# Gaurav Pachaury v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-09
- **Case number:** Civil Misc. Writ Petition No. 36732 of 2008
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-pachaury-v-state-of-u-p-and-others-41945
- **Pages:** 4

## Headnote

Servant (Dying in Harness Rules) 1974Rule
2
(a)
(iii)-compassionate
appointment-denial
on
ground
deceased employee was not regular
employee but a seasonal worker-heldmisconceived-petitioner's
case
fall
under clause 3 of rule 2-petitioner's
father was initially appointed as
Seasonal Collection Amin in 1979regular
appointment
made
on
25.03.1997-died
in
harness
on
13.02.2005-rejection of claim-illegalquashed.

Held: Para 14

Facts of the present case are quite
similar to the facts of the cases of Malti
Devi (supra) and Panmati Devi (supra)
before the Division Bench and in view
of the principles laid down by the
aforesaid
two
judgments,
the
impugned
order
dated
29.04.2008
passed by respondent no. 2 rejecting
the
claim
of
the
petitioner
for
compassionate appointment, cannot be
sustained and is hereby quashed.
Case law discussed:
2006 (1) ESC 316 (All) (DB); [2008 (4) ESC
2373 (All) (DB)]

## Text

1216 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2011

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 36732 of 2008

Gaurav Pachaury

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Shri Rohit Singh
Sri Ishwar Chandra

Counsel for the Respondent:
C.S.C.

U.P. Recruitment of Dependent of Govt.
Servant (Dying in Harness Rules) 1974Rule
2
(a)
(iii)-compassionate
appointment-denial
on
ground
deceased employee was not regular
employee but a seasonal worker-heldmisconceived-petitioner's
case
fall
under clause 3 of rule 2-petitioner's
father was initially appointed as
Seasonal Collection Amin in 1979regular
appointment
made
on
25.03.1997-died
in
harness
on
13.02.2005-rejection of claim-illegalquashed.

Held: Para 14

Facts of the present case are quite
similar to the facts of the cases of Malti
Devi (supra) and Panmati Devi (supra)
before the Division Bench and in view
of the principles laid down by the
aforesaid
two
judgments,
the
impugned
order
dated
29.04.2008
passed by respondent no. 2 rejecting
the
claim
of
the
petitioner
for
compassionate appointment, cannot be
sustained and is hereby quashed.
Case law discussed:
2006 (1) ESC 316 (All) (DB); [2008 (4) ESC
2373 (All) (DB)]

(Delivered by Hon'ble Krishna Murari, J. )

1. Heard Shri Rohit Singh, learned
counsel for the petitioner and learned
Standing
Counsel
for
the
State
respondents.

2. Petitioner has approached this
Court for issuing a writ of certiorari to
quash
the
impugned
order
dated
29.04.2008 passed by District Magistrate,
Hathras rejecting the claim of the
petitioner for compassionate appointment.
A further writ of mandamus has been
claimed commanding the respondents to
appoint the petitioner on compassionate
ground.

3. Brief facts giving rise to the dispute
are that father of the petitioner was initially
appointed as seasonal Collection Amin on
25.07.1979 and posted at Tehsil Sadabad,
District
Mathura.
He
moved
a
representation before the District Magistrate
in the year 1996 claiming appointment on
the post of regular Collection Amin. When
no decision was taken, he approached this
Court by filing Writ Petition No. 37385 of
1996 along with other identically situated
Seasonal Collection Amin. The said writ
petition was disposed of by this Court vide
order dated 25.11.1996 directing the District
Magistrate to decide the representation filed
by the petitioners in accordance with law
and relevant rules and it was further directed
that if the services of the petitioners therein
have not been terminated, they shall be
permitted to continue in service and will
also be entitled to salary.

4. It has been urged that in
pursuance to the aforesaid order of this
3 All] Gaurav Pachaury V. State of U.P. and others
1217
Court, the father of the petitioner was
allowed to function as Amin vide order
dated 25.03.1997 passed by District
Magistrate. Thereafter, on creation of new
district Mahamaya Nagar, he was adjusted
there. He died in harness on 13th
February, 2005 in a road accident.
Petitioner
was
a
minor
at
that time. On attaining majority, he made
an application for grant of compassionate
appointment in July 2007. When no
decision was taken, he approached this
Court by filing Writ Petition No. 3760 of
2008, which was disposed of vide order
dated 23.01.2008 directing the District
Magistrate, Hathras to take a final
decision within a period of two months
from the date of production of a certified
copy of the order.

5. In compliance of the aforesaid
order, the claim of the petitioner has been
rejected on 29.04.2008 mainly on the
ground that since the father of the
petitioner was not absorbed as regular
Collection
Amin,
though
he
has
functioned as Collection Amin, hence, the
petitioner is not entitled to be given
compassionate appointment.

6. Learned counsel for the petitioner
has vehemently contended that rejection
of claim of the petitioner on the ground
that his father was not regularly appointed
on the post of Collection Amin, though he
had functioned on the said post, is not
sustainable in view of Rule 2 (a) (iii) of
the U.P. Dying-in-Harness Rules, 1974,
which provides that a Government servant
also includes a servant, who though not
regularly appointed, but had put in 3
years' continuous service in regular
vacancy in such employment and in view
of the said definition, compassionate
appointment cannot be denied on the
ground that petitioner's father was not
substantively
appointed
and
not
regularised.

7. Learned Standing Counsel
referring to the averments made in the
counter affidavit, contended that father of
the petitioner was a seasonal employee
and not a regular employee and was only
allowed to function as a Collection Amin
in pursuance to the order passed by this
Court in Writ Petition No. 37385 of 1996,
as such, the petitioner is not entitled for
being offered compassionate appointment.

8. I have considered the argument
advanced by the learned counsel for the
parties and perused the record.

9. The definition of Government
servant as contained in 1974 Rules
includes, "not only the Government
servant in permanent service, but even
temporary Government servant and also
those not regularly appointed, but have
put in 3 years' continuous service."

Rule 2 (a) of 1974 Rules reads as
under.

"2. Definition.- In these rules, unless
the context otherwise requires:

(a) "Government Servant" means a
Government
servant
employed
in
connection with the affairs of Uttar
Pradesh who-

(i)
was
permanent
in
such
employment; or

(ii) though temporary had been
regularly appointed in such employment;
or
1218 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(iii) though not regularly appointed,
had put in three years' continuous service
in regular vacancy in such employment."

10. Factual position which emerges
out from the own showing of the
respondents is that petitioner's father had
functioned as seasonal Collection Amin
from 1979 and thereafter vide order dated
25.03.1997, he was allowed to function as
Collection
Amin
regularly.
Once
petitioner's father had functioned for such
a long years right from 1979 till his death
on 13.02.2005, mere description that he
was a seasonal Collection Amin, will not
denude the status of Collection Amin and
in particular after he was allowed to
function continuously, as such, vide order
dated 25.03.1997 passed by Additional
District Magistrate in pursuance to the
order of this Court in Writ Petition No.
37385 of 1996.

11. In the present case, the long
continuous service, which had put in by
the father of the petitioner, his case
clearly falls within the ambit of "thought
not regularly appointed, but had put in 3
years' continuous service in regular
vacancy in such employment."

12. The similar question in identical
facts and circumstances have been the
subject matter of consideration by a
Division Bench of this Court in the case
of State of U.P. & Ors. Vs. Smt. Malti
Devi, 2006 (1) ESC 316 (All) (DB),
wherein after considering the definition of
Government servant as contained in Rule
2 (a) of 1974 Rules, it was held as under.

"It appears that the appellants are
under the impression that unless and until
Government
servant
is
permanent
employee, 1974 Rules is not applicable.
The said view is not correct and rather
contrary to the Rules."

13. The same view has again been
reiterated by another Division Bench in
the case of State of U.P. & Ors. Vs.
Panmati Devi & Anr., [2008 (4) ESC
2373
(All)(DB)],
wherein
also
the
petitioner was claiming compassionate
appointment on the ground that his father
was
initially
engaged
as
seasonal
Collection Peon on 17th February, 1976,
thereafter
had
worked
as
seasonal
Collection Peon for different periods.
Subsequently,
his
services
were
terminated which was stayed by this
Court, as a result, he continued in service
till 19th May, 2005 when he died while
working as Collection Peon. In such
circumstances, the Division Bench held as
under.

"Thus, the facts of the case reveal
that the working of the father of the
petitioner has been continuous for 19
years and during this period, he was paid
salary in the regular pay scale. We are
satisfy that such working cannot be
treated
to
be
seasonal.
In
such
circumstances, the direction issued by the
learned Single Judge under the impugned
judgment for considering the case of
petitioner for compassionate appointment
cannot be faulted with. The discretion
exercised by the learned Single Judge, in
the facts of the present case, is not
interfered with."

14. Facts of the present case are
quite similar to the facts of the cases of
Malti Devi (supra) and Panmati Devi
(supra) before the Division Bench and in
view of the principles laid down by the
aforesaid two judgments, the impugned
order
dated
29.04.2008
passed
by
3 All] Raj Prakash V. State of U.P. and others
1219
respondent no. 2 rejecting the claim of the
petitioner for compassionate appointment,
cannot be sustained and is hereby
quashed.

15. Writ petition stands allowed
with the direction to the respondents to
consider the claim of the petitioner for
grant
of
compassionate
appointment
expeditiously,
preferably
within
two
months from the date of production of a
certified copy of this order before him.

16. However, in the facts and
circumstances, there shall be no order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 40344 of 2011

Raj Prakash

 ...Petitioner
Versus
State Of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.V. Singh
Sri S.L. Singh

Counsel for the respondents:
C.S.C.

Constitution of India, Article 226- "U.P.
Police an organized Gang of Dacoits"-
observation of Apex Court fully proved in
case in hand-in mid night-searching the
Fire Arm of petitioner without any
authority of law-to justify their misdeed
got registered so many false criminal
cases-Police
Officer
of
District
in
question being uncontrolled can do any
legal nor illegal activities-District Police
Officer
failed
to
check
them-taking
possession
of
weapon
of
petitioner
wholly arbitrary illegal-chief Secretary to
take disciplinary action against S.O.-
Petition allowed with cost of Rs.50,000

Held: Para 37

In view of the above, I have no manner
of doubt in declaring action of taking
away of petitioner's firearm licence and
weapon by respondent No.4 to be wholly
illegal
and
arbitrary.
However,
considering the above discussion, the
writ petition is disposed of with the
following directions:

A. Chief Secretary, U.P. Lucknow
shall look into the matter and find out
involvement, dereliction and collusion of
various
officials
of
District
Police,
Ghaziabad and thereafter shall take such
departmental
and
other
action
as
provided in law within a period of three
months and submit a progress report to
this Court.

B. The petitioner shall be entitled to
cost,
exemplary
in
nature,
for
harassment and illegal action of the
respondents to which he has made to
suffer, which I quantify to Rs.50,000/-.
The aforesaid cost at the first instance
shall be paid by respondent No.1 but it
shall be at liberty to recover the same
from the officials concerned who are
responsible after making such enquiry as
directed above and provided in law.

C. This case shall be listed in the
first week of February, 2012 only for the
purpose of considering progress report
as directed above but otherwise it stands
disposed of.
Case law discussed:
(1991) 4 SCC 406; (1980) 3 SCC 526; (1995) 3
SCC 757; (2004) 5 SCC 26

(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Police is Police. None can police
the Police. It can make wonders and
miracles. Hardened criminals can be