# Hemant Kumar Singh v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 669
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-25
- **Case number:** Special Appeal (D) No. 1063 of 2020
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemant-kumar-singh-v-state-of-u-p-ors-46113
- **Pages:** 4

## Headnote

- Maintainability - Writ order passed on
consent
-
Though
availability
of
alternative remedy is not a bar in
entertaining writ petition under Article
226 of the Constitution, but writ petition
was dismissed on the admitted fact of
availability of alternative remedy - Held,
Special Appeal is not maintainable as it
has been filed against an order passed
with consent - Appellant-petitioner is at
liberty to seek his appropriate remedy
670 INDIAN LAW REPORTS ALLAHABAD SERIES
before the learned Single Judge. (Para 9,
11 and 13)
Special Appeal dismissed. (E-1)
Cases referred :-

## Text

1 All. Hemant Kumar Singh Vs. State of U.P. & Ors.
669
person. In fact, such appointment is
violative of rule of equality enshrined and
guaranteed under Article 14 of the
Constitution. As per settled law, when any
appointment is to be made in Government
or semi-government or in public office,
cases of all eligible candidates must be
considered alike. That is the mandate of
Article 14. Normally, therefore, the State or
its instrumentality making any appointment
to public office, cannot ignore such
mandate. At the same time, however, in
certain circumstances, appointment on
compassionate ground of dependants of the
deceased employee is considered inevitable
so that the family of the deceased employee
may not starve. The primary object of such
scheme is to save the bereaved family from
sudden financial crisis occurring due to
death of the sole bread earner. It is thus
an exception to the general rule of equality
and not another independent and parallel
source of employment."

19. In the present case, the appellant
has already survived for more than nine
years after the death of his mother and as
such, he had no financial constraint.
Moreover, he has already received Rs. 13
Lakhs towards the retiral dues of his
mother and thus, has sufficient amount for
his survival. Law in this respect is also
clear. In the case of Punjab National Bank
& Ors V. Ashwini Kumar Taneja (2004)
7 SCC 265, and in General Manager
(D&PB) & Ors V Kunti Tiwari & Anr
(2004) 7 SCC 271, the Apex Court has held
that:

"compassionate appointment has to be
made in accordance with the Rules,
Regulations or administrative instructions
taking into consideration the financial
condition of the family of the deceased.
Whereas the scheme provides that in case
the family of the deceased gets the
retrial/terminal
benefits
exceeding
a
particular ceiling, the dependant of such
deceased employee, would not be eligible
for compassionate appointment."

20. Considering the cumulative effect
of the entire facts, we are of the view that
the
appellant
is
not
entitled
for
compassionate appointment. Learned single
Judge was justified in dismissing the writ
petition. The appeal has no substance, the
same is accordingly dismissed.
----------
(2021)01ILR A669
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Special Appeal (D) No. 1063 of 2020

Hemant Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Praveen Kumar, Damodar Singh, Sri
Devendra Vikram Singh, Sri Pradeep Kumar

Counsel for the Respondents:
C.S.C.

A. Practice and Procedure - Special Appeal
- Maintainability - Writ order passed on
consent
-
Though
availability
of
alternative remedy is not a bar in
entertaining writ petition under Article
226 of the Constitution, but writ petition
was dismissed on the admitted fact of
availability of alternative remedy - Held,
Special Appeal is not maintainable as it
has been filed against an order passed
with consent - Appellant-petitioner is at
liberty to seek his appropriate remedy
670 INDIAN LAW REPORTS ALLAHABAD SERIES
before the learned Single Judge. (Para 9,
11 and 13)
Special Appeal dismissed. (E-1)
Cases referred :-
1. The Medhodist Church in India Vs The
Bareilly Development Authority, AIR 1988 ALL
151,
2. Suresh Chandra Tewari Vs District Supply
Officer & anr., AIR 1992 ALL 331,
3. Narendra Kumar Pandey Vs S.B.I. through its
Chief G.M. , Service Bench No. 757 of 1999,
4. St. of U.P. & anr. Vs U.P. Rajya Khanij Vikas
Nigam S.S. & ors., Appeal (Civil) No. 3202 of
2008 [S.C.],
5. Genpact India Private Limited Vs Deputy
Commissioner of Income Tax & anr.,Special
Leave Petition (Civil) No. 20728 of 2019
6. St. of Orissa & ors. Vs Gokulananda
Jena,(2003) 6 SCC 465,
7. S.A. Khan Vs St. of Har. ,(1993) 2 SCC 327,
8. Mohan Lal Vs St. of U.P. & ors. ,(2013) 100
ALR 38,
9.
Surendra
Rao
Vs
Regional
Transport
Authority, Gorakhpur Region & ors.,1992 AIR All
211,
10. Daljit Kaur & anr. Vs Muktar Steels Pvt. Ltd
& anr.,(2013) 16 SCC 607 and,
11. Kuber Singh Vs St. of U.P. & 3 ors., Special
Appeal No. 1124 of 2019.

(Delivered by Hon'ble Ramesh Sinha, J. &
Hon'ble Samit Gopal, J.)

1. Heard Sri Praveen Kumar, learned
counsel for the appellant-petitioner through
Video Conferencing and Sri Rajiv Singh,
learned Standing Counsel appearing for the
respondents, who is physically present in
the Court.

2. The present Special Appeal has
been filed against the impugned judgement
and order dated 12.10.2020 passed by the
learned Single Judge in Writ-A No. 3553 of
2019 (Hemant Kumar Singh Vs. State of
U.P. and 2 others) whereby the writ petition
has been dismissed on the ground of
existence of alternative remedy by leaving
it open to the appellant-petitioner to avail
such remedy if so advised.

3. The issue before this Court is limited
only to the extent as to whether a learned
Single Judge once at the time of raising a
preliminary
objection
regarding
maintainability of the writ petition on the
ground of an alternative remedy has
proceeded to entertain the writ petition and
call for a counter affidavit in the matter on
merits and later on another learned Single
Judge dismissed the said writ petition on the
ground of existence of alternative remedy
with the consent of learned counsel for the
parties and as such will it be open for the
other learned Single Judge to do so. The facts
of the present case are not being attended to
by this Court as the question is in a narrow
compass as stated above.

4. Learned counsel for the appellantpetitioner argued that once the learned Single
Judge before whom a preliminary objection
regarding maintainability of the writ petition
on the availability of alternate remedy was
taken and the Court comes to a finding that it
is unable to sustain the said objection, it will
not be open for another learned Single Judge
to dismiss the writ petition on the ground of
existence of alternative remedy. Thus the said
order is impugned herein. Learned counsel
for the appellant-petitioner has placed
reliance upon the following judgements to
buttress his submissions:-

"(i) The Medhodist Church in India
Vs. The Bareilly Development Authority:
AIR 1988 ALL 151;
1 All. Hemant Kumar Singh Vs. State of U.P. & Ors.
671

(ii)
Suresh
Chandra Tewari
Vs.
District Supply Officer and another: AIR
1992 ALL 331;

(iii) Narendra Kumar Pandey Vs. State
Bank of India through its Chief G.M.:
Service Bench No. 757 of 1999;

(iv) State of U.P. and another Vs. U.P.
Rajya Khanij Vikas Nigam S.S. & others:
Appeal(Civil) No. 3202 of 2008 [S.C.];

(v) Genpact India Private Limited V.
Deputy Commissioner of Income Tax
&Another: Special Leave Petition (Civil)
No. 20728 of 2019."

5. Per contra, learned Standing Counsel
while opposing the present Special Appeal
argued that the learned Single Judge had
initially when the matter was taken up before
him and a preliminary objection regarding the
maintainability of the writ petition on the
ground of availability of alternate remedy
was raised, considered the same but
proceeded to examine the matter on merits in
view of the nature of dispute. It was argued
next
that
the
order
impugned
dated
12.10.2020 is an order with consent and as
such challenge to the same is not permissible
in law. Learned Standing Counsel has placed
reliance upon the following judgements to
buttress his submissions that no appeal is
maintainable against a consent order, which
are as follows:

"(i) State of Orissa and others Vs.
Gokulananda Jena: 2003(6) SCC 465;

(ii) S.A. Khan Vs. State of Haryana:
1993(2)SCC 327;

(iii) Mohan Lal Vs. State of U.P. and
others: 2013(100)ALR 38;

(iv)
Surendra
Rao
Vs.
Regional
Transport Authority, Gorakhpur Region and
others: 1992 AIR(All) 211;

(v) Daljit Kaur and another Vs.
Muktar Steels Pvt. Ltd and another:
2013(16) SCC 607 and;

(vi) Kuber Singh Vs. State of U.P. and
3 others: Special Appeal No. 1124 of
2019."

6. We have heard learned counsel for
the parties and have perused the record.

7. The Writ-A No. 3553 of 2019
(Hemant Kumar Singh Vs. State of U.P.
and 2 others) was initially taken up on
07.3.2019 and the learned Single Judge
passed the following orders:

"Although, Sri J.S. Bundela, the
learned Standing Counsel has raised a
preliminary objection to the maintainability
of the writ petition on the ground that the
petitioner has an alternative remedy of
preferring a statutory appeal, this Court
finds itself unable to sustain this objection
since it is asserted that although the
enquiry report was submitted on 23 August
2013, the Disciplinary Authority has
chosen to pass final orders six years
thereafter in terms of the order impugned.

Additionally, it is asserted that no oral
enquiry was conducted before imposition of
a major penalty.

Learned Standing Counsel prays for
and is granted six weeks' time to file a
Counter Affidavit in this petition. The
petitioner shall have two weeks thereafter
to file his Rejoinder Affidavit.

List thereafter. "

8. Subsequently, the said writ petition
came to be dismissed on the ground of
existence of alternate remedy leaving it
open to the petitioner-appellant to avail
such remedy if so advised and the order
passed on 12.10.2020 which reads as
under:

"Shri Pradeep Kumar, learned Senior
Counsel for the petitioner fairly admits that
672 INDIAN LAW REPORTS ALLAHABAD SERIES
there is a provision for taking the order of
dismissal in appeal before the competent
authority.

The writ petition is dismissed on the
ground of existence of alternative remedy.
It is open to the petitioner to avail such
remedy if so advised."

9. Argument of learned counsel for
the appellant-petitioner that the learned
Single Judge could not have dismissed the
writ petition on the ground of alternate
remedy is fallacious from the bare perusal
of the order dated 12.10.2020 which is
impugned in the present special appeal, it is
apparent that the same is an order passed
by a consent of learned counsel for the
parties appearing in the matter that there is
a provision for taking the order impugned
therein in appeal before the competent
authority. In so far as the judgements relied
upon by learned counsel for the appellantpetitioner is concerned, the same are not of
any help in the dispute in the present matter
as the same are addressing the question as
to maintainability of a writ petition during
the existence of an alternate remedy to a
person who has approached the Court. The
position of law as settled till date that
availability of alternative remedy is not a
bar in entertaining writ petition under
Article 226 of the Constitution of India is
not in dispute. The argument of learned
counsel for the appellant-petitioner is at an
error in the matter as the writ petition was
dismissed by the order impugned on the
admitted fact of availability of alternative
remedy.

10. In so far as it relates to the
argument of learned Standing Counsel, the
same does impress us and is also supported
by the said view through the judgements
relied by him that no appeal lies against a
consent order.

11. The present Special Appeal thus is
not maintainable as it has been filed against
an order passed with consent.

12. The present Special Appeal is thus
dismissed as not maintainable.

13. Needless to say, the appellantpetitioner is at liberty to seek his
appropriate remedy before the learned
Single Judge, if so advised.

14. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person
(s)
(preferably Aadhar
Card)
mentioning the mobile number (s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

15.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)01ILR A672
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2020

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal (D) No. 1189 of 2020

Km. Sunita ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Udai Narain Khare, Sri Basdeo Nishad