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

- **Citation:** (2020) 12 ILRA 723
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-25
- **Case number:** Writ A No. 31032 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhirendra-kumar-v-state-of-u-p-ors-45513
- **Pages:** 4

## Headnote

A. Service Law-Compassionate Appointment
- The U.P. Recruitment of Dependents of
Government
Servants
Dying-in-Harness
Rules, 1974 - In case there is a rival claim to
compassionate appointment under the Rules,
the Head of Office shall decide about the
suitability of that person for employment. It
also stipulates that the decision will be one
that bears in mind the overall welfare of the
entire family, particularly, the widow and the
minor dependents. (Para 10)

The decision about the fact as to which
dependent of the deceased would be best
known to the widow's interest, can reasonably
be expected to be best known to the widow
herself. Apart from the widow, the other two
dependents also expressed their choice in
favour of the fifth respondent against the
petitioner. Further, the widow sworn in an
affidavit that the petitioner is a man with
criminal antecedents which shows that she does
not trust him to take care of the family
therefore the Superintending Engineer rightly
exercised his power under the Rules of 1974 to
accept the fifth respondent's claim and reject
that of the petitioner. (Paras 11, 12, 13)

Writ Petition rejected. (E-10)

## Text

12 All. Dhirendra Kumar Vs. State of U.P. & Ors.
723
accordance with law, after hearing the
petitioners within a period of one month of
date of receipt of copy of this order. Costs
easy.

27. Let this order be communicated to
the District Inspector of Schools, Basti by
the Joint Registrar (Compliance) within a
week.
----------
(2020)12ILR A723
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

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

Writ A No. 31032 of 2015

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

Counsel for the Petitioner:
Sri Umesh Vats, Sri Bhupesh Kumar Singh,
Sri Hare Ram Pandey

Counsel for the Respondents:
C.S.C., Sri Q.H. Siddiqui, Sri Rajesh Kumar
Dubey, Saiful Islam Siddiqui, Sri Vimlesh
Kumar Rai

A. Service Law-Compassionate Appointment
- The U.P. Recruitment of Dependents of
Government
Servants
Dying-in-Harness
Rules, 1974 - In case there is a rival claim to
compassionate appointment under the Rules,
the Head of Office shall decide about the
suitability of that person for employment. It
also stipulates that the decision will be one
that bears in mind the overall welfare of the
entire family, particularly, the widow and the
minor dependents. (Para 10)

The decision about the fact as to which
dependent of the deceased would be best
known to the widow's interest, can reasonably
be expected to be best known to the widow
herself. Apart from the widow, the other two
dependents also expressed their choice in
favour of the fifth respondent against the
petitioner. Further, the widow sworn in an
affidavit that the petitioner is a man with
criminal antecedents which shows that she does
not trust him to take care of the family
therefore the Superintending Engineer rightly
exercised his power under the Rules of 1974 to
accept the fifth respondent's claim and reject
that of the petitioner. (Paras 11, 12, 13)

Writ Petition rejected. (E-10)

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

1. This writ petition has emerged from a
conflict
of
claims
to
compassionate
appointment between the two sons of the late
Mishri Lal, a Government servant, who died
in harness. Late Mishri Lal was a chowkidar
in the Establishment of the Construction Unit,
Uttar Pradesh Jal Nigam, Power House Road,
102/1017, Kasturi Niwas, Mohammadipur,
Gorakhpur. The deceased was a permanent
employee. Mishri Lal died in harness on
03.05.2014, leaving behind him, his widow
Smt. Vidya Devi and four sons, all adults, to
wit, Ashok Kumar, Dhirendra Kumar,
Brijesh Kumar and Vijay Kumar. The two
sons of the late Mishri Lal, who have staked
rival claims to compassionate appointment
under The Uttar Pradesh Recruitment of
Dependents of Government Servants Dyingin-Harness Rules, 19741 are the petitioner,
Dhirendra Kumar, on the one hand, and the
fifth respondent, Brijesh Kumar, on the other.

2. It is the petitioner's case that he is
the eldest son of the deceased. He applied
under the Rules of 1974 on 27.05.2014. It
is the petitioner's case that his mother, Smt.
Vidya Devi, tendered an affidavit dated
27.05.2014, indicating her willingness for a
compassionate appointment in favour of the
petitioner, in place of her deceased
husband. A copy of the affidavit dated
724 INDIAN LAW REPORTS ALLAHABAD SERIES
27.05.2014, allegedly sworn by Smt. Vidya
Devi in the petitioner's favour, is on record.
The petitioner has also averred that while
his father was alive, he had executed an
unregistered will in the petitioner's favour,
a copy whereof he has annexed as
Annexure-4 to the writ petition. The will
carries a nomination in favour of the
petitioner
by
the
testator,
virtually
bequeathing to the petitioner a right to
compassionate
appointment
after
his
decease.

3. The Court has been taken through
the contents of the will by the learned
counsel for the petitioner. It is the
petitioner's further case that he is a
graduate. This Court must remark that in
support of this assertion of his, the
petitioner has annexed two certificates,
which show that he has earned his
matriculation and intermediate examination
certificates from The U.P. Board of High
School and Intermediate Education. There
is no copy of a bachelor's degree of any
kind to show that the petitioner is a
graduate. The petitioner claims that no
action was taken, on his request for
compassionate
appointment,
for
a
considerable period of time. He, therefore,
approached higher functionaries of the
Uttar Pradesh Jal Nigam on 01.07.2014,
complaining of inaction on the part the Jal
Nigam authorities. It is asserted that all this
inaction
compelled
the
petitioner
to
institute Writ - A No. 45913 of 2014 before
this Court, praying that his claim for
compassionate appointment may be dealt
with and decided. Writ - A No. 45913 of
2014 was disposed of by this Court, by an
order
dated
02.09.2014,
requiring
respondent no. 2 to the petition to decide
the petitioner's claim for compassionate
appointment, carried in his representation
dated 27.05.2014, within a period of three
months from the date of production of a
certified copy of that order before the said
respondent. It is the petitioner's case that by
the impugned order dated 22.12.2014, his
representation has been rejected, and
instead, the fifth respondent's claim to
compassionate appointment, on account of
their father's death in harness, has been
accepted. This order has been passed by the
Superintending
Engineer,
Construction
Unit, U.P. Jal Nigam, Lucknow.

4. Disillusioned by the impugned
order dated 22.11.2014, this writ petition
has been brought.

5. Notice, pending admission, was
issued by this Court to the respondents,
vide order dated 25.05.2015. This notice of
motion has led to a combined counter
affidavit
being
filed
on
behalf
of
respondent nos. 2, 3 and 4, and a separate
return, on behalf of the rival and successful
claimant for compassionate appointment,
respondent no. 5. To both these returns, the
petitioner has filed separate rejoinders.

6. Admit.

7. Heard forthwith.

8. Heard Mr. Hare Ram Pandey,
learned counsel for the petitioner, Mr.
Vimlesh Kumar Rai, learned Standing
Counsel appearing on behalf of respondent
nos. 2, 3 and 4, and Mr. Rajesh Kumar
Dubey, learned counsel appearing for
respondent no. 5.

9. This Court has carefully perused
the record. The impugned order shows that
the respondents had before them, two rival
claimants to consider under the Rules.
Admittedly, both the claimants, that is to
say, the petitioner and the fifth respondent,
12 All. Dhirendra Kumar Vs. State of U.P. & Ors.
725
are sons of the late Mishri Lal. There is no
quarrel that Mishri Lal was a permanent
government servant and his dependents are
eligible under the Rules of 1974 to
compassionate appointment. The reason,
apparently, to accept the fifth respondent's
claim and reject that of the petitioner, is the
fact that the deceased's widow has come
out with a clear stand that she never gave a
no objection on affidavit in favour of the
petitioner's
claim
to
compassionate
appointment. She has dubbed the affidavit
of no objection, produced by the petitioner,
purporting to be sworn by her, as a forged
document. To the contrary, she has
furnished an affidavit in favour of the fifth
respondent,
saying
that
he
may
be
considered for compassionate appointment
under the Rules of 1974, availing the right
as a dependent of her deceased husband.
The respondents, faced with this kind of a
claim, have placed reliance upon the
provision to Rule 7 of the Rules of 1974,
which is extracted infra :

"7. Procedure when more than one
member of the family seeks employment.-
If more than one member of the family of
the deceased Government servant seeks
employment under these rules, the Head of
Office shall decide about the suitability of
the person for giving employment. The
decision will be taken keeping in view also
the overall interest of the welfare of the
entire family, particularly the widow and
the minor members thereof."

10. Rule 7 of the Rules of 1974
provides that in case more than one
members of the deceased's family stake
claim for employment under the Rules, the
Head
of
Office
shall
decide
about
suitability of the person for employment. It
also stipulates that the decision will be one
that bears in mind the overall welfare of the
entire family, particularly, the widow and
the minor dependents. It appears that in this
case, not only the widow consented in
favour of the fifth respondent's candidature,
but the other two brothers, Ashok Kumar
and Vijay Kumar also. The Superintending
Engineer, who dealt with the claim, found
the
fifth
respondent
not
just
better
qualified, with an M.A. degree, but also
found that the petitioner's claim to being a
graduate, unsubstantiated. He had placed
on record a certificate of passing the
intermediate examination, but nothing to
show that he was a graduate. Before this
Court also, the petitioner has claimed
himself to be a graduate, but has not placed
on record the bachelor's degree to prove the
fact.

11. The primal consideration with the
respondents, to accept the fifth respondent's
claim, however, is the choice exercised in
his favour by the deceased's widow. The
choice of the deceased's widow is very
relevant under Rule 7 of the Rules of 1974.
There are, particularly, two classes of
members of the deceased's family, whose
welfare is more jealously guarded than the
others. It is the deceased's widow and his
minor children. There are no minor
children here, and therefore, the widow's
welfare assumes importance. Now, the
decision about the fact as to which
dependent of the deceased would best
secure the widow's interest, can reasonably
be expected to be best known to the widow
herself. Also, the welfare of the other
dependents, generally, is to be borne in
mind. The two other dependents, besides
the widow, have also exercised their choice
in favour of the fifth respondent, and
against the petitioner. The impugned order,
therefore, appears to have proceeded on
reasonable
grounds
and
taking
into
account, considerations relevant under the
726 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules of 1974, particularly, Rule 7, which
applies to a case of rival claimants.

12. It must be placed on record that
before this Court, a counter affidavit, filed
on behalf of the fifth respondent, is an
affidavit of the deceased's widow. She has
said on oath that the petitioner is a man
with criminal antecedents. She has annexed
on record, a copy of an F.I.R. registered
against the petitioner. She has also annexed
on record, a copy of the ration card, from a
time when the deceased was head of the
family. That ration card does not show the
petitioner's name, whereas, it clearly shows
the fifth respondent's name. The widow
appears to be disillusioned with the
petitioner. She has called him a hardened
criminal, in the counter affidavit filed on
behalf of respondent no. 5.

13. This Court does not, at all, intend
to say that the petitioner is, in fact, a
hardened criminal. The petitioner may be a
rascal, a saint, or a man in the mainstream
of society. What is relevant is that the
deceased's widow, the petitioner's mother,
does not trust him to take care of the
family. It is this fact that is relevant under
Rule 7 of the Rules of 1974. The
Superintending Engineer, who has passed
the impugned order, has, in the opinion of
this Court, rightly exercised his powers
under the Rules of 1974 to accept the fifth
respondent's claim and reject that of the
petitioner.

14. In the result, this petition fails and
is dismissed.

15. Costs easy.
----------
(2020)12ILR A726
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.11.2020
BEFORE

THE HON'BLE MANISH KUMAR, J.

Service Single No. 31660 of 2019

Anurag Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ashwani Kumar

Counsel for the Respondents:
C.S.C., Rajendra Singh Kushwaha

A. Service Law - The petitioner had joined on
the post of Assistant Teacher (Arts) on
11.10.1999 and worked untill 21.11.2000. He
was then forced not to attend the institution for
the period since 22.11.2000 to 20.11.2001. The
decision for inclusion of institution in the Grantin-Aid list is not in pursuance of the documents
submitted
in
the
year
2000-2001.
After
rectifying the shortcomings in the documents,
the institution was included in the Grant-in-Aid
list in the year 2004 and the name of the
petitioner was there in the list. He was
appointed against a sanctioned post which felt
vacant one on the demise of the Principal and
another on retirement of the incumbent teacher,
which is the basis upon which the college has
been included in the Grant-in-Aid list. In this
background the reason assigned by DIOS for
dropping the name of the petitioner is wholly
untenable. (Para 9)

Writ Petition allowed. (E-10)

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard learned counsel for the
petitioner, learned State Counsel for
Respondent Nos.1, 2 and 3 and Sri
Rajendra Singh Kushwaha, learned counsel
for Opposite Party No.4.

2. The present writ petition has been
preferred for quashing of the impugned
order dated 6.9.2019 passed by Opposite