# Durgesh Srivastava v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Case number:** Service Single No. 6747 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durgesh-srivastava-v-state-of-u-p-ors-47303
- **Pages:** 5

## Headnote

Law
-
Compassionate
Appointment - Dying in Harness Rules,
1974
-
The
required
condition
for
appropriate post should be fulfilled by the
76 INDIAN LAW REPORTS ALLAHABAD SERIES
candidate holding such post and there
cannot be any compromise. This Court may
not relax such condition, inasmuch as, this is a
domain of concerning authority to fix mandatory
condition for particular post. Impugned order
dated 22.9.2021 cannot be interfered with as far
as it provides that on account of non-obtaining
the required condition the petitioner would not
be eligible to hold the post of Junior Assistant.
(Para 9)

B. The appointment on compassionate
ground is not a temporary appointment
but has to be treated as permanent
appointment and any condition which
makes such appointment conditional may
not be permissible. The law stipulates that
the appointment under Dying-in-Harness Rule is
of permanent nature and as per letter and spirit
of the particular rule, any suitable appointment
on compassionate ground is provided to one
eligible member of the family of deceased
employee at the earliest so that sufferance and
distress of the family could be met out.
Therefore, it would not be proper, if such
appointment
is
provided
subject
to
any
condition, which if not fulfilled may cause
cancellation of appointment. (Para 10, 11, 13)

In the present case since the petitioner was not
able to achieve the required typing speed at
that point of time, therefore, if competent
authority may deem fit and proper, may provide
another opportunity to the petitioner taking his
typing test but if the authority does not find it
feasible,
at
least
any
appropriate
appointment
as
per
his
educational
qualification may be provided to the
petitioner so that the family of deceased
employee who died in-harness could survive
properly. (Para 14)

Writ petition disposed off. (E-3)

Precedent followed:

## Text

8 All. Durgesh Srivastava Vs. State of U.P. & Ors.
75
therein by the Rule framing authority. The
rule framing authority has not framed the
aforesaid Rules in manner as are being read
by the respondents. Since the Rules are
applicable only to daily wage employees, the
Rules framing authority was aware that such
employee
could
not
have
worked
continuously throughout and, therefore, has
clearly provided that the engagement must be
before 29.6.1991 and he is continuing as such
on the date of commencement of the Rules. If
a daily wage engagement has been made
before 29.6.2001 and was continuing on
21.12.2001, meaning thereby the daily wage
engagement remained necessity of the
department or the requirement thereof for
more than 10 years, for such a person only,
the benefit of regularization under 2001
Rules has been provided and it nowhere
requires further that the incumbent must have
worked continuously from the date of initial
engagement till the commencement of these
Rules and to read these words would amount
to legislation, which is not permissible in law.
While interpreting the statute, it is well settled
that neither any word shall be added nor be
subtracted but if a plain reading of the statute
is clear and unambiguous, the same has to be
followed as such. This Court does not find
any ambiguity in Rule-4(1) providing as to
which kind of persons would be entitled for
regularization and it nowhere requires that
the incumbent must have worked throughout
from the date of initial engagement till the
date of commencement of the Rules."

10. It has been not disputed at the bar
that the judgment of this Court in re:
Janardan Yadav (supra) has not been
quashed or modified by the Division Bench
of this Court or by Hon'ble Apex Court,
therefore, that judgment is still a good law
governing the field. Further, the services of
identically placed employees have been
regularized following the decision of this
Court in re: Janardan Yadav (supra),
therefore, on the basis of principles of
parity the services of the petitioner may be
regularized in terms of the directions being
issued in re: Janardan Yadav (supra).

11. Accordingly, the writ petition is
allowed.
The
impugned
order
dated
25.06.2014, passed by the opposite party
No.3, which is contained as Annexure No.1
to the writ petition, is hereby quashed.

12. A writ in the nature of mandamus
is issued commanding the opposite parties
to regularize the services of the petitioner,
strictly in accordance with law and provide
him all consequential service benefits
which are admissible for regular employees
of the department.

13. No order as to costs.
----------
(2021)08ILR A75
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 6747 of 2021

Durgesh Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Raj Kumar Upadhyaya(R.K.)

Counsel for the Respondents:
C.S.C., Kaushalendra Yadav

A.
Service
Law
-
Compassionate
Appointment - Dying in Harness Rules,
1974
-
The
required
condition
for
appropriate post should be fulfilled by the
76 INDIAN LAW REPORTS ALLAHABAD SERIES
candidate holding such post and there
cannot be any compromise. This Court may
not relax such condition, inasmuch as, this is a
domain of concerning authority to fix mandatory
condition for particular post. Impugned order
dated 22.9.2021 cannot be interfered with as far
as it provides that on account of non-obtaining
the required condition the petitioner would not
be eligible to hold the post of Junior Assistant.
(Para 9)

B. The appointment on compassionate
ground is not a temporary appointment
but has to be treated as permanent
appointment and any condition which
makes such appointment conditional may
not be permissible. The law stipulates that
the appointment under Dying-in-Harness Rule is
of permanent nature and as per letter and spirit
of the particular rule, any suitable appointment
on compassionate ground is provided to one
eligible member of the family of deceased
employee at the earliest so that sufferance and
distress of the family could be met out.
Therefore, it would not be proper, if such
appointment
is
provided
subject
to
any
condition, which if not fulfilled may cause
cancellation of appointment. (Para 10, 11, 13)

In the present case since the petitioner was not
able to achieve the required typing speed at
that point of time, therefore, if competent
authority may deem fit and proper, may provide
another opportunity to the petitioner taking his
typing test but if the authority does not find it
feasible,
at
least
any
appropriate
appointment
as
per
his
educational
qualification may be provided to the
petitioner so that the family of deceased
employee who died in-harness could survive
properly. (Para 14)

Writ petition disposed off. (E-3)

Precedent followed:

1. Shakuntala Devi Vs St. of U.P. & ors., Writ-A
No. 9255 of 2017, decided on 20.04.2017 (Para
11)

2. Ravi Karan Singh Vs St. of U.P. & ors., 1999
(2) A.W.C. 976 All. (Para 12)
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri R.K. Upadhyaya, learned
counsel for the petitioner and learned
Standing Counsel for the State.

2. The question for consideration is
that as to whether the compassionate
appointment can be provided subject to the
fulfillment
of
any
condition
to
be
completed in future failing which that
appointment would be cancelled. To be
more precise, as to whether the nature of
compassionate
appointment
can
be
uncertain or temporary or it should have
permanent character.

3. The brief facts of the case are that
the father of the petitioner died in harness
on 15.11.2017 while working on the post of
Senior Assistant in the office of District
Election Officer, Barabanki. After his death
the petitioner was appointed on the post of
Junior Assistant on compassionate basis on
02.05.2018 under the provisions of Dyingin-Harness Rule, 1974. He submitted his
joining on such post on 17.09.2018.

4. In the aforesaid appointment order
the petitioner was required to submit CCC
certificate from DOEACC Society in
Computer Operation within a year or any
certificate from recognized, equivalent
society along with 25 W.P.M. typing speed.
The petitioner submitted CCC certificate on
12.02.2020
obtained
from
National
Institute of Electronics and Information
Technology (NIELIT).

5. Precisely, the grievance of the
petitioner
is
that
he
was
provided
appointment on compassionate ground in
the
respondent
department
and
said
appointment was conditional to the effect
8 All. Durgesh Srivastava Vs. State of U.P. & Ors.
77
that in case the petitioner completes the
course of CCC certificate and acquires
typing speed of 25 W.P.M., his appointment
shall continue. As per impugned order, the
petitioner could not obtain the required
typing speed i.e. 25 W.P.M., therefore, his
services have been terminated.

6. The case set up by the learned
counsel for the petitioner challenging the
impugned order on the premise that the
appointment under Dying-in-Harness Rule
is of permanent nature, inasmuch as, such
appointment is provided to an employee
whose bread earner has died in-harness and
during the distress and difficulties of the
family one eligible person of the family
member is given appointment under the
Dying-in-Harness Rule so that family of
the deceased employee could survive.
Therefore, if any appointment is provided
to any person which is dependent upon any
technical condition and if such condition
does not fulfill the said appointment is
cancelled, then the very purpose of
providing appointment under Dying-inHarness Rule would frustrate. Learned
counsel for the petitioner has further
explained the reason as to why the
petitioner could not achieve such required
speed but that explanation cannot be looked
into at this stage being factual aspect but it
can be seen as to whether the appointment
under Dying-in-Harness Rule has been
provided in the letter and spirit of the
particular
rule.
The
petitioner
has
categorically stated in para 12 of the writ
petition that after the death of the bread
earner of the family the entire family is in
distress and they are facing lot of problems.
In this para the reason of not obtaining the
speed has been indicated. Learned counsel
for the petitioner has further submitted that
if the petitioner was not capable of
discharging the duties of Junior Assistant in
the District Election Office, Fatehpur as
had been provided to him under Dying-inHarness
Rule
any
other
appropriate
appointment could have been provided to
the petitioner which is of permanent nature.

7. Learned Standing Counsel has
referred
to
the
contents
of
various
paragraphs
of
counter
affidavit
by
submitting that since the petitioner could
not achieve the required speed of typing
which was mandatory for the post of Junior
Assistant, therefore, his appointment has
rightly been cancelled. The entire counter
affidavit is based on the very fact that
whatever was the required and mandatory
conditions for holding any particular post,
that condition must be fulfilled by the
employee.

8. Heard learned counsels for the
respective parties and perused the material
available on record.

9. At the outset, I am in agreement
with the contentions of opposite party that
the required condition for appropriate post
should be fulfilled by the candidate holding
such post and there cannot be any
compromise. This Court may not relax such
condition, inasmuch as, this is a domain of
concerning authority to fix mandatory
condition for particular post. Therefore, I
do not interfere the impugned order dated
22.9.2021 (Annexure No.1) as far as it
provides that on account of non-obtaining
the required condition the petitioner would
not be eligible to hold the post of Junior
Assistant.

10. However, the another relevant
issue in the present case is that the
appointment was provided to the petitioner
under Dying-in-Harness Rule as the bread
earner of the family died in-harness and on
78 INDIAN LAW REPORTS ALLAHABAD SERIES
account of that demise the family of the
deceased employee has suffered a lot,
therefore, it had been rightly considered by
the competent authority to provide any
appropriate appointment to the petitioner
under Dying-in-Harness Rule on the
compassionate basis. The law stipulates
that the appointment under Dying-inHarness Rule is of permanent nature and as
per letter and spirit of the particular rule
any suitable appointment on compassionate
ground is provided to one eligible member
of the family of deceased employee at the
earliest so that sufferance and distress of
the family could be met out. Therefore, if
any appointment is provided subject to any
condition and non-fulfillment thereof may
cause cancellation of appointment would
not be proper in a case where appointment
under Dying-in-Harness Rule has been
provided.

11. One case law has been cited by
the learned counsel for the petitioner, in re:-
Writ A No. 9255 of 2017 (Shakuntala Devi
vs. State of U.P. & Others) which was
decided finally vide judgment and order
dated 20.4.2017 wherein some cases have
been cited decided by the Constitutional
Court to the effect that "the appointment
on compassionate ground is not a
temporary appointment but the same
has
to
be
treated
as
permanent
appointment."

12. This Court in re: Shakuntala Devi
(supra) has cited one judgment of Division
Bench of this Court in re: Ravi Karan
Singh vs. State of U.P. and others, 1999
(2) A.W.C.-976 All., wherein the Division
Bench has held that the appointment under
Dying-in-Harness has to be treated as
permanent appointment. Later on a Full
Bench in the case of Sr. General Manager,
Ordnance
Factory
vs.
Central
Administrative
Tribunal
and
others,
MANU/UP0287/2016, has approved the
judgment in re: Ravi Karan Singh (supra).

13. I am also in agreement with the
judgment and order in re:- Shakuntala Devi
(supra) and other similar judgments to the
effect that the appointment under Dying-inHarness Rule has to be treated as
permanent and if on account of any
condition which makes such appointment
conditional may not be permissible.

14. In the present case since the
petitioner was not able to achieve the
required typing speed at that point of time,
therefore, if competent authority may deem
fit and proper may provide another
opportunity to the petitioner taking his
typing test but if the authority does not find
it feasible, at least any appropriate
appointment
as
per
his
educational
qualification may be provided to the
petitioner so that the family of deceased
employee who died in-harness could
survive properly.

15. So as to carry out this exercise, I
direct the competent authority to reconsider
the candidature of the petitioner for
providing him any appropriate appointment
under Dying-in-Harness Rule for that the
petitioner may prefer a fresh representation
taking all pleas and grounds which are
available to him enclosing therewith copy
of relevant documents which are necessary
for disposal of the representation and any
appropriate decision as directed above shall
be taken by the competent authority i.e.
opposite party no.2 (Chief Election Officer,
U.P., 4th Floor, Vikas Bhawan, Janpath
Market,
Hazratganj,
Lucknow)
with
promptness preferably within a period of
two months from the date of receipt of
representation and the decision thereof
8 All. Pradeep Kumar Gupta Vs. Engineer In Chief(Mechanical) Irrigation & Ors.
79
shall be communicated to the petitioner
forthwith.

16. It is also observed that while
taking fresh decision the earlier impugned
order dated 22.9.2020 which is subject
matter of the present writ petition shall be
ignored.

17. The present writ petition is,
accordingly, disposed of in the aforesaid
terms.
----------
(2021)08ILR A79
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 7577 of 2021

Pradeep Kumar Gupta ...Petitioner
Versus
Engineer In Chief(Mechanical) Irrigation &
Ors. ...Respondents

Counsel for the Petitioner:
Purnima Gupta, B.R. Singh, Subodh Kumar
Gupta

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension - If the
Competent Authority has extended any
benefit to an employee in compliance of
the judgment and order passed by this
Court or by any Constitutional Court, the
said benefit may not be reviewed/recalled
without getting appropriate order from
the concerning Court by filing review
application or challenging the said order
before the Superior Court. (Para 11)

In the present case, there is no averment on the
part of the State Government that for getting
the benefit of pay-scale in the year 1996
onwards the petitioner has ever misrepresented
before the Competent Authority, rather, said
benefit has been provided to the petitioner in
compliance of order of this Court. (Para 14)

B. If any mistake committed by the
department in making pay fixation of an
employee
is
rectified
after
the
retirement of an employee withdrawing
the benefit which have been paid to
such
employee
much
prior
to
the
retirement of an employee, such mistake
may not be rectified, consequently no
amount in the name of excess amount
shall be recovered from the employee
nor the pension of such employee could
be reduced. (Para 13)

The office memo dated 16.1.2020 (impugned
order) has been quashed being illegal, arbitrary
and violative of Article 14 and 16 of the
Constitution of India, as vide this order the
authority illogically and inappropriately recalled
its own order of compliance passed way back on
8.9.2011., i.e. after more than eight years.
(Para 15, 16)

Writ petition allowed. (E-3)

Precedent followed:

1. Sushil Kumar Singhal Vs Pramukh Sachiv
Irrigation Department & ors., (2014) 16 SCC
444 (Para 10)

Present petition assails office memo dated
16.01.2020, issued by Executive Engineer
concerned, reducing the final pay of the
petitioner, thereby reducing the pension.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri B.R. Singh, learned
counsel for the petitioner and the learned
Standing Counsel for the State-respondents.

2. By means of this writ petition, the
petitioner has prayed for the following
reliefs:-