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

- **Citation:** (2024) 1 ILRA 56
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-21
- **Case number:** Writ A No. 17548 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kumar-v-state-of-u-p-ors-50932
- **Pages:** 5

## Headnote

Law
-
Compassionate
Appointment
-
U.P.
Recruitment
of
Dependants of Government Servants
(Dying-in-Harness)
Rules,
1974
-
Petitioner sought compassionate appointment
following the death of his father, a Safai
Karmchari with Nagar Nigam, Saharanpur,
who died in harness on 05.04.2023 - Father
was appointed in 1990 after his own father
resigned due to ill-health - Respondents
rejected petitioner's application, claiming the
deceased's appointment was invalid as it was
not in accordance with the 1974 Rules - Held,
the validity of the deceased employee's
appointment
cannot
be
adjudged
posthumously
to
deny
compassionate
appointment - No proceedings were initiated
against the deceased during his lifetime to
challenge his appointment - Posthumous
invalidation of his status violates principles of
natural
justice
and
is
impermissible
-
Petitioner
entitled
to
consideration
for
compassionate appointment. (Paras 8, 11, 13)

B.
Service
Law
-
Disciplinary
Proceedings Against Deceased Employee
- No disciplinary or other proceedings can be
initiated against a deceased employee to
challenge the validity of their appointment
after death - Supreme Court's ruling in
*A.K.S. Rathore (Dead) through LRs* clarifies
that
such
proceedings
abate
upon
the
employee's demise - Respondents' attempt to
deem the deceased's appointment void ab
initio after his death is unsustainable -
Petitioner's
claim
for
compassionate
appointment must be considered based on
the
deceased's
status
as
a
permanent
employee at the time of death. (Paras 11, 12,
13)

Writ Petition Allowed - Impugned Order
Quashed - Respondents Directed to
Consider
Petitioner's
Claim
for
Compassionate Appointment.

List of Cases cited:

## Text

56 INDIAN LAW REPORTS ALLAHABAD SERIES
we find is that delay in concluding the
inquiry proceedings in pursuance of the
earlier order passed by the learned Tribunal
was on account of the petitioner and the
delay
in
conclusion
of
the
inquiry
proceedings
have
satisfactorily
been
explained by the respondent.

(16) For the aforesaid reasons, we are
of the view that the learned Tribunal has
rightly dismissed the claim petition filed by
the petitioner and there is no error in the
impugned judgment/order.

(17) The writ petition lacks merit and
is, accordingly, dismissed. However, there
shall be no order as to costs.
----------
(2024) 1 ILRA 56
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023

BEFORE

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

Writ A No. 17548 of 2023

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

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Surya Pratap Singh, Sri Jai
Bahadur Singh

A.
Service
Law
-
Compassionate
Appointment
-
U.P.
Recruitment
of
Dependants of Government Servants
(Dying-in-Harness)
Rules,
1974
-
Petitioner sought compassionate appointment
following the death of his father, a Safai
Karmchari with Nagar Nigam, Saharanpur,
who died in harness on 05.04.2023 - Father
was appointed in 1990 after his own father
resigned due to ill-health - Respondents
rejected petitioner's application, claiming the
deceased's appointment was invalid as it was
not in accordance with the 1974 Rules - Held,
the validity of the deceased employee's
appointment
cannot
be
adjudged
posthumously
to
deny
compassionate
appointment - No proceedings were initiated
against the deceased during his lifetime to
challenge his appointment - Posthumous
invalidation of his status violates principles of
natural
justice
and
is
impermissible
-
Petitioner
entitled
to
consideration
for
compassionate appointment. (Paras 8, 11, 13)

B.
Service
Law
-
Disciplinary
Proceedings Against Deceased Employee
- No disciplinary or other proceedings can be
initiated against a deceased employee to
challenge the validity of their appointment
after death - Supreme Court's ruling in
*A.K.S. Rathore (Dead) through LRs* clarifies
that
such
proceedings
abate
upon
the
employee's demise - Respondents' attempt to
deem the deceased's appointment void ab
initio after his death is unsustainable -
Petitioner's
claim
for
compassionate
appointment must be considered based on
the
deceased's
status
as
a
permanent
employee at the time of death. (Paras 11, 12,
13)

Writ Petition Allowed - Impugned Order
Quashed - Respondents Directed to
Consider
Petitioner's
Claim
for
Compassionate Appointment.

List of Cases cited:

1. Karan Addiwal Vs St. of U.P. & ors., Writ-A
No. 15004 of 2022

2. Nagar Ayukt, Nagar Nigam through its
Chief Executive Officer & ors. Vs Karan
Addiwal & ors., Special Appeal Defective No.
103 of 2023

3. A.K.S. Rathore (Dead) through LRs Vs
U.O.I. & anr., Civil Appeal No. 7028 of 2022,
decided on 28.09.2022
1 All. Deepak Kumar Vs. State of U.P. & Ors.
57
(Delivered by Hon'ble J.J. Munir, J.)

This writ petition is directed against
the order dated 14.09.2023 passed by the
Nagar Swasthya Adhikari, Nagar Nigam,
Saharanpur,
rejecting
the
petitioner's
application for compassionate appointment.

2. Heard Mr. Siddharth Khare, learned
Counsel for the petitioner, Mr. Surya Pratap
Singh, Advocate holding brief of Mr. Jai
Bahadur
Singh,
learned
Counsel
for
respondent Nos. 4, 5 and 6, and Ms.
Monika Arya, learned Additional Chief
Standing Counsel appearing on behalf of
respondent Nos. 1, 2 and 3.

3. The petitioner's father, Balbir
Singh, was a permanent employee, a Safai
Karmchari
with
the
Nagar
Nigam,
Saharanpur. He died in harness on
05.04.2023.
The
deceased-employee's
father, Chandu Ram, was a government
employee with the then Nagar Palika
Parishad, Saharanpur. He suffered from
indifferent health, and therefore, submitted
his resignation. Consequent upon Chandu
Ram's resignation, the petitioner's father
and Chandu Ram's son, Balbir Singh, was
appointed in the year 1990 as a Safai
Karmchari, a position he held until his
death in harness on 05.04.2023. The
petitioner was solely dependant upon his
deceased father for his livelihood and
sustenance. The petitioner has earned his
degree of Master of Arts (M.A.), besides
Bachelor of Arts (B.A.) in English. He also
holds a Diploma in Elementary Education.
The petitioner applied for compassionate
appointment
commensurate
to
his
educational qualifications. His application
has been rejected by the Nagar Swasthya
Adhikari by the order impugned dated
14.09.2023.

4. Aggrieved, the petitioner has
instituted the present writ petition.

5. A perusal of the impugned order
shows that the reason assigned to decline
the petitioner's claim for compassionate
appointment is that according to the
Government Order dated 15.09.2002, in
force at the relevant time, there was no
provision to grant the petitioner's father an
appointment for reason that his father had
resigned his job. It has been further
observed that going by the order of the
Nagar Ayukt, Nagar Nigam, Saharanpur
dated 12.09.2023, the petitioner cannot be
granted appointment in place of his
deceased father, because the deceased was
not lawfully appointed.

6. The moot question involved in this
petition is :

Whether
compassionate
appointment can be denied to a candidate
on ground that the deceased-employee,
whose demise gives him a right under the
Uttar Pradesh Recruitment of Dependants
of
Government
Servants
(Dying-inHarness) Rules, 1974/Dying-in-Harness
Scheme, was not lawfully appointed?

7. A return has been filed on behalf of
respondent Nos. 1, 2 and 3 by the Principal
Secretary, Urban Development Department,
Government of U.P. and a separate counter
affidavit, on behalf of respondent Nos. 4, 5
and 6, by the Apar Nagar Ayukt, Nagar
Nigam, Saharanpur. The unanimous stand
taken is that the petitioner's father was
appointed de hors the Rules, because his
father had resigned his post as a Safai
Karmchari, which did not give the
petitioner
a
right
to
be
appointed.
Nevertheless, the petitioner's father was
58 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed on the sole premise that his
father had resigned on account of ill-health.

8. Learned Counsel for the petitioner
has contended that the validity of the
petitioner's
father's
appointment
is
irrelevant to judge the petitioner's claim,
because the petitioner's father, while in
harness,
was
never
declared
to
be
unlawfully appointed. Learned Counsel for
the petitioner has placed reliance upon the
decision of a learned Single Judge of this
Court in Karan Addiwal v. State of U.P.
and others1. He submits that on identical
facts, it has been held that validity of
appointment of the deceased-employee,
whose dependant claims compassionate
appointment, cannot be gone into for the
purpose of determining the entitlement
under the Uttar Pradesh Recruitment of
Dependants
of
Government
Servants
(Dying-in-Harness) Rules, 19742. It is also
pointed out that the decision of learned
Single Judge in Karan Addiwal (supra)
has been upheld by the Division Bench in
Nagar Ayukt, Nagar Nigam through its
Chief Executive Officer and others v.
Karan Addiwal and others3.

9. Mr. Surya Pratap Singh, learned
Counsel
appearing
Nagar
Nigam,
Saharanpur and Ms. Monika Arya, learned
Additional
Chief
Standing
Counsel
appearing on behalf of the State have
strenuously argued that apparently, the
petitioner's father could have never been
appointed, except in accordance with the
Rules of 1974, to a post governed by
Statute. The petitioner's father held the
position of a Safai Karmchari in the
employ of the Nagar Nigam, and that
appointment has been made in his favour
simply on ground that his father had
resigned due to ill-health. Mr. Singh and
Ms. Arya emphatically submit that no such
appointment could ever have been made,
which is de hors the Rules.

10.

Learned
Counsel
for
the
respondents have invited this Court's
attention to the appointment letter dated
08.11.1989 issued by the Senior Medical
Officer of the Health Municipal Board,
Saharanpur, appointing the petitioner's
father. It says that the petitioner's father
was being appointed in compliance with an
order of the Chairman of the Nagar Palika
in the vacancy caused due to the
resignation of Chandu Ram. Learned
Counsel
for
the
respondents
have
emphasized that there is apparently nothing
under the Rules of 1974, where, on account
the resignation of an employee of a Nagar
Palika in harness, for whatsoever reason,
his son can be offered an appointment,
without following the due procedure of
selection. Therefore, in the submission of
learned Counsel for the respondents, the
appointment of the petitioner's father on
the post of a Safai Karmchari must be held
non est and void ab initio, which does not
confer any right upon the petitioner to ask
for a consideration for compassionate
appointment.

11. An identical issue arose in Karan
Addiwal and in answering it, my esteemed
Brother Neeraj Tiwari observed :

Learned
Senior
Counsel
appearing for petitioner further submitted
that once, it is undisputed that father of
petitioner was given appointment on
compassionate ground after resignation of
his grand-father and he was permitted to
continue in service till his death i.e.
18.02.2019. No departmental proceeding
has ever been initiated against father of
petitioner,
therefore,
after
his
death,
application of petitioner for compassionate
1 All. Deepak Kumar Vs. State of U.P. & Ors.
59
appointment cannot be rejected on the
ground that appointment of his father was
bad and de hors the rules. He next submitted
that as on date, father of petitioner is not
alive, therefore, no departmental proceeding
can be initiated against him. In support of
his contention, he has placed reliance upon
the judgement of Apex Court in the matter
A.K.S. Rathore (Dead) through Lrs. vs.
Union of India & Anr. (Civil Appeal No.
7028 of 2022) decided on 28.09.2022.

Learned counsel for respondents
though opposed, but could not dispute the
factual as well as legal submissions made by
counsel for petitioner.

I have considered the submissions
made by counsel for parties and perused the
records as well as judgments cited above.

Facts of the case are undisputed.
Appointment of father of petitioner cannot
be treated invalid or contrary to the rules
after his death coupled with this fact that
against his appointment, he was never
charge sheeted. Therefore, appointment of
father of petitioner shall be treated valid and
application of petitioner for appointment on
compassionate ground cannot be rejected on
the ground that appointment of his father
was bad and contrary to the rules.

Law is very well settled that
against a dead person, no inquiry proceeding
can be initiated as held by the Apex Court in
the matter of R.K.S. Rathore (Supra) and
the said judgment is also followed by this
Court in Writ-A No. 15004 of 2022.

12. On appeal from the aforesaid
judgment, it was held by the Division
Bench in Nagar Ayukt, Nagar Nigam v.
Karan Addiwal (supra) :

It appears that the writ petitioner
namely respondent no.1 herein has moved
an application for grant of compassionate
appointment on account of death of his
father in harness on 18.2.2019. The said
application has been rejected on the ground
that the appointment of father of the
petitioner itself was bad, inasmuch as, the
father of the petitioner got appointment
after resignation of the grandfather of the
writ petitioner though there was no
provision for the same.

We may note that the father of the
petitioner namely the deceased employee
had been appointed by an order of the
Executive
Officer,
Nagar
Nigam,
Saharanpur on 1.6.1991 and had continued
in service till his untimely death. During
the entire service period of the deceased
employee, neither any dispute had been
raised with regard to the validity of his
appointment nor any adjudication had been
made any competent authority or a court of
law. It is, therefore, not permitted for the
respondents to make any inquiry into the
validity of the appointment of the deceased
employee made on 1.6.1991 by then
Executive
Officer,
Nagar
Nigam,
Saharanpur, after his death, at the time of
consideration of claim of the petitioner for
grant of compassionate appointment on
account of untimely death of his father.

13. In the opinion of this Court, the
crux of the matter is whether the
appointment of the petitioner's father can
be adjudged void posthumously and
retrospectively. In our considered opinion,
that cannot be done. It is well settled that
that an employee, after being appointed to a
post, eligible or ineligible, cannot be
removed,
except
by
the
procedure
established by law. Generally, for a
permanent employee, even if there is a case
about
ineligibility,
some
kind
of
proceedings,
normally
disciplinary
proceedings, have to be taken to determine
his employment. Once an employee, who
has occupied a post governed by Statute is
60 INDIAN LAW REPORTS ALLAHABAD SERIES
dead, no proceedings of any kind can be
taken, terminating his status after his
demise. Even if it be considered that the
petitioner's father's appointment was made
contrary to the Statute, holding it so after
his demise, would be passing an order
against a dead man adverse to his interest,
particularly one relating to his status. If
disciplinary proceedings were initiated
against the petitioner's father on the charge
that he secured an appointment, that was
invalid, deliberately, these would abate
upon his demise, as held by the Supreme
Court in A.K.S. Rathore (Dead) through
LRs v. Union of India and another4.
Since no disciplinary proceedings or other
proceedings were initiated during the
petitioner's father's lifetime, no different
consequence can attach after his death visà-vis his status and the rights of his
dependents. The petitioner's father held a
permanent post in the establishment of the
Nagar Nigam, Saharanpur until his demise.
Therefore, the respondents are obliged to
consider the petitioner's candidature for
compassionate appointment as an eligible
member of the deceased-employee's family,
in accordance with the Rules of 1974.

14. In the result, this writ petition
succeeds
and
stands
allowed.
The
impugned order dated 14.09.2023 passed
by the Nagar Swasthya Adhikari, Nagar
Nigam, Saharanpur is hereby quashed. A
mandamus is issued to the Nagar Ayukt,
Nagar Nigam, Saharanpur and the Nagar
Swasthya
Adhikari,
Nagar
Nigam,
Saharanpur
to
consider
and
decide,
between themselves, the petitioner's claim
for appointment on compassionate basis in
accordance with law, within a month of the
date of receipt of a copy of this judgment.

15. The Registrar (Compliance) is
directed to communicate this order to the
Nagar Ayukt, Nagar Nigam, Saharanpur
and the Nagar Swasthya Adhikari, Nagar
Nigam, Saharanpur.
----------
(2024) 1 ILRA 60
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 31192 of 2017
Along With
Writ A No. 21232 of 2021
Special Appeal No. 513 of 2023
And
Special Appeal No. 507 of 2023

Alka Tiwari & Ors. ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
Sameer Kalia, Birendra Pratap Singh,
Meenakshi Singh Parihar

Counsel for the Respondent:
C.S.C., Ajay Pratap Singh, Onkar Singh, Raj
Kr. Singh Suryavanshi

Civil Law - The U.P. Educational (General
Education Cadre) Service Rules, 1992 - Rule
5(18) -The petitioners challenged Sub-Rule 18 of
Rule 5, which allocates 61% of promotion quotas
to
Headmasters
(Men's
Branch),
22%
to
Headmistresses (Women's Branch), and 17% to
Deputy Inspectors of Schools and equivalent nonteaching posts for the position of Principal,
Government Intermediate Colleges. The petitioners
argued that this quota is arbitrary, unreasonable,
and
discriminatory,
as
it
disadvantages
Headmistresses despite their larger cadre strength
(824 posts) compared to Headmasters (768
posts). (Paras 2, 5, 14, 16-17, 24-26)

Constitutional
Validity
and
Gender
Discrimination The court found the 61:22