# Harendra Singh v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 877
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-31
- **Case number:** Writ-A No. 58341 of 2010
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harendra-singh-v-state-of-u-p-ors-43221
- **Pages:** 5

## Headnote

Constitution of India, Art.-14-Compassionate
appointment-claimed for post of S.I. Exciserejected on ground once accepted on post
of Junior Clerk-appointment can not be
claimed
as
matter
of
right-secondly
misinterpreting the G.O. treating ban on
fresh
appointment-be
fulfilled
through
100% promotion from constable-held-as
ban relied by authorities-merely a request
of department to the government-and
when similarly situated dependents given
appointment on post of S.I.-no jurisdiction
for different treatment to petitioner-order
quashed-necessary direction given.
Held: Para-9 & 11

## Text

2 All] Harendra Singh Vs. State of U.P. & Ors.
877
U.P. Zila Adhikari Chakiya [2014 (8)
ADJ 593 (DB) 693] has been cited.
11. So far as the second issue of
taking a decision in the open meeting of
the Gaon Sabha is concerned, we are
unable to agree with the proposition of the
learned Standing counsel and the counsel
for the contesting respondent that no such
meeting is necessary.
12. It has been observed by the
Division Bench of this Court in the case
of Shiv Kumar VS. U.P. Zila Adhikari
Chandauli that;
"A bare perusal of Clause 4.4. of the
Govt. order dated 3.7.1990, it is evident
that any fair price shop license would be
opened only after a resolution is passed in
the open meeting of the Gaon Sabha. It is
only on the collective opinion of such a
meeting that such allotment can be made.
After such a resolution is passed, the
same has to be processed through the
Tehsil Level Committee for rural area
........ as defined in Clause 5 of the G.O.
Dated 17.8.2002.... The allotment has to
be made as per the terms and conditions
contained in Clause 10 of the said G.O.
which also envisages the grant of license
on compassionate basis."
13. Therefore, even in the matter of an
individual consideration of compassionate
grant of license under clause 10 of G.O. Of
2002, it is necessary to hold an open meeting
of the Gaon Sabha. It is only after such a
resolution is passed that the same has to be
considered by the Tehsil Level Committee
and then a decision to be taken by the Sub
Divisional Magistrate.
14. Thus, in view of the aforesaid
factual aspects and also the law and
settled legal propositions discussed above,
we are of the view that the order
impugned dated 31.8.2013 passed by the
Sub Divisional Magistrate, Kayamganj,
District Farrukhabad, respondent no. 4 is
not sustainable in nature and the present
writ petition deserves to be allowed.
15. Hence, the writ petition succeeds
and is allowed and the order dated
31.8.2013 is hereby quashed. It is directed
that an open meeting of the Gram Sabha
be convened and the proposal given by
the Gram Sabha be considered by the
Tehsil
Level
Committee
whereafter
considering the reputation of the deceased
license holder as desirable and also the
disqualification, the S.D.M. shall proceed
to get the matter processed in accordance
with the law. It is also directed that the
aforesaid
exercise
be
completed
expeditiously, preferably within a period
of one month from today so that the
villagers
may not be put to any
inconvenience for distribution of fair
price ration.
16. No order is passed as to cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Writ-A No. 58341 of 2010
Harendra Singh
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Bhola Nath Yadav, Sri Raj Kumar
Yadav, Sri Santosh Yadav, Sri Tarun
Agarwal, Sri Vinod Kumar Yadav.
878
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-14-Compassionate
appointment-claimed for post of S.I. Exciserejected on ground once accepted on post
of Junior Clerk-appointment can not be
claimed
as
matter
of
right-secondly
misinterpreting the G.O. treating ban on
fresh
appointment-be
fulfilled
through
100% promotion from constable-held-as
ban relied by authorities-merely a request
of department to the government-and
when similarly situated dependents given
appointment on post of S.I.-no jurisdiction
for different treatment to petitioner-order
quashed-necessary direction given.
Held: Para-9 & 11
9. From the material on the record I am
satisfied that the State Government has
not issued any order imposing the ban
on compassionate appointment on the
post of Sub-Inspector Excise. In fact, it
was
a
request
of
the
Excise
Commissioner to the State Government
for imposing such ban and the Excise
Commissioner
himself,
as
stated
in
paragraph-6
of
the
supplementary
affidavit, took a decision to make the
compassionate appointment on the said
post.
11. From the aforesaid facts it is
manifest that the petitioner has been
treated differently and the action of the
respondent authorities violates Article
14 of the Constitution. In the result, the
impugned order dated 11th February,
2011, annexed as Annexure-CA-3 to the
counter affidavit, is set aside and the
matter
is
remitted
to
the
second
respondent to consider the cause of the
petitioner and pass the appropriate order
in accordance with law expeditiously.
Case Law discussed:
(2002)9 SCC 445
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1. The petitioner's father late Khem
Raj Yadav was working as a Stenographer
in the Excise Department. He died in
harness on 31st January, 2008. The
petitioner
made
an
application
for
compassionate appointment on the post of
Sub-Inspector
Excise.
However,
his
request for the said post was denied on the
ground
that
there
is
a
ban
on
compassionate appointment on the said
post and he was offered the post of Junior
Clerk vide order dated 27th March, 2008.
A copy of the said order is on the record
as Annexure-5 to the writ petition.
2. It is stated that in the compelling
circumstances the petitioner gave his
consent for appointment on the post of
Junior Clerk. However, he found that in
the case of late Shailendra Kumar Singh,
Sub-Inspector
Excise,
who
died
in
harness, his wife Smt. Jyoti Singh was
appointed on the post of Sub-Inspector
Excise under the U.P. Recruitment of
Dependant
of
Government
Servants
Dying in Harness Rules, 1974.
3. The petitioner initially preferred this
writ petition for a direction upon the
respondents to appoint him on the post of
Sub-Inspector Excise. Later on, by the
amendment in the writ petition, a relief has
been sought to quash the order dated 11th
February, 2011, which was passed pending
consideration of this writ petition, whereby
his representation has been rejected on the
ground that once the petitioner has accepted
the offer to be appointed on the post of
Junior Clerk, he cannot claim higher post of
Sub-Inspector Excise. It is also mentioned in
the order that the petitioner has no right to
claim the post as a matter of right.
4. A counter affidavit has been filed
on behalf of the respondent authorities
2 All] Harendra Singh Vs. State of U.P. & Ors.
879
wherein it is stated that the Excise
Commissioner, Uttar Pradesh vide his
communication dated 21st November, 1997
recommended the State Government not to
make compassionate appointment on the post
of Sub-Inspector Excise because the said post
is a sensitive post and further promotions to
the posts of Excise Inspector, Assistant Excise
Commissioner
and
Deputy
Excise
Commissioner are also made from the SubInspectors Excise. The same request was
reiterated vide a Demi- Official letter dated
28th August, 1999. It is further submitted that
in view of the recommendation of the Excise
Commissioner no compassionate appointment
was made on the post of Sub-Inspector Excise
till 15th September, 2010 when the Excise
Commissioner took a decision to make
compassionate appointment on the said post
and accordingly, the sixth respondent was
given the compassionate appointment on the
post of Sub-Inspector Excise.
5. Learned Standing Counsel has drawn
the attention of the Court to the Government
Orders dated 05th August, 2011 and 21st
December, 2011 issued in pursuance of the
recommendations
of
the
VIth
Pay
Commission that the post of the Sub-Inspector
Excise is now out of the category of posts, on
which compassionate appointment can be
made. Paragraph-5 of the Government Order
dated 05th August, 2011 reads as under:
"(5) mi vkcdkjh fujh{kd ds inksa ij 10 o"kZ
dh lsok okys gkbZLdwy mRrh.kZ vkcdkjh flikfg;ksa
,oa rkM+h i;Zos{kdksa esa ls 'kr&izfr'kr inksUufr dh
O;oLFkk j[kh tk;A"
6. I have heard learned counsel
appearing for the parties and perused the
material on record.
7. The petitioner has claimed the
appointment on the post of Sub-Inspector
Excise on compassionate ground as his
father died in harness while working in
the said department. The petitioner was
offered the appointment on the post of
Junior Clerk on the ground that on the
post
of
Sub-Inspector
Excise
no
appointment on compassionate ground
can be made as a restriction has been
imposed on compassionate appointment
on the said post. The petitioner claims that
in view of the said direction, under the
compelling circumstances he joined the
post of the Junior Clerk. It is a trite law
that
once
a
person
accepts
the
appointment on compassionate ground, he
cannot claim the appointment on higher
post
because
the
appointment
on
compassionate ground cannot be claimed
as a matter of right.
8. In the case in hand, the grievance
of the petitioner is that the respondent
authorities have violated the fundamental
right of the petitioner guaranteed under
Article 14 of the Constitution as a
discriminatory treatment has been meted
out to him by denying the appointment on
the post of Sub-Inspector Excise on the
ground of a ban imposed by the State
Government, but a similarly placed
person has been offered appointment on
the same post in spite of the said ban. The
fact
of
discrimination
has
been
elaborately pleaded by the petitioner in
the writ petition. In paragraph-6 of the
supplementary affidavit sworn by the
Deputy Excise Commissioner in the
office of the Excise Commissioner, U.P.
at Allahabad the respondent authorities
have admitted the fact that the sixth
respondent has been appointed on the post
of
Sub-Inspector
Excise.
The
said
appointment has been justified on the
ground that the ban, which was imposed
on
the
request
of
the
Excise
880
 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner, was operative only till
15th September, 2010 when the Excise
Commissioner took a decision to make
compassionate appointment on the said
post and accordingly, the sixth respondent
was appointed.
9. From the material on the record I
am satisfied that the State Government
has not issued any order imposing the ban
on compassionate appointment on the
post of Sub-Inspector Excise. In fact, it
was a request of the Excise Commissioner
to the State Government for imposing
such ban and the Excise Commissioner
himself, as stated in paragraph-6 of the
supplementary affidavit, took a decision
to make the compassionate appointment
on the said post.
10. Reliance has been placed by the
learned counsel for the petitioner on a
judgment of the Supreme Court in the
case of Surya Kant Kadam Vs. State of
Karnataka and others, (2002) 9 SCC 445,
wherein the Supreme Court directed the
respondents to consider the case of the
persons for appointment on the post of
Sub-Inspector (Excise) even though they
had
been
offered
appointment
on
compassionate appointment on the lower
post of Clerk. The Supreme Court
observed as under:
"The
learned
counsel
for
the
appellant contended that even though
Respondents 3 and 4's appointment could
not be assailed on the ground of belated
approach by the appellant but the prayer
with regard to consideration of the
appellant for the post of Sub-Inspector of
Excise could not have been rejected by
the
Tribunal.
The
learned
counsel
appearing for the State Government, on
the other hand, contended that against the
earlier order when the Tribunal denied the
relief of considering the case of the
appellant for the post of Sub-Inspector of
Excise, the appellant having not moved
this Court, the same has become final and
therefore should not be interfered with by
this Court. There is some force in the
aforesaid contention of the learned
counsel for the State. But having
considered the facts and circumstances of
the
present
case
and
admittedly
Respondents 3 and 4, who were similarly
situated like the appellant and who were
given compassionate appointment later
than the appellant, having been appointed
as Sub-Inspector of Excise, the appellant
has a justifiable grievance. It is true that
the appointment on compassionate ground
in the State of Karnataka is not governed
by any statutory rules but by a set of
administrative instructions and as such is
not enforceable in a court of law. But the
grounds on which the appellant makes out
the case for consideration of his case, is
the
violation
of
Article
14
and
discriminatory treatment meted out to the
appellant. It is undisputed that the date on
which
the
appellant
was
given
a
compassionate appointment as Second
Division Assistant/ Clerk he had the
necessary
qualification
for
being
appointed as Sub-Inspector of Excise. It is
also undisputed that Respondents 3 and 4
were given appointment initially as
Second Division Assistant/Clerk but later
than the appellant. When the State,
therefore, thought it fit to change the post
of Respondents 3 and 4 and appointed
them to the post of Sub-Inspector of
Excise, unless there is any justifiable
reason existing, there is no reason as to
why the appellant should be treated with
hostile discrimination. In the aforesaid
circumstances, we set aside the impugned
order of the Tribunal rejecting the prayer
2 All] Chandrika Vs. State of U.P. & Ors.
881
of the appellant for being considered for
the post of Sub-Inspector of Excise and
we direct that the State Government may
consider the case of appointment of the
appellant as Sub-Inspector of Excise. Be
it stated, in the event he is appointed it
would be prospective and he will not be
entitled to any retrospective benefit. The
appeals are allowed accordingly."
11. From the aforesaid facts it is
manifest that the petitioner has been
treated differently and the action of the
respondent authorities violates Article 14
of the Constitution. In the result, the
impugned order dated 11th February,
2011, annexed as Annexure-CA-3 to the
counter affidavit, is set aside and the
matter
is
remitted
to
the
second
respondent to consider the cause of the
petitioner and pass the appropriate order
in accordance with law expeditiously.
12. The writ petition is, accordingly,
allowed.
13. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2015
BEFORE
THE HON'BLE RAN VIJAI SINGH, J.
C.M.W.P. No. 66919 of 2014
Chandrika
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri B.P. Mishra, Sri Manvendra Kumar
Yadav
Counsel for the Respondents:
C.S.C., Sri Tarik Maqbool Khan
Constitution
of
India,
Art.-226Settlement of fisheries rights-petitioner
participated
in
auction
bid-being
declared highest bidder for Rs. 60,900/-
deposited
on
16.07.2014-subsequent
action by entertaining application from
stranger and cancellation of highest bidwithout jurisdiction-when cancellation
itself illegal entire subsequent exercise
itself illegal-quashed.
Held: Para-8
The matter may be examined from
another angle also, once the auction
proceeding was over, it was not open for
the revenue authorities to accept the
application, requiring the person to
deposit the money in order to earn more
venue. The settlement of fishery right
has to held strictly in accordance with
the
terms
and
conditions
of
the
advertisement and the government order
dated 17.10.1995. The action of the
revenue authorities in entertaining the
applications after the auction was over is
beyond their jurisdiction and contrary to
the aim and object of the Government
Order dated 17.10.1995 and the Full
Bench decision of this Court in the case
of Ram Kumar (supra) and conditions of
the advertisement.
Case Law discussed:
(2005(99) RD 823
(Delivered by Hon'ble Ran Vijai Singh, J.)
1. Heard Sri B.P. Mishra, learned
counsel
for
the
petitioner,
learned
Standing Counsel appearing for the Staterespondents and learned counsel for the
Gaon Sabha.
2. By means of the present writ
petition, the petitioner has prayed for
issuing a writ of mandamus directing the
respondent no. 1 to decide the petitioner's
application dated 11.8.2014 and approve
the bid of the petitioner for the pond in
dispute.