# Brijesh Kumar v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Writ A No. 13 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-v-state-of-u-p-ors-45689
- **Pages:** 4

## Headnote

Rules, 1974 -Impugned order-rejectingapplication
for
compassionate
appointment-on the ground of-petitioner
nominated in FIR-in an offence-involving
moral turpitude-in the absence of charge
sheet-this premise-illegal & non-tenablepresumption of innocence-not to be
displaced-rejection
based
on
future
happening-flawed.

B. Held, In the considered opinion of this
Court, therefore, the premise on which
the Superintendent of Police, Deoria has
proceeded to decline the petitioner's
claim for compassionate appointment, is
legally not tenable. The petitioner's claim
has to be judged at the time when it is
made and the circumstances of the
petitioner on that day. It cannot be
judged with reference to a conjecture
about a mere future happening as
indicated in the order of this Court dated
06.01.2020.
Moreover,
the
impugned
order also shows that the Superintendent
of Police has taken into consideration an
opinion
of
the
District
Government
Counsel
(Criminal),
Gorakhpur
dated
06.09.2019. A legal opinion may be
sought by any person in matters legal,
who is himself not trained in law or still if
he
desires
better
opinion.
But
an
authority charged with jurisdiction to
decide upon civil rights of parties has to
do so upon an independent application of
mind to the facts and evidence on record.
He cannot take into consideration, while
exercising
his
jurisdiction
to
decide
valuable rights of parties, such as the
right to appointment on compassionate
basis under the Rules, a legal opinion; if
he does, it would be extraneous and
irrelevant material. For this reason, also,
the impugned order passed by the
Superintendent of Police, Deoria, is found
to be flawed.

Writ Petition allowed. (E-8)

## Text

1 All. Brijesh Kumar Vs. State of U.P. & Ors.
547
judgment of acquittal. There is no
perversity, illegality and irregularity in the
impugned judgment. There is no ground
for grant of leave to appeal.

10. Accordingly, application to grant
leave for filing appeal, being devoid of
merits, stands rejected.
----------
(2020)1ILR 547

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 13 of 2020

Brijesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Satpal

Counsel for the Respondents:
C.S.C.

A. U.P. Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 -Impugned order-rejectingapplication
for
compassionate
appointment-on the ground of-petitioner
nominated in FIR-in an offence-involving
moral turpitude-in the absence of charge
sheet-this premise-illegal & non-tenablepresumption of innocence-not to be
displaced-rejection
based
on
future
happening-flawed.

B. Held, In the considered opinion of this
Court, therefore, the premise on which
the Superintendent of Police, Deoria has
proceeded to decline the petitioner's
claim for compassionate appointment, is
legally not tenable. The petitioner's claim
has to be judged at the time when it is
made and the circumstances of the
petitioner on that day. It cannot be
judged with reference to a conjecture
about a mere future happening as
indicated in the order of this Court dated
06.01.2020.
Moreover,
the
impugned
order also shows that the Superintendent
of Police has taken into consideration an
opinion
of
the
District
Government
Counsel
(Criminal),
Gorakhpur
dated
06.09.2019. A legal opinion may be
sought by any person in matters legal,
who is himself not trained in law or still if
he
desires
better
opinion.
But
an
authority charged with jurisdiction to
decide upon civil rights of parties has to
do so upon an independent application of
mind to the facts and evidence on record.
He cannot take into consideration, while
exercising
his
jurisdiction
to
decide
valuable rights of parties, such as the
right to appointment on compassionate
basis under the Rules, a legal opinion; if
he does, it would be extraneous and
irrelevant material. For this reason, also,
the impugned order passed by the
Superintendent of Police, Deoria, is found
to be flawed.

Writ Petition allowed. (E-8)

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

1. This writ petition is directed
against an order dated 11.11.2019 passed
by the Superintendent of Police, Deoria
whereby the petitioner's application for
compassionate appointment made under
the U.P. Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974, (for short, 'the Rules') has
been rejected.

2. When this matter came up first on
6th January, 2020 the following order was
made:

"The petitioner's application for
compassionate appointment under the
U.P. Dying in Harness Rules, 1974 have
548 INDIAN LAW REPORTS ALLAHABAD SERIES
been rejected by the impugned order dated
11.11.2019. The basis for the rejection
that is recorded is that the petitioner was
nominated in Case Crime No. 3 of 2015,
under Sections 147, 452, 323, 504, 427,
354
I.P.C.,
P.S.
Jhagaha,
district
Gorakhpur. The impugned order records
that during investigation, the police have
found the petitioner's nomination in the
crime to be incorrect and have not charge
sheeted him. It is then said in the
impugned order that the offence committed
by the petitioner is one that involves moral
turpitude and there is a possibility that the
petitioner may be summoned by the Court.
On
the
aforesaid
possibility,
the
petitioner's
claim
for
compassionate
appointment has been rejected. Also, the
Superintendent of Police, Deoria while
passing the said order has taken into
consideration an opinion of the District
Counsel (Criminal), Gorakhpur.

The submission of the learned
counsel for the petitioner is that the
impugned order is manifestly illegal and
takes into consideration irrelevant and
extraneous
material
besides
drawing
perverse conclusions. He submits that the
impugned order takes into consideration
an opinion submitted by the District
Government Counsel (Criminal) which is
absolutely extraneous material. It is
further submitted that the possibility that
the petitioner might be summoned in future
is nothing but a perverse conclusion. The
petitioner's claim cannot be rejected on
the conjecture of a mere future happening.
As of day, the petitioner has not been
charge sheeted and is not an accused
before the Court in any criminal case.

Sri
Indramani
Kushwaha,
learned Standing Counsel appearing on
behalf of respondent Nos. 1,2 and 3 will
seek instructions in the matter within three
days.

Lay this matter as fresh on
10.01.2020."

3. Today, on instructions received
from the Superintendent of Police, Deoria
the same stand has been reiterated, to wit,
that the petitioner being nominated in Case
Crime No. 3 of 2015 under Sections 147,
452, 323, 504, 427, 354 I.P.C., P.S.
Jhagaha, District Gorakhpur, he cannot be
offered compassionate appointment for
reason that though his complicity has not
been
found
by
the
police
during
investigation, there is a possibility that in
future he might be summoned by the
Court. In the instructions received from
the Superintendent of Police, it has also
been
said
that
the
view
of
the
Superintendent of Police is based on the
advice
received
from
the
District
Magistrate,Gorakhpur through a memo
dated 09.10.2019, where it is said that the
crime wherein the petitioner has been
nominated involves moral turpitude and
the possibility of the petitioner being
summoned in future by the Court where
other co-accused have been chargesheeted, cannot be ruled out. The District
Magistrate, Gorakhpur has opined that it
would
not
be
proper
to
offer
compassionate
appointment
to
the
petitioner. The Superintendent of Police
has further indicated his mind in the
written instructions that he has given to the
learned Chief Standing Counsel that he is
in agreement with the report (legal opinion
of the District Magistrate, Gorakhpur) and
after a deep and thoughtful consideration
of the matter he is of opinion that in view
of registration of a crime against the
petitioner he ought not to be offered
compassionate appointment.

4. The written instructions received
by the learned Standing Counsel are being
1 All. Brijesh Kumar Vs. State of U.P. & Ors.
549
retained on record and made part of it. The
learned
Standing
Counsel
does
not
propose to file a counter affidavit.

5. Admit.

6. The writ petition is being heard
forthwith.

7. Heard learned counsel for the
petitioner and Sri J.S. Bundela, learned
Standing Counsel appearing on behalf of
all the respondents.

8. It is no doubt true that the
petitioner was nominated in Case Crime
No. 3 of 2015 under Sections 147, 452,
323, 504, 427, 354 I.P.C. but during
investigation the petitioner has not at all
been found involved and has not been
charge-sheeted. Therefore, on the date
when the authority has considered the
petitioner's
claim
for
compassionate
appointment, the petitioner is not an
accused in the case. The possibility that
the petitioner may be summoned in future
by the Court where other nominated
accused would be tried, as they have been
charge-sheeted, is a mere conjecture.
There is no basis to it. It is not the
respondent's case that there is already an
application under Section 319 Cr.P.C.
made on behalf of the complainant
requesting the Court to summon the
petitioner who has been exculpated by the
police during the investigation. It would be
well to remember that there is a
presumption of innocence in favour of
every citizen and that presumption cannot
be displaced on assumptions of the
Superintendent of Police for the mere fact
that an FIR has been registered nominating
the petitioner which the police themselves
on investigation have found to be of no
worth vis-a-vis the petitioner.

9. In the considered opinion of this
Court, therefore, the premise on which the
Superintendent of Police, Deoria has
proceeded to decline the petitioner's claim
for compassionate appointment, is legally
not tenable. The petitioner's claim has to
be judged at the time when it is made and
the circumstances of the petitioner on that
day. It cannot be judged with reference to
a
conjecture
about
a
mere
future
happening as indicated in the order of this
Court dated 06.01.2020. Moreover, the
impugned order also shows that the
Superintendent of Police has taken into
consideration an opinion of the District
Government
Counsel
(Criminal),
Gorakhpur dated 06.09.2019. A legal
opinion may be sought by any person in
matters legal, who is himself not trained in
law or still if he desires better opinion.
But, an authority charged with jurisdiction
to decide upon civil rights of parties has to
do so upon an independent application of
mind to the facts and evidence on record.
He cannot take into consideration, while
exercising his jurisdiction to decide
valuable rights of parties, such as the right
to appointment on compassionate basis
under the Rules, a legal opinion; if he
does, it would be extraneous and irrelevant
material.
For
this
reason
also,
the
impugned
order
passed
by
the
Superintendent of Police, Deoria, is found
to be flawed.

10. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 11.11.2019 passed by the
Superintendent
of
Police,
Deoria,
Annexure 1 to the writ petition, is hereby
quashed.

11. The Superintendent of Police,
Deoria is ordered to decide the petitioner's
claim for compassionate appointment
550 INDIAN LAW REPORTS ALLAHABAD SERIES
under the Rules, strictly in accordance
with law bearing in mind what has been
said in this judgment, within a period of
one month positively from the date of
receipt of a certified copy of this order.

12. Let a copy of this order be
communicated to the Superintendent of
Police, Deoria by the office within a week.
----------
(2020)1ILR 550

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 53 of 2020

Satya Dev Yadav ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Om Prakash Rai

Counsel for the Respondents:
Sri Ankit Gaur (Standing Counsel), Sri C.B.
Tripathi (Standing Counsel)

A. U.P Basic Education Staff Rules, 1973Rule-5-Challenging-impugned Judgment
& order-on the ground of-availability of
statutory alternative remedy-of Appealagainst the punishment-stoppage of two
increments-no such remedy availabledirected to file representation-before the
appropriate
authority-order
stands
modified.

B. Held, we are of the view that appellant
is at liberty to make a representation
before the appropriate authority instead
of preferring a statutory appeal, as held
by
the
Learned
Single
Judge.
The
impugned order and judgment stand
modified accordingly.

Special Appeal disposed of. (E-8)

(Delivered by Hon'ble Biswanath
Somadder, J. & Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. The instant Special Appeal arises
in respect of a judgment and order dated
19th December, 2019, passed by a learned
Single Judge in Writ-A No. 20402 of 2019
(Satya Deo Yadav versus State of U.P. and
4 others). By the impugned judgement and
order, the learned Single Judge was
pleased to relegate the writ petitioner
before a statutory authority upon taking
into consideration the stand taken by the
learned standing counsel for the State of
Uttar Pradesh to the effect that there is a
statutory alternative remedy of appeal
under Rule 5 of the Uttar Pradesh Basic
Education Staff Rules, 1973, against the
order which was impugned before the writ
Court.

2. The appellant before us is the writ
petitioner.

3. According to the learned advocate
for the writ petitioner, the provisions of
Rule 5 of the 1973 Rules do not allow the
writ petitioner to prefer a statutory appeal
in the facts of the present case since the
punishment that has been imposed upon
the writ petitioner is stoppage of two
increments. At this stage, we must notice
Rule 5 of the Uttar Pradesh Basic
Education Staff Rules, 1973, which reads
as follows :-

"5. Appeal. - An appeal shall lie
from an order passed by the appointing
authority in respect of the posts mentioned