# Chandan Kumar v. Registrar, B.H.U. and another

- **Citation:** (2007) 2 ILRA 493
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-07-05
- **Case number:** Civil Misc. Writ Petition No.12112 of 2000
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandan-kumar-v-registrar-b-h-u-and-another-40949
- **Pages:** 3

## Headnote

Constitution
of
India,
Art.
226Compassionate
Appointment-claim
rejected on ground his mother is working
with Nagar Palika-petitioner's father
died in harness-as Sweeper in Physics
Department, Banaras Hindu UniversityNo
finding
recorded
regarding
dependency
of
petitioner
upon
his
father-held-order refusing appointmentsuffer from error apparent on the face of
record.

Held: Para 6

Considering the materials on record, it is
clear that Opp. Party did not record any
finding
on
relevant
points
whether
petitioner was dependent of deceased
employed. Refusal to appoint petitioner
regularly under the Dying in Harness
Rules was passed only on the ground
that
mother
of
petitioner
was
in
employment in Nagar Nigam, Varanasi
without making any enquiry whether
petitioner was dependent on deceased
employee, i.e. father or mother. The
impugned order passed by the Banaras
Hindu University suffers from error of
law apparent on the face of record. It is
also well settled that the appointment
under the Dying in Harness Rules could
only be made on regular basis and not on
Daily Wage or Adhoc basis.

## Text

2 All] Chandan Kumar V. Registrar, B.H.U. and another
493
from the date of receipt of certified copy
of this order by him. Revision allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2007

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No.12112 of 2000

Chandan Kumar

...Petitioner
Versus
Registrar, B.H.U., Varanasi and another

 Respondents

Counsel for the Petitioner:
Sri Akhileshwar Mishra
Sri R.K. Pandey
Sri Devendra Pandey
Sri Bimal Prasad

Counsel for the Respondents:
Sri V.K. Upadhyaya
Sri pankaj Naqvi

Constitution
of
India,
Art.
226Compassionate
Appointment-claim
rejected on ground his mother is working
with Nagar Palika-petitioner's father
died in harness-as Sweeper in Physics
Department, Banaras Hindu UniversityNo
finding
recorded
regarding
dependency
of
petitioner
upon
his
father-held-order refusing appointmentsuffer from error apparent on the face of
record.

Held: Para 6

Considering the materials on record, it is
clear that Opp. Party did not record any
finding
on
relevant
points
whether
petitioner was dependent of deceased
employed. Refusal to appoint petitioner
regularly under the Dying in Harness
Rules was passed only on the ground
that
mother
of
petitioner
was
in
employment in Nagar Nigam, Varanasi
without making any enquiry whether
petitioner was dependent on deceased
employee, i.e. father or mother. The
impugned order passed by the Banaras
Hindu University suffers from error of
law apparent on the face of record. It is
also well settled that the appointment
under the Dying in Harness Rules could
only be made on regular basis and not on
Daily Wage or Adhoc basis.

(Delivered by Hon'ble S.N. Srivastava. J.)

1. The matter relates to appointment
of petitioner under the Dying in Harness
Rules as Sweeper in Banaras Hindu
University.
Pl3titioner's
father-Ram
Sewak was working as Safaiwala in
Physics Department. He died in harness.
Petitioner being the son has applied for
appointment under the Dying in Harness
Rules after death of his father. He was
given temporary appointment on Daily
Wage basis. He moved an application for
substantive appointment by regularising
his services, but his claim for regular
appointment
was
denied
and
his
application was rejected by the impugned
order dated 23rd /24th August, 1994 on the
ground that petitioner's mother is in
employment of Nagar Nigam, Varanasi.

Heard learned counsel for the parties.

2. Learned counsel for the petitioner
urged that petitioner's father died in
'harness on 20.5.1994. He was appointed
on 14.6.1994 on Daily Wage basis
whereas he was entitled to get regular
appointment under the Dying in Harness
Rules. His claim for appointment under
the Dying in Harness Rules was rejected
on the ground that petitioner's mother was
in employment at that time. He further
urged that petitioner was dependent on his
father and his mother was residing
494 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
separately, but this aspect was not at all
considered by the University while
rejecting
his
claim
for
regular
appointment under the Dying in Harness
Rules. It is further urged that impugned
order otherwise also suffers from error of
law apparent on the face of record as it
was passed without application of mind
without considering that the petitioner
was dependent of father.

3. In reply to the arguments of
learned counse1 for the petitioner, Sri
Pankaj Naqvi, learned counsel appearing
on behalf of Banaras Hindu University,
urged that application of petitioner for
regular appointment under the Dying in
Harness Rules was rejected on 23rd
August,
1994
and
petitioner
has
approached this Court after six years. He
further urged that the material on record
does not show that petitioner was
dependent on his father and as such the
petitioner
was
refused
regular
appointment under the Dying in Harness
Rules. He ed the impugned order passed
by the Opp. Party rejecting petitioner's
application for regular appointment under
the Dying in Harness Rules.

4. Considered arguments of learned
counsel for the parties and carefully gone
through the record.

5. From perusal of the impugned
order, it is clear that there is no finding
recorded by the Banaras Hindu University
whether petitioner was dependent of his
father on date of death of his father. One
of the relevant question of fact required to
be considered for appointment under the
Dying in Harness Rul8S is that the
applicant was dependent of the deceased
employee, if it is so, he may be appointed
under the Dying in Harness Rules.
Annexure-4 to the writ petition is the
Application of petitioner to the University
in which he had clearly stated that his
mother was separately residing and the
petitioner did not receive any financial
assistance from his mother. In Paragraph4 of the Supplementary Affidavit also
petitioner's dependency on his father was
stated. It is important to notice here that
University
has
already
appointed
petitioner as back an on 14.6.1994 on
Daily Wage basis and his application for
substantive appointment was rejected by
the impugned order, but he was allowed
to work. Petitioner rightly filed present
writ f petition only after stopping
petitioner finally to work even on Daily
Wage in 2000.

6. Considering the materials on
record, it is clear that Opp. Party did not
record any finding on relevant points
whether petitioner was dependent of
deceased employed. Refusal to appoint
petitioner regularly under the Dying in
Harness Rules was passed only on the
ground that mother of petitioner was in
employment in Nagar Nigam, Varanasi
without making any enquiry whether
petitioner was dependent on deceased
employee, i.e. father or mother. The
impugned order passed by the Banaras
Hindu University suffers from error of
law apparent on the face of record. It is
also well settled that the appointment
under the Dying in Harness Rules could
only be made on regular basis and not on
Daily Wage or Adhoc basis.

7. In view of the facts of the case,
the
impugned
order
dated
23rd/24th
August, 1994 (Annexure-2 to the writ
petition) passed by the Banaras Hindu
University is liable to be quashed.
2 All] Anand Singh V. The P.O., Labour Court, Agra and another
495
8. In the result, writ petition
succeeds and is allowed. The impugned
order dated 23rd /24th August, 1994,
passed by the Baharas Hindu University is
quashed
and
the
Banaras
Hindu
University
is
directed
to
consider
petitioner's case for regular appointment
under the Dying in Harness Rules afresh
in accordance with law. Petitioner is also
permitted to make a fresh representation
supplementing his earlier representations
annexing therewith all relevant materials.
University will pass appropriate orders on
petitioner's representation in accordance
with law within two months from the date
of production of a certified copy of this
order.

No order as to cost. Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2007

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Review Application No. 200478
of 2005
In
Civil Misc. Writ Petition No. 13174 of 1986

Anand Singh

...Petitioner
Versus
The Presiding Officer, Labour Court, Agra
and another

 Respondents

Counsel for the Petitioner:
Sri Mohd. Asif Khan

Counsel for the Opposite Parties:
Sri K.N. Misra
S.C.

Constitution
of
India,
Art.
226Cancellation appointment-on the post of
clerk/Cashier-11 persons including the
petitioner-who
related
with
Asstt.
Registrar-in
view
of
G.O.
27.7.79
participation of the nominee of Registrar
is must-non participation of Assistant
Registrar-held-committee not properly
constituted-Labour Court award as well
as the earlier judgment of High Courtperfectly justified.

Held: Para 8

It has been mentioned in the award that
the petitioner was brother-in-law of the
then Secretary of the Bank i.e. Sri Girraj
Singh.
The
Secretary
is
ex-officio
member of the Selection Committee
consisting
of
Chairman,
Assistant
Registrar
or
his
nominee
and
the
Secretary.
Petitioner's
brother-in-law,
Girraj Singh, was the member of the
Selection Committee, which selected the
11 persons including the petitioner.
Appointment letter was also issued by
the Secretary Sri Girraj Singh, the
brother-in-law of the petitioner. The
appointment
of
the
petitioner
was,
therefore, illegal only and only on this
ground.
Case law discussed:
AIR 1970 SC-150 relied on.

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
parties.

2. Trough this review petition filed
on 5.10.2005 review of judgement dated
31.3.1999 has been sought. The review
petition
is
accompanied
by
delay
condonation application. The ground
taken in the said application is that the
petitioner was not aware of the decision
of writ petition and even after dismissal of
the writ petition he had filed the
supplementary affidavit through another
counsel under the assumption that the writ
petition was pending. The writ petition