# Foundation v. Govt of NCT of Delhi

- **Citation:** (2009) 1 ILRA 123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-28
- **Case number:** Civil Misc. Writ Petition No. 4228 of 2003
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/foundation-v-govt-of-nct-of-delhi-41297
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Recovery
of excess amount given towards salarythe initial appointment being temporary
nature
can
not
be
taken
into
consideration for grant of promotional
pay scale-held-initial appointment being
compassionate
appointment
to
be
treated regular appointment-such period
can not be excluded-No question of
excess payment-order of recovery of
alleged excess amount quashed.

Held: Para 10

The Division Bench decision of this Court
is binding. Learned Standing Counsel has
not referred any decision to the contrary.
Therefore,
the
appointment
of
the
petitioner
made
on
22.12.1978
on
compassionate ground considered to be
temporary appointment though there is
recital
in
the
order.
It
should
be
considered as permanent appointment
and, therefore, recovery of the amount
of Rs.18,485/- on the ground that the
services
of
the
petitioner
were
regularized as Lekhpal on 26.10.1981
and not on 22.01.1979 is illegal.
124 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Case law discussed:
1999 (2) ESC, 972 (Alld.), (2001) 2 UPLBEC,
2188, 1999 (2) ESC 972 (DB) and 1991 ALJ
1475

## Text

1 All] Akhtar Husain V. S.D.M., Saidpur, Ghazipur and others
123
decision
of
the
State
Government
pursuant to the Government Order dated
29.06.2002. Therefore, also it should not
be interfered with unless the policy
decision taken by the Government is
against any statutory provision or is
violative of fundamental right of the
citizens.

21. The Apex Court in the case of
Maharashra State board of Secondary
and Higher Education & Anr, vs
Paritosh Bhupesh Kurmarsheth, etc.,
AIR 1984 SC 1543 Ekta Shakti
Foundation v. Govt of NCT of Delhi,
2006 AIR SCW 3601, Ashif Hamid v.
State of J&K (AIR 1989 SC 1899), Shri
Sitaram Sugar Co. v. Union of India
(AIR 1990 SC 1277), University of
Mysore v. Govinda Rao reported in AIR
1965
SC
491,
J.P.Kulshrestha
v.
Chancellor,
Allahabad
University
reported in (1980) 3 SCC 418 has taken
the same view and elaborated the scope of
Judicial interference in the policy matter
of State Government.

22. We are of the view that the State
Government is competent to make policy
with regard to the appointment of
coordinators and the policy under which
the appointments have been made cannot
said to be hit any of the provisions of the
Constitution
or
any
other
statute
governing the field.

23. In the result special appeal fails
and is hereby dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2008

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 4228 of 2003

Akhtar Husain

...Petitioner

Versus
S.D.M., Saidpur, district Ghazipur and
others

 ...Respondents

Counsel for the Petitioner:
Sri R.P. Singh
Sri Brij Raj Singh

Counsel for the Respondents:
Sri Q.H. Siddiqui
S.C.

Constitution of India, Art. 226-Recovery
of excess amount given towards salarythe initial appointment being temporary
nature
can
not
be
taken
into
consideration for grant of promotional
pay scale-held-initial appointment being
compassionate
appointment
to
be
treated regular appointment-such period
can not be excluded-No question of
excess payment-order of recovery of
alleged excess amount quashed.

Held: Para 10

The Division Bench decision of this Court
is binding. Learned Standing Counsel has
not referred any decision to the contrary.
Therefore,
the
appointment
of
the
petitioner
made
on
22.12.1978
on
compassionate ground considered to be
temporary appointment though there is
recital
in
the
order.
It
should
be
considered as permanent appointment
and, therefore, recovery of the amount
of Rs.18,485/- on the ground that the
services
of
the
petitioner
were
regularized as Lekhpal on 26.10.1981
and not on 22.01.1979 is illegal.
124 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Case law discussed:
1999 (2) ESC, 972 (Alld.), (2001) 2 UPLBEC,
2188, 1999 (2) ESC 972 (DB) and 1991 ALJ
1475

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

1. By means of the present writ
petition, petitioner is challenging the
order
dated
31.12.2002
passed
by
Administrative Officer, Tehsil Saidpur,
district Ghazipur, respondent no. 2, by
which a sum of Rs.18,485/- is sought to
be recovered.

2. The brief facts giving rise to the
present writ petition are that that the
father of the petitioner, Mohd. Islam was
Lekhpal,
who
died
in
harness
on
22.12.1978. Thereafter, petitioner applied
for
appointment
on
compassionate
ground. Petitioner was given appointment
on the post of Lekhpal on 22.01.1979 as
per the letter issued by Parganadhikari,
Saidpur, district Ghazipur, annexure-1 to
the writ petition. Petitioner has been given
charge
of
Lekhpal
on
27.01.1979.
Thereafter, on 20.08.1979 the petitioner
was sent to Lekhpal Training Centre,
Varanasi. After completing the training of
Lekhpal when the petitioner returned back
to
Tehsil
Saidpur,
he
moved
an
application to the respondent no. 1 on
01.07.1980 for providing him the charge.
When charge was not given, he moved an
application the District Magistrate, on
which District Magistrate on 22.08.1980
district to provide a berth as per the
Government Order and as such Bhulekh
Adhikari sent a letter to the respondent
no. 1, Sub Divisional Magistrate, Saidpur,
district Ghazipur stating therein that the
petitioner is appointed under dying in
harness in place of his father and since
then
the
petitioner
is
continuously
working. After completing the service for
ten years petitioner was given selection
grade in the year 1989 alongwith other
Lekhpals and thereafter, completing six
years after getting the selection grade,
petitioner was given promotional scale.
Since then the petitioner is continuously
working. By the impugned order a sum of
Rs.18,486/- has been demanded on the
ground that in the service book the
petitioner was regularized as Lekhpal on
26.10.1981 and as such after completing
ten years satisfactory service, he is
entitled for selection grads on 06.10.1991
and thereafter, completing further six
years satisfactory service for promotion
scale. Since the petitioner was given
selection
grade
on
27.01.1985
and
promotion scale on 27.01.1995 as such
excess amount paid is sought to be
recovered.

3. Heard Sri Brij Raj Singh, learned
counsel for the petitioner and learned
Standing Counsel, appears on behalf of
the respondent nos. 1 to 3.

4. Learned counsel for the petitioner
submitted that the appointment of the
petitioner was under dying in harness on
compassionate ground and though in the
letter the appointment is shown as
temporary but the appointment under the
compassionate ground is to be treated as
permanent and regular appointment. He
submitted that the training is consequence
of his appointment and, therefore, his
permanent
appointment
should
be
considered
w.e.f.
22.09.1979.
His
subsequent joining in view of the order of
the District Magistrate after the training
could
not
be
considered
as
fresh
permanent appointment and, therefore, the
recovery is wholly unjustified. In support
of his contention he relied upon the
Division Bench decision of this Court in
1 All] Akhtar Husain V. S.D.M., Saidpur, Ghazipur and others
125
the case of Ravi Kiran Singh Vs. State
of U.P. and others, reported in 1999 (2)
ESC, 972 (Alld.) and the decision of
learned Single Judge in the case of
Kamlesh Kumar Pandey Vs. State of
U.P. and another, reported in (2001) 2
UPLBEC, 2188.

5. Learned Standing Counsel
submitted that the appointment letter
dated
22.09.1979
shows
that
his
appointment was temporary and his
service is liable to be terminated without
any notice. He submitted that after
completing the training when he came
back, District Magistrate has ordered for
his permanent appointment, which was
made on 06.10.1981. In the service book
also, he is shown as permanent regular
employee
w.e.f.
06.10.1981
and,
therefore, the consequential benefit is to
be reckoned from 06.10.1981 and not
from 22.09.1979.

6. Having heard learned counsel for
the
parties,
I
have
given
anxious
considerations to the rival submissions of
the parties and have also gone through the
various documents annexed alongwith the
writ petition and counter affidavit.

7. I find substance in the argument
of learned counsel for the petitioner.

8. In the case of Ravi Kiran Singh
Vs. State of U.P. and others (Supra),
Division Bench of this Court held as
follows:

"In our opinion, an appointment
under the Dying in harness Rules has to
be treated as a permanent appointment
otherwise
if
such
appointment
is
treated to be a temporary appointment
then will follow that soon after the
appointment
the
service
can
be
terminated and this will nullify the very
purpose of the Dying in Harness Rule
because such appointment is intended
to provide immediate relief to the
family on the sudden death of the
bread-earner. We, therefore, hold that
the
appointment
under
Dying
in
Harness
Rule
is
a
permanent
appointment and not a temporary
appointment and hence the provisions
of
U.P.
Temporary
Government
Servant
(Termination
of
Services)
Rules, 1975 will not apply to such
appointments."

9. In the case of Kamlesh Kumar
Pandey Vs. State of U.P. and another
(Supra), learned Single Judge held as
follows:

"The
appointment
letter
itself
shows
that
petitioner
offered
appointment on the probation of one
year. Earlier recital in the appointment
letter to the effect that petitioner's
services were temporary and liable to
be determined without prior notice gets
nullified
by
subsequent
recital
providing
for
appointment
on
probation. Even otherwise, it is now
well settled through several decisions of
this Court that appointment under
Dying
in
Harness
Rules
on
compassionate ground should not be
for short term or on temporary basis.
This Court has held time and again
that compassionate-appointee is not to
be left on the mercy of the authorities
offering employment, refer to 1999 (2)
ESC 972 (DB) and 1991 ALJ 1475."

10. The Division Bench decision of
this Court is binding. Learned Standing
Counsel has not referred any decision to
126 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the contrary. Therefore, the appointment
of the petitioner made on 22.12.1978 on
compassionate ground considered to be
temporary appointment though there is
recital in the order. It should be
considered as permanent appointment
and, therefore, recovery of the amount of
Rs.18,485/- on the ground that the
services of the petitioner were regularized
as Lekhpal on 26.10.1981 and not on
22.01.1979 is illegal.

11. In the result, writ petition is
allowed. Order dated 31.12.2002 passed
by the respondent no. 2, Administrative
Officer, Tehsil Saidpur, district Ghazipur
is quashed.

Petition allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.01.2009

BEFORE
THE HON'BLE R.M. CHAUHAN, J.

Criminal Misc. Application No. 5674 of
2007

Kisan Chandra
...Appellant (In Jail)

Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri Gautam,
Sri N.K. Chaudhary

Counsel for the Opposite Party:
Sri R.D. Yadav
Sri S.U. Khan
A.G.A

Criminal Appeal-Bail in pending appealappellant already served more than half
of punishment awarded-offence under
Section 304 B,498 IPC read with Section
4 of D.P.Act 10 year RI and 2000-fineaccused already detained for more than
5 years-No possibility of final decision of
appeal in coming future-held-entitled for
Bail.

Held: Para 12 & 14

In this case, the accused has already
spent more than the half of the sentence
awarded by the trial court to him, i.e., he
has spent five years and five months in
jail out of the ten years sentence
awarded by the trial court.

This appeal is pending since long and
there is no possibility that it will be
taken up for hearing in near future.
Keeping in view of the observations of
the Hon'ble Apex Court in the above
cited cases as well as the submissions of
the learned counsel for the appellant,
without prejudice to the merit of the
appeal,
let
the
accused-appellant
convicted and sentenced in the session
trial mentioned above, be released on
bail during the pendency of the appeal
on his executing personal bond with two
sureties each in the like amount to the
satisfaction of the court concerned.
Case law discussed:
2001 SCC (Crl.)-714, (2006) 1 SCC (Crl.) 757,
2001 SCC (Crl.)-714, (2006) 1 SCC (Crl.) 757.

(Delivered by Hon'ble R.M. Chauhan, J.)

1. The learned A.G.A. Has already
filed objection against the prayer of bail.

2. This appeal has been filed by the
accused appellant Kisan Chandra, son of
Vishwanath,
resident
of
Village
Madpawna, P.S. Ghanghata, district Sant
Kabir Nagar, against the judgment and
order dated 07.07.2007 passed by the
learned Additional Session/Special Judge
(E.C. Act), Basti in S.T. No. 202 of 2004
(Case Crime No. 366 of 2003) State Vs.
Kisan Chandra and others, whereby the
learned Sessions Judge held the accused
guilty under section 304 B, 498 I.P.C. and
section 4 of the D.P. Act, P.S. Ghanghata,