# Heeraman Prasad v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 1406
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-23
- **Case number:** Writ -A No. 39076 of 2015
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heeraman-prasad-v-state-of-u-p-ors-52505
- **Pages:** 7

## Headnote

Service Law - claim for compassionate
appointment-rejected-father's
post
as
Sahyogi to the Collection Amin was
abolished upon his death-Uttar Pradesh
Co-operative Collection Fund and the
Amins and other Staff Service Rules,
2002-Rule 5-rules have statutory forceframed by the Governor-Section 130 read
with Section 92(A) and Section 92(B) of
the U.P. Cooperative Societies Act, 1965deceased employee-government servantpost's abolition did not preclude offering a
compassionate appointment on a suitable
Group 'D' post-rejection order quasheddirection
to
grant
compassionate
appointment-petition allowed. (paras 10,
12, 14, 15 and 16)

HELD:
Rule 5 clearly stipulates that strength of service
of each category of post under the service cadre
mentioned under the Rules would be with prior
approval of the Government. The rules that
have been framed by the Governor taking aid to
the provision as contained under Section 130
read with Section 92(A) and Section 92(B) of
the U.P. Cooperative Societies Act, 1965, are
definitely having statutory force. Number of
posts of Sahyogi to the Amin are prescribed to
be 90 in the service cadre and it appears that
immediately after rules were framed and
brought into force, the Government decided to
regularize all such Sahyogis working on a
temporary basis and so resultantly the order of
confirmed appointment was issued in favour of
9 All. Heeraman Prasad Vs. State of U.P. & Ors.
1407
the petitioner's father on 23rd November, 2002.
(para 10)

Thus, there is no quarrel about the status of the
vacancy as to be belonging to the government
service within the definition of the rules and
appointment order issued as a consequence
thereof to the father of the petitioner. The plea
taken in the counter affidavit vide paragraphs 5
& 6 to the effect that petitioner's father was not
a government employee is, therefore, clearly
misplaced one. In the entire counter affidavit
the appointment order has not been disputed,
nor it has been questioned on the ground of
being obtained by fraud or by any mischief at
the end of petitioner's father. (Para 12)

Insofar as the other plea taken in the order
impugned that since cadre in which petitioner's
father was appointed became a dying cadre as
the word and expression 'otherwise' would
relate to all such eventualities including the
death of the employee as contemplated under
the rules, to treat the post abolished as a
consequence thereof, also does not appeal to
reason. The dying in harness Rules, 1974 do not
provide that a person seeking compassionate
should be offered appointment upon such posts
only on which the deceased employee was
working and, therefore, the appointment could
have been offered on any group 'D' post. It is
not a case of respondent that no other group 'D'
post' available to accommodate the petitioner in
the matter of compassionate appointment. (Para
14)

In a judgment of Supreme Court in the case of
the St. of Uttar Pradesh & ors. v. Premlata in
Civil Appeal No. - 6003 of 2021 decided on 5th
October, 2021 the Court has very categorically
held that suitability of the posts means that the
applicant seeking compassionate appointment
should be offered appointment only in the status
in which his father was working. For instance, if
father was working on a group 'D' post then a
dependent should not be offered group 'C' post.
The appointment on equivalent post can be
made. (Para 15)

Petition allowed. (E-13)

List of Cases cited:

## Text

1406 INDIAN LAW REPORTS ALLAHABAD SERIES
been considered is beyond 34 months,
therefore, in view of the Government Order
dated 16.01.2007 and also in view of the
dictum of Hon'ble Apex Court in re; Sushil
Kumar Singhal Vs. Pramukh Sachiv
Irrigation
Department
and
Others
(supra), such re-fixation may not be
permitted in the eyes of law. Since no
recital has been given regarding any
undertaking at the time of making access
payment to the petitioner, therefore, in
view of the dictum of Hon'ble Apex Court
in re; High Court of Punjab and
Haryana and Other Vs. Jagdev Singh
(supra)
such
recovery
may
not
be
permitted.

12. Accordingly, the writ petition is
allowed.
Consequently,
the
impugned
orders dated 06.09.2024 (contained in
Annexure
No.
1)
and
07.09.2024
(contained in Annexure No. 2) are hereby
set aside/ quashed.

13. The opposite parties are further
directed to release the entire service
benefits of the petitioner including pension,
gratuity, leave encashment and other
applicable
benefits,
with
expedition,
preferably within a period of six weeks
from the receipt of certified copy of the
order of this Court, provided the petitioner
has completed all required formalities,
failing which the petitioner would be
entitled for the interest @ 8% per annum on
delayed payment.

14. With the aforesaid observations
and directions, the writ petition is allowed.

15. No order as to costs.
----------
(2024) 9 ILRA 1406
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2024
BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ -A No. 39076 of 2015

Heeraman Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ashutosh Kumar Pandey, Sanjeev Singh, Sujeet
Kumar Rai

Counsel for the Respondents:
C.S.C.

Service Law - claim for compassionate
appointment-rejected-father's
post
as
Sahyogi to the Collection Amin was
abolished upon his death-Uttar Pradesh
Co-operative Collection Fund and the
Amins and other Staff Service Rules,
2002-Rule 5-rules have statutory forceframed by the Governor-Section 130 read
with Section 92(A) and Section 92(B) of
the U.P. Cooperative Societies Act, 1965deceased employee-government servantpost's abolition did not preclude offering a
compassionate appointment on a suitable
Group 'D' post-rejection order quasheddirection
to
grant
compassionate
appointment-petition allowed. (paras 10,
12, 14, 15 and 16)

HELD:
Rule 5 clearly stipulates that strength of service
of each category of post under the service cadre
mentioned under the Rules would be with prior
approval of the Government. The rules that
have been framed by the Governor taking aid to
the provision as contained under Section 130
read with Section 92(A) and Section 92(B) of
the U.P. Cooperative Societies Act, 1965, are
definitely having statutory force. Number of
posts of Sahyogi to the Amin are prescribed to
be 90 in the service cadre and it appears that
immediately after rules were framed and
brought into force, the Government decided to
regularize all such Sahyogis working on a
temporary basis and so resultantly the order of
confirmed appointment was issued in favour of
9 All. Heeraman Prasad Vs. State of U.P. & Ors.
1407
the petitioner's father on 23rd November, 2002.
(para 10)

Thus, there is no quarrel about the status of the
vacancy as to be belonging to the government
service within the definition of the rules and
appointment order issued as a consequence
thereof to the father of the petitioner. The plea
taken in the counter affidavit vide paragraphs 5
& 6 to the effect that petitioner's father was not
a government employee is, therefore, clearly
misplaced one. In the entire counter affidavit
the appointment order has not been disputed,
nor it has been questioned on the ground of
being obtained by fraud or by any mischief at
the end of petitioner's father. (Para 12)

Insofar as the other plea taken in the order
impugned that since cadre in which petitioner's
father was appointed became a dying cadre as
the word and expression 'otherwise' would
relate to all such eventualities including the
death of the employee as contemplated under
the rules, to treat the post abolished as a
consequence thereof, also does not appeal to
reason. The dying in harness Rules, 1974 do not
provide that a person seeking compassionate
should be offered appointment upon such posts
only on which the deceased employee was
working and, therefore, the appointment could
have been offered on any group 'D' post. It is
not a case of respondent that no other group 'D'
post' available to accommodate the petitioner in
the matter of compassionate appointment. (Para
14)

In a judgment of Supreme Court in the case of
the St. of Uttar Pradesh & ors. v. Premlata in
Civil Appeal No. - 6003 of 2021 decided on 5th
October, 2021 the Court has very categorically
held that suitability of the posts means that the
applicant seeking compassionate appointment
should be offered appointment only in the status
in which his father was working. For instance, if
father was working on a group 'D' post then a
dependent should not be offered group 'C' post.
The appointment on equivalent post can be
made. (Para 15)

Petition allowed. (E-13)

List of Cases cited:

1. Kaushlendra Kuwar Vs Registrar, Cooperative
Societies, U.P. Lucknow & ors. in Civil Misc. Writ
Petition No.- 44810 of 2011 decided on 5th
April, 2007

2. The St. of Uttar Pradesh & ors. Vs Premlata in
Civil Appeal No. - 6003 of 2021 decided on 5th
October, 2021

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

1. Heard Sri Sanjeev Singh and Sri
Ashutosh Kumar Pandey, learned counsel
for the petitioner and learned Standing
Counsel for the State respondents.

2. Petitioner before this Court is
aggrieved by the decision taken by the
respondents under the order impugned
dated 23rd February, 2015, whereby claim
of
the
petitioner
for
compassionate
appointment has been rejected solely on the
ground that petitioner's father was working
as an Aid (Sahyogi) to the Collection Amin
and the relevant service rules, namely, Uttar
Pradesh Co-operative Collection Fund and
the Amins and other Staff Service Rules,
2002 (hereinafter referred to as 'Rules,
2002') very categorically provided that the
post of Sahyogi of Amin that were 90 in
number stand abolished with the retirement
of such Sahyogi of Amin or otherwise.
Since father of the petitioner died on 12th
May, 2012, according to the respondents,
the post also got abolished and as it had
become a dying cadre.

3. Assailing the order impugned
Sri Sanjeev Singh, learned counsel for the
petitioner, in the first instance, has drawn
the
attention
of
the
Court
to
the
appointment order of the petitioner's father
issued to him on 23rd November, 2002,
which categorically records that petitioner's
father is appointed as Sahyogi in the
regular pay scale as admissible in law to
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
the post in question w.e.f. 30th October,
2002 as a government employee. He further
submits that petitioner's father was in the
respondent's establishment ever since 1984
when he was initially appointed though he
was working only on a temporary basis but
with the confirmation in service giving him
a permanent post in the employment of
Government service, he became a regular
Government employee in the year 2002.

4. In such above circumstances, Sri
Sanjeev Singh has argued that Uttar
Pradesh Recruitment of Dependents of
Government Servant Dying in Harness
Rules, 1974 as were applicable on the date
of death of the father of the petitioner will
certainly be applicable and even if posts
were not there since petitioner had moved
an application on 14th June, 2013 seeking
appointment as a Class IV employee,
petitioner could have been adjusted against
any group 'D' post. Still further he submits
that if vacancies are not there as per the
relevant dying in harness rules, 1974 a
supernumerary post could have been
created.

5. Learned counsel for the
petitioner has also placed reliance upon the
judgment of a coordinate Bench of this
Court in the case of Kaushlendra Kuwar
v. Registrar, Cooperative Societies, U.P.
Lucknow and others in Civil Misc. Writ
Petition No.- 44810 of 2011 decided on 5th
April, 2007, a copy whereof has been
brought on record as Annexure- 1 to the
affidavit filed in support of the misc.
application dated 12th December, 2023.

6.

Meeting
the
arguments
advanced by learned counsel for the
petitioner, learned Standing Counsel has
sought to defend the order for the reasons
assigned
therein.
In
support
of
his
argument, he has relied upon paragraph 5
and 6 of the counter affidavit in which it
has been stated that petitioner's father was
not appointed against any government post
as per the amended Rules, 2002. It has also
been submitted that merely because the pay
fixation was done and an employee would
not become a government employee as the
payment of salary was made from fund of
the district bank. He has also sought to
dispute the appointment order issued to the
petitioner's father stating therein that he
was being offered appointment on a post
which belonged to the government service.

7. Having heard learned counsel
for the respective parties and having
perused the records, I find that the
petitioner's father though was appointed in
the year 1984 in a temporary capacity but
was later on came to be offered confirmed
appointment on the post of Sahyogi to the
Collection Amin on 23rd November, 2002
along with two other persons. The name of
petitioner's father appears on serial No.- 2
of the appointment order. The entire
appointment order for better appreciation as
has been brought on record as Annexure - 3
to
the
writ
petition
is
reproduced
hereunder:

"आदेि
उत्तर प्रदेि हक री िंग्रह सनसि तथ अन्य कमाच री
 ेि सनयम िली, 2002 के सनयम-6 में सनसहत व्यिस्थ के
अनु र सनम्न सििरण के हयोगी को िेतनम न 2550-552660-60-3200 में सदन िंक 30.10.2002 े रक री ेि
में सनयुि सकय ज त है। इनकी प रस्पररक िररष्ठत ि द में यथ
सिसि सनि ाररत होगीः-

ि
म िंक
न
म
पदन म
न म जनपद
1
2
3
4
1.
 िाश्री र म
प्रक ि स िंह
 हयोगी
ग जीपुर
9 All. Heeraman Prasad Vs. State of U.P. & Ors.
1409
2.
उपेन्र न थ
र म
 हयोगी
ग जीपुर
3.
ओम प्रक ि
सति री
 हयोगी
ग जीपुर

 हक री ेि में 30.10.2002 े तैन त होने के
पश्च त् इन पर उत्तर प्रदेि रक री िंग्रह सनसि तथ अन्य कमाच री
 ेि सनयम िली 2002 तथ उत्तर प्रदेि रक री कमाच री आचरण
सनयम िली 1956 तथ उत्तर प्रदेि रक र द्व र ज री भी आदेि
ल गू होगें।
ह०
(हृदयर म चौरस य )
उप सनबन्िक,
 हक री समसतय ाँ, उ०प्र०,
ि र ण ी मण्डल,
ि र ण ी।
क य ालय उप सनबन्िक, हक री समसतय िं, उ०प्र०,
ि र ण ी मण्डल, ि र ण ी।
पत् िंकः 4235-39/िेत्ीय िंग्रह-लेख / सदन िंकः
निम्बर 23, 2002"

8. The language in which the
appointment
order
is
issued,
clearly
demonstrates that petitioner's father was
appointed in pay scale Rs.2550-55-266060-3200 w.e.f. 30th October, 2002 in
government service and also it was
provided that seniority will be determined
later on.

9. Coming to the service rules aid
of which has been taken by both learned
counsel for the petitioner and learned
Standing Counsel, namely U.P. Cooperative
Collection Fund and the Amins and other
Staff Rules, 2002, I find that the post of
Sahyogi to the Collection Amin was a cadre
post and posts were 90 in number as
sanctioned though the rules declared it to
be a dying cadre as the post would stand
abolished in the event government servant
retired or otherwise. Rule 5 of Part-II of the
Rules, 2002 for better appreciation are
reproduced hereunder:

"5.(1) The strength of the
service and of each category of
posts therein shall be such as may
be determined by the Registrar with
the prior approval of the State
Government.
(2) The strength of the
service and of each category of
posts therein shall until orders
varying the same are passed under
sub-rule (1) be as given in the
Schedule below.

Schedule
Sl.
No.
Name of the
post
No.
of
Post
Remark
1
Amin
206
Three
posts
in
each
district
however
in district
having
less than
three
tehsils,
two post
in
each
district.
2
Sahyogi's of
Amin
90
The post
falling
vacant
due
to
retirement
or
otherwise
shall
cease
to
exist.
3
Amin
on
Commission
2689 The post
falling
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
basis
vacant
due
to
retirement
or
otherwise
shall
cease
to
exist.

(3).
The
Appointing
Authority may leave unfilled or the
Government may hold in abeyance
any vacant post without thereby
entitling
any
person
to
compensation or the Government
may
create
such
additional
permanent or temporary posts as it
may consider proper."

10. Rule 5 clearly stipulates that
strength of service of each category of post
under the service cadre mentioned under
the Rules would be with prior approval of
the Government. The rules that have been
framed by the Governor taking aid to the
provision as contained under Section 130
read with Section 92(A) and Section 92(B)
of the U.P. Cooperative Societies Act,
1965, are definitely having statutory force.
Number of posts of Sahyogi to the Amin
are prescribed to be 90 in the service cadre
and it appears that immediately after rules
were framed and brought into force, the
Government decided to regularize all such
Sahyogis working on a temporary basis and
so resultantly the order of confirmed
appointment was issued in favour of the
petitioner's father on 23rd November, 2002.

11. It is pertinent to mention here
that appointment was offered to the
petitioner's father on 30th October, 2002
w.e.f. the date of enforcement of the rules
with the publication of the same in the
Gazette.
12. Thus, there is no quarrel about
the status of the vacancy as to be belonging
to the government service within the
definition of the rules and appointment
order issued as a consequence thereof to the
father of the petitioner. The plea taken in
the counter affidavit vide paragraphs 5 & 6
to the effect that petitioner's father was not
a government employee is, therefore,
clearly misplaced one. In the entire counter
affidavit the appointment order has not
been disputed, nor it has been questioned
on the ground of being obtained by fraud or
by any mischief at the end of petitioner's
father.

13.

In
such
circumstances,
therefore, to hold the petitioner's father was
not working on a government post seems to
have been made under some confusion at
the end of the respondents while deciding
the representation/ application of the
petitioner
seeking
compassionate
appointment.

14. Insofar as the other plea taken
in the order impugned that since cadre in
which petitioner's father was appointed
became a dying cadre as the word and
expression 'otherwise' would relate to all
such eventualities including the death of
the employee as contemplated under the
rules, to treat the post abolished as a
consequence thereof, also does not appeal
to reason. The dying in harness Rules, 1974
do not provide that a person seeking
compassionate
should
be
offered
appointment upon such posts only on
which the deceased employee was working
and, therefore, the appointment could have
been offered on any group 'D' post. It is not
a case of respondent that no other group 'D'
post'
available
to
accommodate
the
petitioner in the matter of compassionate
appointment.
9 All. Heeraman Prasad Vs. State of U.P. & Ors.
1411
15. In a judgment of Supreme
Court in the case of the State of Uttar
Pradesh & others v. Premlata in Civil
Appeal No. - 6003 of 2021 decided on 5th
October,
2021
the
Court
has
very
categorically held that suitability of the
posts means that the applicant seeking
compassionate appointment should be
offered appointment only in the status in
which his father was working. For instance,
if father was working on a group 'D' post
then a dependent should not be offered
group 'C' post. The appointment on
equivallent post can be made. Vide
paragraphs 10.2, 10.3 & 11 the Court held
thus:

"10.2 The Division Bench
of the High Court in the present
case has interpreted Rule 5 of
Rules 1974 and has held that
'suitable post' under Rule 5 of the
Rules 1974 would mean any post
suitable to the qualification of the
candidate irrespective of the post
held by the deceased employee. The
aforesaid interpretation by the
Division Bench of the High Court is
just opposite to the object and
purpose
of
granting
the
appointment
on
compassionate
ground. 'Suitable post' has to be
considered, considering status/post
held by the deceased employee and
the
educational
qualification/eligibility criteria is
required
to
be
considered,
considering the post held by the
deceased
employee
and
the
suitability of the post is required to
be considered vis a vis the post held
by
the
deceased
employee,
otherwise
there
shall
be
no
difference/distinction between the
appointment
on
compassionate
ground
and
the
regular
appointment. In a given case it may
happen that the dependent of the
deceased
employee
who
has
applied
for
appointment
on
compassionate ground is having
the educational qualification of
Class-II or Class-I post and the
deceased employee was working on
the post of Class/Grade-IV and/or
lower than the post applied, in that
case
the
dependent/applicant
cannot seek the appointment on
compassionate
ground
on
the
higher post than what was held by
the deceased employee as a matter
of right, on the ground that he/she
is eligible fulfilling the eligibility
criteria of such higher post. The
aforesaid shall be contrary to the
object and purpose of grant of
appointment
on
compassionate
ground
which
as
observed
hereinabove is to enable the family
to tide over the sudden crisis on the
death of the bread earner. As
observed above, appointment on
compassionate ground is provided
out
of
pure
humanitarian
consideration
taking
into
consideration the fact that some
source of livelihood is provided and
family would be able to make both
ends meet.
10.3 In the present case as
observed hereinabove initially the
respondent applied for appointment
on compassionate ground on the
post of Assistant Operator in Police
Radio Department. The same was
not accepted by the Department
and rightly not accepted on the
ground that she was not fulfilling
requisite eligibility criteria for the
post
of
Assistant
Operator.
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
Thereafter the respondent again
applied for appointment on the
compassionate ground on the post
of Workshop Hand. The case of the
respondent
was
considered,
however, she failed in the physical
test
examination,
which
was
required
as
per
the
relevant
recruitment
rules
of
2005.
Therefore,
thereafter
she
was
offered
appointment
on
compassionate
ground
as
Messenger which was equivalent to
the post held by the deceased
employee.
Therefore
appellants
were justified in offering the
appointment to the respondent on
the post of Messenger. However, the
respondent refused the appointment
on such post.

11. In view of the above
and for the reasons stated above,
the Division Bench of the High
Court
has
misinterpreted
and
misconstrued Rule 5 of the Rules
1974 and in observing and holding
that the 'suitable post' under Rule 5
of the Dying In Harness Rules 1974
would mean any post suitable to the
qualification of the candidate and
the appointment on compassionate
ground is to be offered considering
the educational qualification of the
dependent.
As
observed
hereinabove such an interpretation
would
defeat
the
object
and
purpose
of
appointment
on
compassionate ground."

16.

In
such
circumstances,
therefore, I am of the considered view that
petitioner could have been offered any
group 'D' post in the establishment of the
respondent.
17. Thus, the order impugned
rejecting the claim of the petitioner for
compassionate appointment cannot be
sustained in law and, accordingly, the order
dated 23rd February, 2015 (Annexure - 7 to
the writ petition) is hereby quashed.

18. The appointment order to the
petitioner on the compassionate basis shall
be issued by the respondents within
maximum period of 30 days from the date
of production of certified copy of this order
if otherwise there is no legal impediments.

19. It is clarified that petitioner's
claim will not be rejected on any technical
ground
including
the
ground
that
appointment is to be offered after five years
of the death of the deceased employee.

20. There will be no order as to
cost.
----------
(2024) 9 ILRA 1412
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2024

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Revision No. 4562 of 2024

Sanjeev Nayan Mishra ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Ayush Mishra, Prabha Shanker Mishra,
Vinay Kumar Tiwari

Counsel for the Opposite Parties:
G.A.

Criminal Law -Code of Criminal Procedure,
1973 - Section 397/401 - order rejecting
discharge application challenged- -Section