# Imran Khan v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Writ-A No. 1078 of 2023
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/imran-khan-v-state-of-u-p-ors-50143
- **Pages:** 7

## Headnote

Civil Law - Service Matter - Compassionate
Appointment - Married brother - Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 - Rule 2 clause (c) sub-clause
(iv),
'Unmarried
brothers,
unmarried
sisters and widowed mother dependent on
the deceased Government servant, if the
deceased
Government
servant
was
unmarried' - Writ petition filed seeking to
declare the expression 'unmarried' in the
said Rule ultra vires. Held: Rule-making
authority included brothers/sisters of the
deceased Government servant in the
definition of family provided they were
unmarried, and at the same time, the
Government servant was also unmarried.
If the Government servant is married,
then he has a dependent wife/children
who are primarily his responsibility. The
Court cannot sit in appeal over the
judgment and wisdom of the employer
in not including unmarried brothers and
sisters within the definition of family of
a married Government servant. Neither
would the Court under Article 226 of
the
Constitution
have
any
role
in
determining as to which family member
should be included/excluded from the
definition of family for the purpose of
compassionate
appointment.
Court
cannot suggest the manner in which the
rule-making authority should structure
or restructure the definition of family.
Nothing
to
show
as
to
how
the
exclusion of unmarried brothers/sisters
from the definition of family of a
married
Government
servant
is
manifestly arbitrary. Impugned Rule
would not fall within the embargo of
Article 14 of the Constitution of India.
(Para 18, 19)

Dismissed. (E-5)

List of Cases cited:

## Text

5 All. Imran Khan Vs. State of U.P. & Ors.
1581
terminated and who is desirous of getting
back wages is required to either plead or at
least
make
a
statement
before
the
adjudicating authority or the court of first
instance that he/she was not gainfully
employed or was employed on lesser
wages. Para 38.2 and 38.3 are extracted:

38.2. The aforesaid rule is subject
to the rider that while deciding the issue of
back wages, the adjudicating authority or
the court may take into consideration the
length
of
service
of
the
employee/workman,
the
nature
of
misconduct, if any, found proved against
the
employee/workman,
the
financial
condition of the employer and similar other
factors.

38.3. Ordinarily, an employee or
workman whose services are terminated
and who is desirous of getting back wages
is required to either plead or at least make a
statement before the adjudicating authority
or the court of first instance that he/she was
not gainfully employed or was employed
on lesser wages. ...

11. Applying the principles in the facts and
circumstances of this case, termination of the
respondent/petitioner was not held to be
wrongful by the writ Court. Rather, the writ
Court was of the opinion that a lesser
punishment would suffice having regard to the
guilt of the respondent/petitioner. Further,
respondent nowhere pleaded that he was not
gainfully employed or employed on lower wages
during the period of dismissal of service.
Accordingly, it cannot be said that the guilt of the
respondent/petitioner stood wiped off while he
was punished, rather, reinstatement was directed
as a consequence of imposition of a lesser
punishment, the respondent/petitioner would not
be entitled to back wages, nor, consequential
benefits as a consequence of such reinstatement.

12. On specific query, learned counsel
for the respondent/petitioner fairly submits
that the respondent has not assailed the
impugned writ Court order, to the extent the
learned Single Judge upheld the enquiry and
the guilt of the petitioner.

13. In the circumstances, while
imposing lesser punishment, in the opinion of
the disciplinary authority the respondent is
not entitled to wages for the period he has not
performed his duties would be justified in
view of Deepali Gundu (supra).

14. The impugned order is, accordingly,
set aside to the extent it directs payment of
back wages with all consequential benefits.
Having
regard
to
the
fact
that
the
respondent/petitioner was out of employment
for eight long years, it would be equitable that
30% of back wages be paid to the
respondent/petitioner for the period he was
out of employment. The same shall be
computed and released by the appellant-bank
within three months from the date of filing of
certified copy of this order.

15. No cost.
----------
(2023) 5 ILRA 1581
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 1078 of 2023

Imran Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Akhilesh Kumar, Sri Akhilesh Chandra Shukla
1582 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

Civil Law - Service Matter - Compassionate
Appointment - Married brother - Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 - Rule 2 clause (c) sub-clause
(iv),
'Unmarried
brothers,
unmarried
sisters and widowed mother dependent on
the deceased Government servant, if the
deceased
Government
servant
was
unmarried' - Writ petition filed seeking to
declare the expression 'unmarried' in the
said Rule ultra vires. Held: Rule-making
authority included brothers/sisters of the
deceased Government servant in the
definition of family provided they were
unmarried, and at the same time, the
Government servant was also unmarried.
If the Government servant is married,
then he has a dependent wife/children
who are primarily his responsibility. The
Court cannot sit in appeal over the
judgment and wisdom of the employer
in not including unmarried brothers and
sisters within the definition of family of
a married Government servant. Neither
would the Court under Article 226 of
the
Constitution
have
any
role
in
determining as to which family member
should be included/excluded from the
definition of family for the purpose of
compassionate
appointment.
Court
cannot suggest the manner in which the
rule-making authority should structure
or restructure the definition of family.
Nothing
to
show
as
to
how
the
exclusion of unmarried brothers/sisters
from the definition of family of a
married
Government
servant
is
manifestly arbitrary. Impugned Rule
would not fall within the embargo of
Article 14 of the Constitution of India.
(Para 18, 19)

Dismissed. (E-5)

List of Cases cited:

1. Mohd Ikram Vs St. of U.P. & anr., Writ-A No.
59704 of 2012, decided on 19.11.2012

2. State of T.N. Vs P. Krishnamurthy, (2006) 4
SCC 517

3. Cellular Operators Association of India & ors.
Vs Telecom Regulatory Authority of India & ors.,
(2016) 7 SCC 703

4. Indian Express Newspapers (Bombay) (P)
Ltd. Vs U.O.I., (1985) 1 SCC 641

5. Shayara Bano Vs U.O.I. & ors., (2017) 9 SCC

6. Khoday Distilleries Ltd. & ors. Vs St. of Karn.
& ors., (1996) 10 SCC 304

7. Sharma Transport Vs Government of A.P. &
ors., (2002) 2 SCC 188

(Delivered by Hon'ble Suneet Kumar, J.
&
Hon'ble Rajendra Kumar-IV, J.)

1. Heard learned counsel for the
parties.

2. By the instant petition, petitioner
seeks to declare the expression ''unmarried'
ultra vires, in sub-clause (iv) of clause (c)
of Rule 2 of Uttar Pradesh Recruitment of
Dependents of Government Servants Dying
in Harness Rules, 19741. Further, petitioner
seeks quashing of the order dated 7
September 2020, passed by the second
respondent,
Senior
Superintendent
of
Police,
Bulandshahar,
rejecting
the
application submitted by the wife of the
deceased-employee seeking appointment of
the petitioner (brother-in-law) under the
Rules, 1974.

3. The facts briefly giving rise to the
instant writ petition is that the brother of
the
petitioner,
namely,
Javed
Khan,
working as constable in civil police,
unfortunately died-in-harness on 27 August
2021, in an accident. The deceasedemployee left behind his wife, aged about,
5 All. Imran Khan Vs. State of U.P. & Ors.
1583
33 years and three minor sons, aged about,
10, 9 and 5 years, respectively. Apart from
his family, the deceased-employee left
behind his parents and three brothers,
including,
the
petitioner.
The
third
respondent/wife of the deceased-employee
made an application on 12 August 2022, to
the second respondent, requesting that
petitioner
be
given
compassionate
appointment under Rules, 1974, in lieu of
her, as he was looking after her minor
children after the death of her husband. It is
further stated that petitioner is unmarried
and was dependent on her husband. The
application came to be rejected by the
impugned order dated 7 September 2022,
passed by the second respondent, recording
therein that petitioner does not fall within
the definition of ''family' under Rules,
1974, being unmarried brother of the
deceased-employee who was married.

4. Reliance has been placed by the
learned counsel for the petitioner on the
decision rendered by the Single Judge in
Mohd Ikram Versus State of U.P. and
another2.

5. The definition of ''family' reads
thus:

"2(c) "family" shall include the
following
relations
of
the
deceased
Government servant:

(i) Wife or husband;

(ii) Sons/adopted sons;

(iii)...........

(iv)Unmarried
brothers,
unmarried sisters and widowed mother
dependent on the deceased Government
servant, if the deceased Government
servant was unmarried."

6. Rules, 1974 came to be amended
from time to time3. However, sub-clause
(iv) continued as such. Accordingly,
unmarried brothers/sisters of married
government servant was not included in
the definition of family.

7. In the given facts, the impugned
Rule remains the same, insofar, it relates
to the petitioner, prior to the amendment
and thereafter. Sub-clause (iv) of Rule 2
(c), mandates that unmarried brothers
dependent on the deceased Government
servant, ''if the deceased Government
servant was unmarried' would fall within
the definition of the expression ''family'.
Petitioner is unmarried but as per his
case, his brother/deceased employee was
married having a wife and three sons. In
other words, the deceased employee was
not unmarried i.e. not having a family,
but, otherwise.

8. Learned counsel for the petitioner
submits that the expression ''unmarried'
brothers/sisters
of
the
deceased
''unmarried' Government servant in subclause
(iv)
is
manifestly
arbitrary,
accordingly, violative of Article 14 of the
Constitution of India.

9. It is submitted that unmarried
brother can be dependent upon the
married Government servant apart from
his family i.e. wife and children. In this
backdrop, it is submitted that sub-clause
(iv) of Rule 2(c) is manifestly arbitrary
while imposing the condition that
''unmarried'
brother
cannot
be
dependent upon a married deceased
employee.
1584 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The learned Standing Counsel for
the
State
submits
that
a
married
Government servant has a separate and
distinct
family
and
the
unmarried
brothers/sisters cannot be said to be
dependent upon of the married government
servant. His first obligation is towards his
own family. In the facts of the case
petitioner has other brothers and parents.
Petitioner is dependent upon them. The writ
petition lacks merit.

11. Rival submissions fall for
consideration.

12. The question that arises for
consideration
is
as
to
whether
the
impugned Rule i.e. sub-clause (iv) of Rule
2(c) is manifestly arbitrary/unreasonable to
render it violative of Article 14 of the
Constitution of India.

13. There is a presumption in favour of
constitutionality or validity of a subordinate
legislation and the burden is upon him who
challenges it to show that it is ultra
vires/invalid. It is also well recognized that
subordinate legislation can be challenged
under any of the following grounds:

"(a)
Lack
of
legislative
competence to make the sub-ordinate
legislation.

(b) Violation of Fundamental
Rights guaranteed under the Constitution
of India.

(d) Failure to conform to the
Statute under which it is made or exceeding
the limits of authority conferred by the
enabling Act.

(e) Repugnancy to the laws of the
land, that is, any enactment.

(f)
Manifest
arbitrariness/
unreasonableness (to an extent where the
Court might well say that the legislature
never intended to give authority to make
such rules)."

(Refer: State of T.N. vs. P.
Krishnamurthy4 & Cellular Operators
Association of India and others vs
Telecom Regulatory Authority Of India
and others5)

14. One of the tests for challenging
the
constitutionality
of
subordinate
legislation
is
that
the
subordinate
legislation
should
not
be
manifestly
arbitrary. Also, it is settled law that
subordinate legislation can be challenged
on any of the grounds available to
challenge
plenary
legislation.
(Refer:
Indian Express Newspapers (Bombay)
(P) Ltd. vs. Union of India6)

15. In Shayara Bano Versus Union
of India and others7, Justice Rohinton
Fali
Nariman,
upon
examining
the
precedents, was of the opinion that there is
no rational distinction between two types of
legislation i.e. subordinate legislation and
plenary legislation when it is challenged
under Article 14. Para 101 reads thus:

"101. It will be noticed that a
Constitution Bench of this Court in Indian
Express Newspapers v. Union of India,
(1985) 1 SCC 641, stated that it was settled
law that subordinate legislation can be
challenged on any of the grounds available
for challenge against plenary legislation.
This being the case, there is no rational
distinction between the two types of
legislation when it comes to this ground of
challenge under Article 14. The test of
manifest arbitrariness, therefore, as laid
down in the aforesaid judgments would
5 All. Imran Khan Vs. State of U.P. & Ors.
1585
apply to invalidate legislation as well as
subordinate legislation under Article 14.
Manifest arbitrariness, therefore, must be
something
done
by
the
legislature
capriciously, irrationally and/or without
adequate determining principle. Also, when
something is done which is excessive and
disproportionate, such legislation would be
manifestly arbitrary. We are, therefore, of
the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us
above would apply to negate legislation as
well under Article 14."

16. That takes us to consider the test
of 'manifest arbitrariness'. It is well
explained in Khoday Distilleries Ltd. and
others vs. State of Karnataka and
others8, which reads thus:

"13. . . . The tests of arbitrary
action which apply to executive actions do
not
necessarily
apply
to
delegated
legislation.
In
order
that
delegated
legislation can be struck down, such
legislation must be manifestly arbitrary; a
law which could not be reasonably
expected to emanate from an authority
delegated with the law-making power. In
the case of Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India
[(1985) 1 SCC 641 : 1985 SCC (Tax) 121 :
(1985) 2 SCR 287], this Court said that a
piece of subordinate legislation does not
carry the same degree of immunity which is
enjoyed by a statute passed by a competent
legislature. A subordinate legislation may
be questioned under Article 14 on the
ground
that
it
is
unreasonable;
"unreasonable not in the sense of not
being reasonable, but in the sense that it is
manifestly arbitrary" . . . In India,
arbitrariness is not a separate ground
since it will come within the embargo of
Article 14 of the Constitution. But
subordinate
legislation
must
be
so
arbitrary that it could not be said to be in
conformity with the statute or that it
offends Article 14 of the Constitution."
 (emphasis supplied)

17. Also in Sharma Transport vs.
Government of A.P. and others9, the
Supreme Court held as follows:

"25. . . . The tests of arbitrary
action applicable to executive action do not
necessarily apply to delegated legislation.
In order to strike down a delegated
legislation as arbitrary it has to be
established
that
there
is
manifest
arbitrariness. In order to be described as
arbitrary, it must be shown that it was not
reasonable and manifestly arbitrary. The
expression "arbitrarily" means: in an
unreasonable manner, as fixed or done
capriciously or at pleasure, without
adequate
determining
principle,
not
founded in the nature of things, nonrational, not done or acting according to
reason or judgment, depending on the will
alone. . . ."

 (emphasis supplied)

18. In the backdrop of the aforenoted
proposition of law, the rule making
authority included brothers/sisters of the
deceased Government servant in the
definition of family provided they were
unmarried and at the same time the
Government servant was also unmarried. In
other words, if the Government Servant is
married
then
he
has
a
dependent
wife/children
who
are
primarily
his
responsibility. The expression ''unmarried'
in the impugned Rule appears to have been
incorporated with a purpose that a married
Government servant would have a family
of his own, therefore, in the opinion of the
rule making authority the unmarried
1586 INDIAN LAW REPORTS ALLAHABAD SERIES
brothers and sisters cannot be said to be
dependent on the married Government
servant in the sense that dependency of
wife/children is primarily to the exclusion
of brothers/sisters of the Government
Servant.
The
married
brothers/sisters
certainly would have independent family
from that of the Government servant.

19. The Court cannot sit in appeal
over the judgment and wisdom of the
employer in not including unmarried
brothers and sisters within the definition of
family of a married Government servant.
Neither, the Court under Article 226 of the
Constitution would have any role in
determining as to which family member
should be included/excluded from the
definition of family for the purpose of
compassionate appointment. The Court
cannot suggest the manner in which the
rule making authority should structure or
restructure the definition of family. The
learned counsel for the petitioner is unable
to show as to how exclusion of unmarried
brothers/sisters from the definition of
family of married. Government servant is
manifestly arbitrary.

20. In the given facts, it is not in
dispute that the petitioner is having
brothers, as well as, his parents. Further, the
deceased employee has left behind his wife
and
three
minor
children.
In
the
circumstances, it cannot be said having
regard to the definition of family that
petitioner was dependent upon the deceased
government servant. There is a distinction
between someone being dependent and the
other person receiving financial assistance.
Petitioner was aged about 25 years at the
death of the Government servant and
presently aged about 29 years. Petitioner
may
have
been
receiving
financial
assistance intermittently but that would not
make him dependent on his brother, having
regard to the fact that the deceased
Government servant has a family of his
own.

21. The impugned Rule may appear to
be arbitrary by excluding the unmarried
brothers/sisters from the definition of
family of a married Government servant
but that is not sufficient to make the Rule
manifestly arbitrary so as to declare the
Rule arbitrary under Article 14. The Rule is
neither irrational, and/or, without adequate
determining the principle or capricious to
exclude unmarried brothers/sisters. Neither
the impugned Rule is unreasonable in the
sense of not being reasonable or rational.
Merely alleging that the Rule is arbitrary
would not be a sufficient ground to bring it
within the embargo of Article 14 of the
Constitution of India. The subordinate
legislation must be so arbitrary that it could
not be said to be in conformity with the
statute or that it offends Article 14 of the
Constitution i.e. not founded in the nature
of things, non-rational, not done or acting
according
to
reason
or
judgment,
depending on the will of the authority
alone. The impugned Rule cannot be held
to be manifestly arbitrary merely for the
reason that it is not of universal application
to the siblings of the Government servant
but
only
confined
to
unmarried
Government
servant
and
unmarried
brothers/sisters.

22. Mohd Ikram (supra) while
observing ''there is no embargo that the
deceased Government servant should be an
unmarried person is on misreading of subclause (iv) of Rule 2(c). In the facts arising
therein, the deceased/Government servant
was a married person, therefore, the
unmarried
brother
of
the
deceased
Government servant stands excluded from
5 All. Prabhat Kumar Tiwari Vs. State of U.P. & Ors.
1587
the definition of family. The decision, in
Mohd Ikram (supra), is per incuriam,
accordingly overruled.

23. Having regard to the discussions
hereinabove, the writ petition being devoid
of merit is, accordingly, dismissed. The
impugned Rule would not fall within the
embargo of Article 14 of Constitution of
India.

24. The dismissal of the writ petition,
however,
would
not
preclude
the
respondent-wife
of
the
deceased
Government servant from making an
application for compassionate appointment.
In case such an application is made, the
same shall be considered by the competent
authority on merit.

25. No cost.
----------
(2023) 5 ILRA 1587
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 6062 of 2023

Prabhat Kumar Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Seemat Singh

Counsel for the Respondents:
C.S.C.

Civil Law - Service Matter - Uttar
Pradesh Sub-Inspector and Inspector
(Civil
Police)
Service
(Second
Amendment) Rules, 2016 - Rule 10
provides 'Age-10. A candidate for direct
recruitment must have attained the age
of 21 years and must not have attained
the age of 28 years on the first day of
July
of
a
calendar
year
in
which
vacancies for direct recruitment are
advertised'. Petitioner challenged the
validity of Rule 10. Petitioner, was born
on 01 July, consequently attained the
age of 28 years and one day on the
cutoff date; hence, he was hit by Rule
10. Held: Petitioner was unable to show
how the amendment in the Rules of
2016
makes
Rule
10
manifestly
arbitrary,
merely
because
the rulemaking authority does not want a
candidate for the post of Sub-Inspector
who has attained the age of 28 years on
the cutoff date to be considered eligible
for the post. (Para 24)

Dismissed. (E-5)

List of Cases cited:

1. State of T.N. Vs P. Krishnamurthy, (2006) 4
SCC 517

2. Cellular Operators Association of India & ors.
Vs Telecom Regulatory Authority of India & ors.,
(2016) 7 SCC 703

3. Indian Express Newspapers (Bombay) (P)
Ltd. Vs U.O.I., (1985) 1 SCC 641

4. Khoday Distilleries Ltd. & ors.Vs State of
Karnataka & ors., (1996) 10 SCC 304

5. Sharma Transport Vs Government of A.P. &
ors., (2002) 2 SCC 188

6. U.O.I. Vs Pushpa Rani & ors., (2019) 9 SCC
242

7. Chandigarh Administration Vs Usha Kheterpal
Waie & ors., (2011) 9 SCC 645

8. Maharashtra Public Service Commission Vs
Sandeep Shriram Warade, (2019) 6 SCC 362

9. Punjab National Bank Vs Anit Kumar Das,
2020 SCC Online SC 897