter was examined by the
respondent no. 2 and the claim of the
petitioner was rejected on 20.7.2005.

3. The ground for rejection is that a
grand
son
is
not
entitled
for
compassionate appointment, in view of
the definition contained in relevant
provisions for extending such benefits.
The authority concerned has referred to
the same in the order dated 20.7.2005.

4. The petitioner was compelled to
challenge the said order once again by
filing writ petition No. 54764 of 2005 and
this court after examining the facts found
that the authority had passed the order
dated
20.7.2005
in
breach
of
the
directions issued by this court. The order
dated 20.7.2005 was accordingly quashed
and the respondent no. 2 was again
directed to decide the claim of the
petitioner keeping in view the ratio of the
decision of Rajendra Kumar (supra)

5. The impugned order once again
repeats the same mistake and the same
opinion has been expressed by the
authority stating therein that the petitioner
being the grand son of the deceased
employee
was
not
entitled
for
compassionate appointment.

6. It is unfortunate that the officer of
the rank of the Director has chosen
conveniently to avoid the orders of this
court on two occasions.

7. Before dealing with the same, it
would be appropriate to deal with the law
on the issue as has been with in the
judgment, under which the respondent
no.2
was
commanded
to
provide
compassionate
appointment
to
the
petitioner. In the case of Rajendra Kumar,
a learned Single Judge of this court held
that the son of a predeceased son was
entitled
to
be
considered
for
compassionate appointment keeping in
view the fact that he was entirely
dependent on his grand father and the
claim was founded on destitution and in
the circumstances that the sole bread
winner of the family has expired in
harness. The definite clause contained in
clause 2 (c) of the Rules was interpreted
as being inclusive of grand son. The said
judgment of the learned Single Judge was
challenged by the State in special Appeal
No. 557 of 1999 and the Special appellate
Bench upheld the decision of the learned
Single Judge after dealing with the issues
102 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
elaborately, which decision is reported in
1999 A.C.J. (2) 1429.

8. The law, therefore, was settled by
this court that the son of a predeceased
son, who was dependent on his grand
father was entitled to be considered for
compassionate appointment in the event
the grand father died in harness. There is
absolutely no ambiguity in the law laid
down by this court in the division Bench
judgment referred to herein above, which
is binding on me and was more binding
on the officer concerned, who has passed
this order.

9. The impunity with which the
impugned order was passed clearly
indicates that the officer concerned did
not even care to have a glance of the
judgment of the Division Bench, which
reference has been made in the direction
of this court contained in the order dated
9.8.2005.
The
aforesaid
procedure
adopted by the respondent no. 2 is
reprehensible and is deprecated.

10. Learned standing counsel could
not successfully defend the impugned
order in view of the decision of the
Division
Bench
of
this
court
and
therefore, has urged that appropriate
orders be passed and the matter be finally
disposed of.

11. Keeping in view the facts and
circumstance, stated herein above and the
law applicable to the controversy, the
impugned order dated 13.12.2005 is
quashed with a direction to the Director of
Education Basis respondent no. 2 to issue
necessary directions for appointment of
the petitioner giving him the benefit of
compassionate appointment Rules in the
light of the observations made herein
above.

12. This order is being passed in
view of the fact that the respondent no. 2
ahs no where disputed the status of
destitution of the petitioner, who claims
himself to be solely dependent on his
grand father.

13. The writ petition accordingly
succeeds and is allowed. The impugned
order dated 13.12.2005 Annexure VIII to
the writ petition, is quashed and the
respondents 2 and 3 are directed to
implement this judgment within three
weeks from today.

14. With the aforesaid directions, petition
is disposed of.
Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2005

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 54962 of 2005

Bina Pandey

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

Counsel for the Petitioner:
Sri V.K. Singh
Sri Pradeep Kumar Pandey

Counsel for the Respondents :
S.C.

Constitution
of
India,
Art.
226appointment on deputation-Legal Right
of such appointee-explained-petitioner
working as health visitor-under chief
medical officer-by order dated 8.2.2005
sent on deputation to work in rural
Development authority for 3 years-by